Ningbo found after divorce ex-husband marriage gift of third party property how to do
Two years after her divorce, Ms. Wu accidentally discovered that her ex-husband had repeatedly transferred money to a third party and purchased luxury goods during the marriage, totaling more than 300,000 yuan. The marriage is divorced, can this "old debt" still be pursued? The conclusion comes first: yes. After divorce, if it is found that the other party has donated the joint property of the husband and wife to a third party during the marriage, it may still sue for the return of the third party. The limitation of action is generally three years, starting from the date when it knows or should know that the rights have been infringed and the obligor; however, if the divorce agreement has already dealt with this part of the property or explicitly waived the rights, it may be difficult to claim. This paper focuses on the legal basis, limitation calculation, operation path and boundary situation of recovery.
Why can 1. still pursue after divorce: the gift is invalid and the right to return the claim.
The legal basis for recovery is fully consistent with marital recourse and is not extinguished by divorce. Article 153, paragraph 2, of the the People's Republic of China Civil Code stipulates: "Civil juristic acts that violate public order and good customs are invalid. "One party's donation of the joint property of the husband and wife without compensation in order to maintain an improper relationship with a third party during marriage is an act contrary to public order and good customs, and the gift is invalid from the beginning. Article 157 provides that after a civil juristic act is invalid, the property acquired by the perpetrator as a result of the act shall be returned. At the same time, Article 1062 stipulates that husband and wife have equal rights to deal with common property, and one party's unauthorized disposition of common property lacks legal basis. Divorce merely dissolved the marriage and did not change the legal assessment that "the gift was null and void when it occurred"-therefore, if the fact of a marital gift is discovered after a divorce, the no-fault party may still claim the return to a third party on the basis of an invalid gift or unjust enrichment.. In practice, such cases are mostly based on "gift contract disputes" or "unjust enrichment disputes" as the case, the object of prosecution is the actual benefit of the third party, if the former spouse and the third party colluded to transfer property, it can also be listed as a co-defendant to claim joint and several return. It is important to distinguish that if, at the time of divorce, both parties have reached an agreement on the disposition of all common property (including the gifted part) and expressly do not pursue each other, or if the relevant rights have been waived in the agreement, the request for return may be blocked by the "right has been disposed of"-this is the biggest difference between post-divorce recourse and marital recourse.
The issue of 2. limitation: when does the three-year period start?
Article 188 of the the People's Republic of China Civil Code stipulates that the limitation period for requesting protection of civil rights from the people's court is three years; the limitation period is calculated from the date when the obligee knows or should have known that the rights have been damaged and the obligor. To apply to the "gift found after divorce" scenario: the starting point is the date on which it "knew or should have known that the ex-husband had given common property to a third party"., not the date of divorce or the date of the act of giving. Ms. Wu accidentally discovered the transfer record two years after her divorce. The date she knew that her rights were violated was "at the time of discovery". As long as she filed a lawsuit within three years after discovery, the statute of limitations did not exceed. However, there are three points that need to be reminded: first, if the fact of gift has been discovered but not claimed at the time of divorce, the statute of limitations may be calculated from then on, and the lawsuit will not be prosecuted until several years after the divorce, thus there is a risk of statute of limitations defense; Second, the determination of "should know"-if the donation amount is huge and the flow is abnormal, the court may think that the parties can find it with a little attention, and the starting point, the clearer the evidence (e. g. chat records at the point in time of discovery, bank inquiry records), the more favorable it is; third, there is a suspension or interruption of the statute of limitations-the filing of a lawsuit, the other party's consent to performance, etc. can interrupt the recalculation of the statute of limitations, but the burden of proof is on the claimant. On the whole, the sooner the property transferred in marriage is discovered, the sooner the prosecution is filed, and the more "old accounts are turned over after years of divorce", the more evidence of "when to find out" should be prepared.
