Ningbo divorce agreement states that both parties have no common property, can they divide the common house after divorce?

1. Current Case: (China Judgment Document Network) "Civil Ruling Letter for Retrial Review of Civil Applications by Zhang Jun, Wang Shuhua, etc.", Case No.:(2022) Supreme Famin Shen No. 334, Date of Issue: 2022-07-01. Key points of the 2. judgment: although the divorce agreement states that "the two parties have no common property and there is no dispute", the content is inconsistent with the objective facts. the two parties later filed a lawsuit over the ownership and division of the house and the court heard the judgment. the content has been overturned by the objective facts and confirmed by the court's effective judgment. under such circumstances, the parties still claim that the aforementioned statement is wrong in another case and lacks factual and legal basis. Article 119 of the Civil Code A legally established contract is legally binding on the parties. Article 464 A contract is an agreement between civil subjects to establish, modify or terminate a civil legal relationship. The legal provisions on identity relations such as marriage, adoption and guardianship shall apply to the agreements on such identity relations; if there are no provisions, the provisions of this Part may be applied by reference according to their nature. 2. Article 70 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's the People's Republic of China of China, if the husband and wife renege on the issue of property division after divorce by agreement and request the cancellation of the property division agreement, the people's court shall accept it. If, after the trial, the people's court does not find that there was fraud or coercion in the conclusion of the property division agreement, it shall reject the party's claim in accordance with the law. Article 83 If, after divorce, one of the parties sues the people's court for division on the ground that there is still joint property of the husband and wife that has not been disposed of, the people's court shall divide the property according to law after examination that the property is indeed the joint property of the husband and wife that was not involved in the divorce. 3. If the facts admitted in paragraph 2 of Article 92 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law are inconsistent with the facts ascertained, the people's court shall not confirm them. Article 478 In any of the following circumstances, it can be determined that the notarized creditor's rights document stipulated in the second paragraph of Article 245 of the Civil Procedure Law is indeed wrong: (3) The content of the notarized creditor's rights document is inconsistent with the facts or violates the mandatory provisions of the law;... 4. Extended Reading-The divorce agreement stipulates that both men and women "have no joint property treatment of husband and wife", in combination with the fact that the house involved in the case has been occupied and used by the man for many years, the woman has not claimed rights for many years, and the house is a unit housing reform house purchased by the man with his length of service offset and registered in his name, it should be regarded that both parties have reached an agreement on the ownership of the house at the time of divorce by agreement, and both parties agree that the house involved in the case belongs to the man's actual situation. Source of opinion: Ye Mou 1. Liao Mou's Second Instance Civil Judgment on Property Disputes after Divorce, Case No.:(2020) Yue 01 Min Zhong No. 8740, Trial Court: Guangzhou Intermediate People's Court of Guangdong Province. Excerpt from the document: This case is a property dispute after divorce. The focus of the dispute in the second instance is whether the house involved in the case was disposed of and owned by Liao Mou during the divorce. Liao mou and ye mou 1 registered their marriage on xx, xx, xx, xx, and agreed to divorce on January 7, 2011. The divorce agreement stipulates that the two parties shall not have the joint property of the husband and wife. The house involved in the case belonged to Liao's unit and was registered under Liao's name. Liao's length of service was deducted when buying the house. Ye Mou 1 recognized that he was clearly aware of the house involved in the case when signing the divorce agreement. After the divorce, the house continued to be occupied and used by Liao Mou. Ye Mou 1 did not claim rights on the use and income of the house for more than 1 year until Liao wanted to sell the house and needed Ye Mou 1's assistance. The agreement of the divorce agreement between the two parties on the disposal of the joint property of the husband and wife, combined with the fact that the house involved in the case has been occupied and used by Liao for many years, Ye has not claimed rights for more than a year, and the house is a unit housing reform house purchased by Liao with his length of service deduction and registered in his name, should be regarded as the two parties reached an agreement on the ownership of the house when the divorce agreement, both parties agree that the house is registered under Liao's name, so the original trial found that the house involved in the case belongs to Liao in line with the actual situation of the case. 5. This article summarizes 1. Key facts involved in the "current case":(1) The house is the joint property of the husband and wife, and it is clear in the divorce agreement that "both parties have no joint property", but the content of the statement is inconsistent with the objective facts;(2) The house is the house of the man's unit and is registered in the man's name;(3) The woman cannot know the situation of issuing the title certificate in time;(4) It cannot be confirmed that the disputed house has been processed when the two parties divorce.▶Conclusion: The Beijing No. 1 Intermediate People's Court believes that although the two parties agreed in the divorce agreement that "both parties have no common property", the content of the agreement is inconsistent with the objective facts, and it cannot be confirmed that the house has been processed at the time of the divorce, so it can be divided as property after the divorce. 2. "Extended Reading" (2020) Key facts involved in the case of Yue 01 Min Zhong No. 8740:(1) The house is the common property of husband and wife, and the divorce agreement clearly stipulates that both parties "have no common property to deal with husband and wife";(2) The house is the house reform of the man's unit and is registered in the man's name. The man's length of service is deducted when purchasing the house;(3) The woman recognizes that she was clearly aware of the house involved in the case at the time of signing the divorce agreement, and that the house continues to be occupied and used by the man after the divorce;(4) The woman has not claimed the right to the use and income of the house for many years until the man wants to sell the house and needs the woman's assistance.▶Conclusion: Based on the above facts, the Guangzhou Intermediate People's Court held that the two parties agreed in the divorce agreement that "no joint property of the husband and wife should be disposed of", and the woman also recognized the specific circumstances of the house and agreed to be occupied and used by the man. After the divorce, the woman did not claim rights on the house for many years, so it should be regarded that the two parties have reached an agreement on the ownership of the house by the man when the divorce agreement.▶Note: Remind readers to pay attention to the difference between "no common property between the two parties" and "no common property between the two parties" (no common property between the two parties ") in the divorce agreement. In order to explore the inner intention of the parties when they agree, civil litigation gives judges a lot of discretion, aiming to effectively solve the specific problems in the case. It is difficult to judge how similar the key elements are to the two cases that seem to be the same or similar, especially the woman's original intention. In this regard, and combined with the reasoning of the two cases, this paper gives full respect to the conclusions of the two cases. (However, in practice, some case referees are full of loopholes in reasoning, incoherent prefaces, and even give people a sense of self-deception and irony. The conclusions made are unconvincing to ordinary people. This should be criticized and pointed out clearly.)

