What can be agreed upon in Ningbo marital property agreement

Xiao Wang and his wife want to sign a property agreement after they get married to make clear the property ownership and management methods of both parties, but they are not clear about which contents can be agreed and which cannot be agreed. Direct conclusion: the marital property agreement can agree on the ownership of pre-marital property and post-marital property (separate ownership, joint ownership or part of each part of the joint ownership), the management and use of property and disposal rules, debt commitment, housework compensation and financial assistance, etc; however, it cannot be agreed to restrict personal rights (freedom of divorce, personal injury exemption), cannot damage the legitimate rights and interests of third parties (evasion of debts), and must not violate the mandatory provisions of the law and public order and good customs. The agreement is in written form, involving real estate but also for the registration of changes, otherwise it is difficult to fight against third parties.

Legal basis of 1.: "Consensual Property Regimes" of Article 1065"

Article 1065 of the the People's Republic of China Civil Code stipulates that both men and women may agree that the property acquired during the existence of the marriage relationship and the pre-marital property shall be owned by themselves, jointly or partially owned by themselves or partially jointly owned by themselves; the agreement shall be in written form; if there is no agreement or the agreement is not clear, the provisions of Articles 1062 and 1063 of this Law shall apply. Any agreement between spouses regarding property acquired during the marriage as well as premarital property shall be legally binding on both parties. If the husband and wife agree that the property acquired during the marriage shall be owned by each other, the debts incurred by the husband or wife to the outside world shall be paid off with the personal property of the husband or wife if the relative knows the agreement.

By breaking up the articles, the marital property agreement has four levels of validity and boundaries: first, the agreed object includes both the property acquired after marriage and the premarital property-the premarital property can also be transferred to common ownership or partial common ownership by agreement; second, the agreement must be written, and oral agreement does not produce binding force between both parties; third, the internal binding force is direct and complete, "It is legally binding on both parties" and takes effect without notarization (notarization only enhances the probative force); Fourth, the external effect is limited-"the relative person knows the agreement" can pay off personal debts with personal property, and if he does not know, he can still claim to both husband and wife. This last point is the key to understanding the limitations of the "debt isolation clause.

Contents that can be agreed upon by 2.: Five types of clauses

1. property attribution clause: stipulate item by item the attribution of pre-marital property and post-marital property -- all owned by themselves, all jointly owned, or "partly owned by themselves, partly jointly owned" according to the list (for example, the property belongs to the registered party and the deposits are shared in proportion). The more specific the agreement, the less likely it is to dispute.
2. Property management and disposition clause: it is agreed how to manage the salary and bonus, the large amount of expenditure must be agreed by both parties, the scope of one party's personal debt and business investment, and the boundary of the family agency right is defined.
3. Debt-bearing terms: it is agreed that the debts under their respective names shall be borne by them, and the borrower shall be responsible for the large amount of debt without the consent of the other party. Note: The agreement is only valid within the husband and wife and cannot be used against bona fide creditors (article 1065, paragraph 3, of the Civil Code)-creditors who do not know the agreement may still claim joint debts (article 1064 of the Civil Code).
4. Provisions on Compensation for Housework and Economic Assistance: Article 1088 of the Civil Code allows both parties to agree on specific measures for compensation for housework (the party with more obligations such as raising children, caring for the elderly and assisting with work can be compensated when divorcing); Article 1090 allows one party to agree on financial assistance when living in difficulties. Clearly outlining the calculation method and payment arrangements can help avoid disputes over “how much more needs to be paid” later on.
5. post-divorce property disposal and gift arrangement: it can be agreed that specific property (such as the premarital property of one party) will belong to the other party or children when the divorce occurs; if the common property is agreed to be given to children, the judgment caliber of the gift clause of the divorce agreement shall be considered simultaneously (see Ningbo Practice Section for details), and the effective conditions and performance methods shall be specified.

What 3. cannot agree on: Four red lines

1. Red line one: Restriction of personal rights. Provisions such as "no divorce", "divorce must be compensated for sky-high liquidated damages", "waiver of child custody and visitation rights" and "personal injury exemption" shall not be agreed-the freedom of divorce and parent-child relationship are personal rights and cannot be disposed of through property agreements, and such provisions are invalid.
2. Red Line 2: Harm the interests of the third party and evade debts. If the property agreement is attributed to one party and the debt agreement to the other party in order to avoid the debt, the creditor may claim revocation in accordance with Article 538 of the Civil Code, etc., and the malicious collusion may also be found invalid (Article 154).
3. Red line three: Violation of mandatory provisions of law and public order and good customs. Such as the agreement "maintenance fee" "gambling debts borne by the other party" "derailed clean out of the house punitive provisions", the former is illegal, the latter's validity is doubtful, the court more combined with fault and actual damage discretion rather than the implementation of the order.
4. Red line four: Disposition of property that does not belong to you. It shall not be agreed to dispose of the property of a third party (e. g. property in the name of the parents, the equity of another person), only the legal property in the name of both parties shall be disposed.