How much can 3. be recovered: scope and three types of special circumstances
the scope of return is limited to the gift property, usually the entire amount of the principal transferred-the common property of the husband and wife is jointly owned, and the claimant may claim the full return instead of "half. Three types of special circumstances need to be paid attention to: first, small gifts and daily consumption -520, 1314 red envelopes, holiday gifts, daily meals, etc., if they are not closely related to improper relations, may be identified as general gifts or consumer expenses, which are difficult to recover in full; Second, transfer in the name of alimony-if a third party can prove that the money is reasonable alimony paid by the ex-husband for illegitimate children, the court starts from protecting the interests of minor children, may not return or reduce the reasonable part; Third, cash and in kind-cash gifts are difficult to prove the amount and flow direction, in kind (luxury goods, real estate) with invoices, logistics records of recoverable in kind or equivalent price, consumed, unable to return the discount compensation. The object of recovery is not limited to "transfer to the third party himself": payment of rent, payment of bills on behalf of a third party, transfer of money to his relatives, etc., can also be included in the scope of recourse if there is evidence that the actual beneficiary is a third party.
4. Operation Path: Evidence, Preservation and Litigation
it is suggested to proceed in four steps: the first step is to fix the evidence-to obtain bank running water (printed and sealed at the counter), WeChat Alipay transfer record (to keep the original carrier), consumption voucher, chat record, and to confirm the donation time, amount and third party identity information; According to Yinzhou Court's White Paper on Marriage and Family Trial (2019-2021), electronic evidence has many defects and is difficult to accept. The more complete the original evidence chain, the more favorable. The second step is to count the amount-make a list of gifts in chronological order, distinguish between claims and difficult claims, and calculate the total amount. The third step is to apply for preservation-if a large donation is involved, the lawsuit shall also apply for freezing the account of the third party and sealing up the property under its name (such as the donated real estate and vehicles) to prevent the transfer; The fourth step is to file a lawsuit-within three years from the date of discovery, to sue the defendant (third party) for the dispute over the gift contract or the dispute over unjust enrichment; If the divorce agreement does not divide the part of the property, it may also be considered in a "post-divorce property dispute. If the third party property clues are unknown, you can apply for a court investigation order to obtain its bank flow, real estate registration information, to verify the whereabouts of the donated property.
5. common mistakes
myth 1: You can't chase after a divorce. True: Divorce does not affect recourse as long as it is not time-barred and the property is indeed common property within marriage.
Myth 2: You can only get half back. Positive solution: the common property of husband and wife is common, can claim the full return, there is no "first half and then half" argument.
Myth 3: Cash or physical objects cannot be proved and cannot be recovered. Positive solution: consumption records, shopping vouchers, logistics information, chat records can be used as evidence, can prove the use and beneficiaries, cash and physical consumption can also claim return or discount compensation.
Myth 4: If it is not mentioned in the divorce agreement, it will give up by default. Positive solution: failure to mention does not mean giving up, but if it is expressly agreed in the agreement that "the division of property is completed and no further investigation is conducted" or if the relevant amount has been actually covered, the right may be deemed to have been disposed of; whether to give up must be judged in conjunction with the meaning of the agreement.
The connection between 6. and the system of "re-division after divorce"
gifts of property to a third party within marriage are often only a form of transfer of property by the spouse; if the other party also conceals other common property (hidden deposits, transfer of real estate, private accounts, etc.) at the time of divorce, Article 1092 of the Civil Code applies: one spouse hides, transfers, sells, destroys, squanders the common property of the husband and wife, or forges the joint debt of the husband and wife in an attempt to embezzle the other property, when the divorce divides the joint property of the husband and wife, the party may be divided less or not; if the other party discovers the above-mentioned behavior after the divorce, it may file a lawsuit in the people's court to request the division of the joint property of the husband and wife again. Article 84 of the (I) of Interpretation makes it clear that the limitation period for the re-division of the claim is three years, calculated from the date of discovery by the parties. Looking at the two paths: recovering the property donated to a third party within marriage belongs to "returning to a third party"; Recovering the common property that has been concealed and transferred belongs to "re-dividing the property to the spouse"-the two paths can be parallel, but the evidence requirements are different: the former should prove that the gift is invalid and benefit the third party, while the latter should prove that the other party has concealed the transfer and the scope of the property. In practice, it is suggested to take a comprehensive inventory of the flow of marital property (bank flow, real estate registration, industrial and commercial files), judge the amount of gifts and transfers, and then decide on the combination of litigation, so as to avoid only chasing the third party and omitting the hidden part of the former spouse.