civil Ruling of the Supreme People's Court of the People's Republic of China

(2022) Supreme Fa Min Shen No. 334

retrial applicant (plaintiff of first instance and appellant of second instance): Zhang Jun, basic information omitted. Respondent (defendant in first instance and appellee in second instance): Wang Shuhua, basic information omitted. Appellee of the second instance (defendant of the first instance): Zhang Sheng, basic information slightly. The retrial applicant Zhang Jun, with the respondent Wang Shuhua and the defendant of the first instance and the appellee Zhang Sheng of the second instance, refused to accept the civil ruling No. 968 of Beijing Higher People's Court (2021) and applied to the court for retrial. The Court formed a collegial panel in accordance with the law to conduct a review, which has now been concluded. Zhang Jun applied for a retrial stating: (1) He inherited all the personal property of the decedent Zhang Moumou through a notarized will on January 9, 2017, which is a civil subject who enjoys Zhang Moumou's inheritance rights. In May 2020, in the Haidian District People's Court of Beijing (2020) Beijing 0108 Minchu No. 2158 case trial, the main evidence of (2012) Hai Min Chu Zi No. 8384 and (2012) Zhong Zhong Min Zhong Zi No. 8509 case was transferred, and then a third party filed a lawsuit to cancel, which belongs to the situation where there is new evidence to overturn the original judgment. The court of first instance did not carefully verify the new evidence, so that the judgment found that the facts lacked evidence. (II) the court of first instance did not examine the relevance between its new evidence and the request to revoke the decision, and only ruled to dismiss its prosecution on the grounds of its non-direct interested party, there was an error in the application of the law. (III) the original trial court did not arrange an inquiry or trial to deprive him of his right to debate, added the defendant without his consent and changed the cause of action to a divorce property dispute, it violated the principle of non-prosecution and exceeded his claim. In summary, the original trial ruling found that the facts and the application of legal errors, the review procedure is illegal, according to law should be retrial correction. After examination, the court held that Article 2 of the the People's Republic of China Succession Law (implemented on October 1, 1985) stipulates that inheritance begins when the decedent dies. According to the original trial, the (2011) Beijing Guoxin Neimin Zheng Zi No. 05962 notarial deed issued by Beijing Guoxin Notary Office on December 26, 2011 stated that on December 21, 2011, the testator Zhang Moumou made a will and left all his personal property to his second son Zhang Jun after his death (excluding the common rights of Zhang Jun's spouse). Zhang Moumou died on January 9, 2017, and the succession began at the time of his death. Therefore, although Zhang made a will on December 21, 2011 to leave all his personal property to Zhang Jun, Zhang Jun could not obtain the disputed house according to the will before his death. Article 59 of the the People's Republic of China Civil Procedure Law stipulates that if a third party considers that it has an independent claim to the subject matter of the litigation of both parties, it shall have the right to file a lawsuit. Although the third party has no independent claim to the subject matter of the litigation of both parties, if the outcome of the case has a legal interest in him, he may apply to participate in the litigation or the people's court shall notify him to participate in the litigation. In 2012, Wang Shuhua sued Zhang Moumou for property disputes after divorce, requesting to divide 50% of the property rights of the disputed house. After the trial, the People's Court of Haidian District, Beijing held that the time for issuing the ownership certificate of the house in dispute was May 18, 1996. The house was obtained before the divorce of both parties and was the common property during the existence of the marriage relationship