Key points of 4. operation: What to do after signing the agreement

1. Signed in writing and kept on file: Both parties signed and dated, and each kept the original to avoid "not finding the agreement".
2. Real estate change registration: If it is agreed that the real estate belongs to one party or is added, the transfer registration or name addition procedures shall be handled in time at the real estate registration agency-Article 209 of the Civil Code stipulates that the real right change only occurs after the real estate is registered. If the real right change only occurs after signing the agreement but not transferring the ownership, the agreement only produces the creditor's right effect between the two parties and cannot oppose the bona bona bona bona bona bona bona bona bona bona fide third party, and the other.
3. Simultaneous change of vehicles and stock rights: if the ownership of vehicles and stock rights is agreed, the change of driving license, register of shareholders and industrial and commercial change registration shall be handled simultaneously.
4. The internal and external effects are stated in the terms of debt: it is clear that "the borrower shall bear the large amount of debt without the consent of the other party", and at the same time, it is known that it can not fight against the bona fide creditors, so as to avoid the mistake of "signing the agreement debt has nothing to do with me".
5. Notarization when necessary: Notarization does not change the effective requirements, but it can enhance the probative force, reduce the disputes of "non-personal signature" and "coerced signature", and deal with suggestions involving major property or remarried families.

5. common mistakes

1. Misunderstanding 1: The marital property agreement can only stipulate the property after marriage. Pre-marital property can also be subject to an agreement regarding its ownership, and marital agreements often include both parties’ pre-marital real estate and savings in their provisions.
2. Misunderstanding 2: If the debt is agreed to belong to one party, the creditor will not be able to find himself.. Internal agreements cannot be used against bona fide creditors (Civil Code, articles 1065, paragraph 3, and 1064), and external common debts may still be incurred before internal recovery.
3. Misunderstanding 3: No registration is required after signing the agreement. The agreement involving the property must be registered or added to the name, and the unregistered cannot be opposed to a bona fide third party, nor does it produce a change in property rights.
4. Misunderstanding 4: It can be agreed in the agreement that "whoever proposes divorce will leave the house clean". The provisions restricting the freedom of divorce are invalid or doubtful, and the court will not restrict the right of action of either party.
5. Myth 5: Signing an agreement will "lock up" the property, once and for all. The agreement may be changed or terminated by mutual consent, and if the newly acquired property is not within the scope of the agreement, it shall still be dealt with in accordance with the statutory common property system.

Examples of 6. Invalid Clauses and Notarized Registration Process

You can quickly self-check whether the agreement steps on the line by referring to the following "negative list:

1. Examples of typical invalid or high-risk clauses: "Either party shall not file for divorce, or compensate XX million yuan"-restriction of divorce freedom, invalid; "In case of divorce, custody of the child belongs to Party A, and Party B gives up visiting"-disposition of personal rights, invalid; "Party B shall be responsible for personal injury, and Party A shall not bear any responsibility"-personal injury exemption, invalid; "The money borrowed to repay Party A's personal gambling debts shall be borne by Party B"-violation of public order and good customs and damage to Party B, invalid.
2. agreement notarization process: both parties bring their identity cards, household registration books, marriage certificates and property ownership certificates to the notary agency to apply for notarization of the marital property agreement, and the notary will issue a notarial certificate after examining the meaning expression and the authenticity of the property; the notarization fee is charged according to the property subject matter, and each notary office in Ningbo can consult by telephone. Notarization is not mandatory, but it is strongly recommended to handle major real estate and equity arrangements.
3. Registration process of adding and changing names of real estate: if the husband and wife agree that the real estate belongs to one party or adding names, it is a change in the share of common property. Both parties jointly apply to the real estate registration agency for transfer registration, submit the agreement, identity certificate, marriage certificate and ownership certificate, and issue a new certificate after paying taxes and fees according to regulations; the name adding after marriage is generally handled according to the common registration, and the specific taxes and materials are subject to the window.
4. modification and dissolution of the agreement: the marital property agreement can be modified or dissolved by mutual agreement in written form; if one party requires modification but the other does not agree, the original agreement shall be implemented; the new property not covered by the agreement still applies the legal common property system, and a supplementary agreement can be signed when necessary.

7. FAQ

Does the marital property agreement need to be notarized

No need, the signature of both parties will take effect (Article 1065 of the Civil Code); Notarization does not constitute an effective requirement, but it can enhance the power of proof, reduce the disputes of "untrue meaning" and "forged signature" in the future, and usually suggest notarization involving major property.

The agreement stipulates that the property belongs to one party, but there is no transfer of ownership. Is it valid?

is effective between both parties, and one party can request the other party to cooperate with the transfer of ownership; but before the transfer of ownership, there is no real right change, which can not fight against the bona fide third party. If the other party sells or mortgages the property to the bona fide third party, the other party can not recover the house itself, and can only claim the liability for breach of contract. Therefore, it is agreed that the property ownership should be registered as soon as possible after the change.