7. FAQ
who does the recovered money end up with? Will remarriage affect it?
In the case of a return lawsuit filed after divorce, the court generally orders the third party to return the money to the original spouse who filed the lawsuit, and the money no longer enters the common state of the former spouse. Remarriage does not affect the enforcement of the existing right to return and the effective judgment.
The divorce agreement says "no common property can be divided", can you still pursue the gift within the marriage?
Depending on the meaning of the text: the general expression of "no common property" is usually aimed at the property known to both parties. If the fact of the gift is unknown at that time and the amount is huge, the court tends not to determine that it has been abandoned. If the agreement clearly lists and disposes of the relevant funds or stipulates that "other debts and claims will not be held accountable for each other", the recourse space will be narrowed and should be judged in combination with specific terms.
What the ex-husband gave to the third party was his personal property before marriage. Can he chase it?
Can't. The premise of recourse is that the donated property belongs to the joint property of the husband and wife, and the spouse has no right to recover it if one party gives it to another with his or her personal property or property determined in the will or gift contract before marriage. The source of funds needs to be judged first by running water and time.
Can a third party transfer the money to their parents or buy a house?
It can be pursued: if a third party transfers the donated money to a relative or purchases a real estate vehicle, if it is a free transfer or malicious transfer, it may claim revocation or addition in the proceedings. The more covert the transfer, the more it needs to be done in conjunction with an investigative order and a means of preservation.
It was nearly three years since the divorce was discovered. Is it still too late?
The statute of limitations starts from the date when you "know or should know". If you really discovered the fact of the gift only recently, it will be too late for the three-year period. However, it is necessary to fix the evidence of "discovery time" as soon as possible (such as checking the records of running water and communication records with relatives and friends on that day), and pay close attention to the prosecution to avoid falling into a passive position on "when to know.
Practical Experience of 8. Lawyers
first of all, whether we can pursue it: if we give the common property belonging to two people to others within marriage, the effectiveness of this punishment itself is problematic, and divorce will not make recourse disappear. The first step in the action is to confirm the scope of the recourse-what is common property, how long the gift lasted, how large the amount was, and whether it has been dealt with in the divorce settlement or explicitly waived. If the original agreement stated that "the property under each name belongs to each other" or directly gave up the right to this part, the difficulty of recourse would be obviously greater, so it is necessary to see this boundary clearly before deciding how to move.
Evidence and preservation decisions can really get the money back. Sort out the transfer records, consumption records and purchase vouchers according to the time line, and lock in who is the party receiving the money and how much the amount has accumulated. When the amount is large and the other party is worried about the continued transfer, apply for property preservation while suing, and block the opening first. The awareness of timeliness is also very important. Generally, it starts from when you know or should know that your rights have been infringed and who the other party is. After discovering it, you should claim it as soon as possible. Don't wait and see. A lot of evidence will become difficult over time.
On the path, you can claim that the relevant gift behavior is invalid and require the recipient to return it. At the same time, pay attention to how to connect with the system of dividing the common property again after divorce, avoid repeated claims on the same sum of money, and do not miss other possible transfer behaviors of the other party. At the negotiation level, this kind of money can be recovered and used as a bargaining chip to re-divide the property. First find out how much can be recovered, and then decide what posture to use. If the divorce was agreed at the beginning, it is also necessary to evaluate whether there are any reasons for revoking the agreement. Only by looking at these lines together can the plan be complete.
After divorce, it is found that the property of a third party is donated in marriage, and the key to recourse lies in three "times" and one "qualitative": the gift occurs in marriage (time one), belongs to the joint property of the husband and wife (qualitative), prosecution within three years from the date of discovery (time two), and the divorce agreement does not give up the right (time three). In practice, a large number of losses are not lost in the substantive rules, but in the loss of evidence and limitation disputes-therefore, it is more important to obtain running water, fix the original carrier, make a list, and apply for preservation simultaneously after discovery than to struggle with "can we win. If the wording of the divorce agreement is broad or it has been nearly three years since it was discovered, first evaluate the terms of the agreement and the statute of limitations before deciding on the litigation strategy to avoid hasty prosecution against the statute of limitations defense.