between the two parties. Wang Shuhua has the right to request it according to law. Dividing. On May 3, 2012, a civil judgment (2012) Hai Min Chu Zi No. 8384 was made, ruling that the house in dispute was owned by Wang Shuhua and Zhang Moumou, and both parties enjoyed 50% property rights. Zhang Moumou refused to appeal. After hearing the case, the Beijing No. 1 Intermediate people's Court held that the house in dispute was purchased during the marriage of both parties, that is, in 1993, and the house should be the joint property of husband and wife. The divorce agreement between the two parties in 2003 clearly stated that "both parties have no common property" is not appropriate in itself. The house is a housing reform house of Zhang Moumou's unit, and Wang Shuhua could not know the situation of issuing the title certificate in time. Zhang Moumou mentioned that when the two parties divorced, they verbally agreed that the house should be owned by them. There was no evidence. It could not be confirmed that the house in dispute had been processed when the two parties divorced. The house in dispute could be divided as property after divorce. Therefore, on July 20, 2012, a civil judgment (2012) No. 8509 was made, rejecting the appeal and upholding the original judgment. The aforementioned facts show that before Zhang's death, Wang Shuhua sued him to the court on the grounds of property disputes after divorce, requesting the division of the disputed house. The civil judgment (2012) Hai Min Chu Zi No. 8384 made by the Haidian District People's Court of Beijing and the civil judgment (2012) Zhong Zhong Min Zhong Zi No. 8509 made by the Beijing No. 1 Intermediate People's Court have already tried and judged the dispute between Wang Shuhua and Zhang Moumou. At the time of the aforementioned decision, Zhang Moumou was still alive, Zhang Jun could not obtain the ownership of the disputed house according to the will, had no independent claim for the house in dispute in the aforementioned case, and had no legal interest in the outcome of the case, and was not a third party under the law. The court of first instance therefore held that it did not comply with the law to file a third-party revocation request to revoke the aforementioned judgment, and then ruled that it was not improper to reject the lawsuit. Zhang Moumou purchased the disputed house in 1993 and was awarded the property ownership certificate in 1996. The ownership of the house was acquired during the marriage of Zhang and Wang Shuhua, which belongs to the joint property of the husband and wife according to law. Although Zhang and Wang Shuhua signed a statement that "there is no common property and there is no dispute" when they divorced, the content of the statement was inconsistent with the objective facts. The parties subsequently litigated the dispute over the ownership and division of the house and the people's court heard the decision. The relevant contents contained in the aforementioned statement have been overturned by objective facts and determined by the effective judgment of the people's court. In this case, Zhang Jun still claimed that the judgment of the other case was wrong on the basis of the aforementioned statement, which lacked factual and legal basis. The court of first instance listed Zhang Sheng as a defendant based on his status as the legal heir of Zhang, which did not violate the law. Since the case does not involve a substantive trial, the court of first instance made a ruling without arranging an inquiry or a trial, which does not violate the law. To sum up, Zhang Jun's retrial application does not conform to the provisions of Article 207 of the the People's Republic of China Civil Procedure Law. In accordance with the first paragraph of Article 211 of the the People's Republic of China Civil Procedure Law and the second paragraph of Article 393 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law, the ruling is as follows: Reject Zhang Jun's application for retrial.

Presiding Judge Cao Gang Judge Zhang Shufang Judge Sun Xiaoguang June 17, 2002 Clerk Zhao Min