What should remarried couples pay attention to when signing an intramarital agreement

focus on clarifying three parts: the scope and attribution of their respective pre-marital property (including the property shared by the divorce agreement with the former spouse); the arrangement of their respective income and joint expenses after marriage; the arrangement of gift and inheritance to their respective children. Compensation for housework and financial assistance should also be agreed in the agreement to avoid "paying no compensation" for remarried families ".

What if one party goes back on the agreement on the grounds of "being forced"

The party claiming to have been subjected to fraud or duress must provide evidence (such as threatening chat records or evidence of threats to personal safety). If, upon review, the court finds that such fraud or duress indeed occurred, the relevant provisions may be rescinded (in accordance with Articles 148 to 150 of the Civil Code); if no such proof is provided, the agreement shall be performed as agreed.

The property involved in the agreement was purchased before marriage, with mortgage payments made jointly after marriage. How should this be clearly stated?

It should be stated in layers: the source of the down payment and the corresponding ownership share, the part of the joint repayment fund after marriage from the common property, how to calculate and attribute the corresponding value-added of the repayment, so as to avoid the dispute of the joint repayment and value-added compensation only by writing "the house belongs to Party A"; the calculation caliber can be agreed in advance by referring to the conversion idea of "value-added index × joint repayment ÷ 2" in divorce cases.

Can the marital property agreement bind the court's divorce decision?

Legal and effective agreement is an important basis for the court to deal with property-Article 1065 of the Civil Code clearly stipulates that it is legally binding on both parties, and the court will deal with the property agreed by both parties according to the agreement. However, the provisions in the agreement that violate the law, damage the interests of the third party or involve personal rights are invalid and have no binding force, and the property without agreement is still treated according to the legal common property system.

The marital agreement stipulates that the property belongs to one party, will it affect the sale of the house and the loan?

has limited influence: the agreement only takes effect within the husband and wife. If the external subjects such as banks and registration agencies do not know about it, mortgage, loan and transaction are still handled according to the status of registration and contract; therefore, the agreement involving real estate must take effect externally, and registration must be changed. Only signing the agreement can not oppose the bona fide third party, which is also the reason why "agreement + registration" is indispensable.

After the agreement is signed, if one party unilaterally sells the property that was agreed to belong to them, what can the other party do?

If the real estate has been registered in the personal name of the seller and the buyer has acquired it in good faith, the sale is valid, and the other party can claim to divide the price of the house; if the registration is not done after the agreement and the real estate is still registered in the names of both parties, the sale may be invalid or revocable without the consent of the co-owner. In either case, the fundamental guarantee for the other party is to "register as soon as possible" and retain the agreement and the sale to claim the price split.

Practical Experience of 8. Lawyers

When they want to sign a property agreement in marriage, the parties often ask "what can be agreed upon and what can not be agreed". From the experience of handling cases, we must first understand its validity boundary: we can agree on the ownership of property before and after marriage, the rules of property management and disposal, debt commitment, housework compensation and other contents, which are binding on both parties in writing and do not need notarization. However, its external effect is limited-only creditors know this agreement when they agree that their respective property belongs to them and want their personal debts to be paid off only by their personal property, to really fight each other. Keeping the phrase "effective internally and limited externally" in mind is the first lesson in drafting an agreement.

Be sure to be "specific and enforceable" when drafting ". The more detailed the property list, the less likely it is to argue: the location and warrant number of the real estate, the company and proportion of the equity, the account and the approximate amount of the deposit; The debt clause states clearly which of their respective commitments and whether the consent of the other party is required for large debts. At the same time, it is clear that such agreements are only valid within the husband and wife and cannot be used to pit bona fide creditors who do not know about the agreement.In terms of operation rhythm, if real estate is involved, it is not enough to sign an agreement alone. It is necessary to handle the change registration at the same time, otherwise it is difficult to fight against the third party. Involving large amount of property, notarization or lawyer's witness can raise the proof force.

There are several red lines that must be avoided: clauses that restrict the freedom of divorce, stipulate personal injury exemption, and aim at avoiding debts may be deemed invalid, and even discount the whole agreement. A common misconception is that "leaving the house clean" and "no remarriage" are written as chips, and the result is a thunder. When negotiating and signing, it is best to put the true meaning of both parties into words, list them item by item, and keep the evidence of the signing process; If you need to change it after signing, you should also confirm it in writing again. Don't use an oral "re-discussion" to change the agreement that has come into effect, which is tantamount to leaving a gap for disputes in the future.

Marital property agreement is a rational tool for "setting rules for marriage": write down the attribution clearly, divide the debt clearly, agree on compensation fully, with less suspicion within the marriage and less disputes outside the marriage. However, its effectiveness ceiling is equally clear-no personal rights, no third party, no debt evasion, real estate, etc. have to be registered. Suggestions to the parties: the agreement should be specific (itemized list of property), written (signed and dated), landed (real estate registration, vehicle change) and kept on file; If remarriage, large amount of property or complex debts are involved, professionals should be asked to check before drafting, and the "taken for granted agreement" should be changed into "enforceable terms".