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Ningbo marital gift property divorce can be returned

Ningbo Author：LuXu WANG

The husband gave a set of real estate to his wife during the marriage and went through the transfer registration. During the divorce, the husband repented and asked to cancel the gift, and the wife thought that the real estate had long been her personal property. To put it bluntly: during marriage, if one spouse gifts property to the other and the transfer of ownership or delivery has been completed, the donor generally cannot unilaterally revoke the gift; upon divorce, such property belongs solely to the recipient. Whether the gift can be reclaimed hinges on whether the property rights have been effectively transferred and whether any statutory grounds for revocation exist. This order of judgment determines the direction of the vast majority of marital gift disputes.

1. Legal Framework: Rules of Intersection between Gift and Matrimonial Property

Marital gift straddles two sets of rules of contract and marriage and family in the the People's Republic of China Civil Code, which need to be understood side by side:

  1. Rules of Arbitrary Revocation of Gift Contract: Article 658 of the Civil Code stipulates that the donor can revoke the gift before the rights of the gift property are transferred. The provisions of the preceding paragraph shall not apply to notarized gift contracts or gift contracts with the nature of public welfare and moral obligations such as disaster relief, poverty alleviation and assistance to the disabled that cannot be revoked according to law. Accordingly, "whether the right is transferred" is the watershed of whether the donor can be arbitrarily revoked.
  2. Personal Property Rules of One Party of Husband and Wife: The third item of Article 1063 of the Civil Code stipulates that the property that only belongs to one party in the will or gift contract is the personal property of one party of the husband and wife. If the gift within marriage is clearly "only to the recipient party", the property is separated from the scope of common property and is not divided in the event of divorce.
  3. Special Rules of Marital Real Estate Gift: Article 32 of the (I) of Interpretation stipulates that before marriage or during the existence of the marriage relationship, the parties agree to donate the real estate owned by one party to the other party or jointly, the donor cancels the gift before the registration of the donated real estate, and the other party requests the order to continue to perform, the people's court can deal with it in accordance with the provisions of Article 658 of the Civil Code. In layman's terms, before the property is transferred, the donor can exercise the right of revocation at will, and the recipient cannot force the transfer; once the transfer is completed, the transfer of rights is completed and the revocation channel is basically closed.
  4. Effective Rules of Real Estate Registration: Article 209 of the Civil Code stipulates that the establishment, alteration, transfer and extinction of real property rights take effect after being registered according to law. The transfer registration of real estate gift is the node of the change of real right, and the record in the register is the direct evidence to judge the ownership of the right.

Whether the 2. can be returned: according to the "right transfer status" three points

Whether a gift made during marriage can be reclaimed can, in practice, be determined step by step according to the logic outlined in the following table:

  1. Rights not transferred-generally revocable. If the gift property has not been transferred and the gift money has not been delivered, the donor may exercise the right of arbitrary revocation before the transfer of rights (Article 658 of the Civil Code). For example, the husband promised to "give you" the house after marriage but never transferred the ownership. When he divorced, he went back on his word. The court usually supported the revocation according to Article 32 of the (I) of Interpretation. The wife could only claim compensatory relief.
  2. RIGHTS TRANSFERRED-GENERAL IRREVOCABLE. If the property has been registered for transfer, the deposit has been transferred, and the valuables have been delivered, the transfer of rights is completed and the donor loses the right of arbitrary revocation. At this time, the property has been determined to belong to the individual of the recipient (Article 1063, Item 3 of the Civil Code), and the other party cannot claim recovery on the grounds that "what I sent out is common property.
  3. Notarized gift and public welfare, moral obligation gift-not transferred and can not be arbitrarily revoked. After notarization of the gift contract, the donor can not be arbitrarily revoked on the grounds of non-transfer.

It is necessary to pay attention to a high-frequency dispute: whether the gift of the joint property of husband and wife is invalid because of "disposing of the other party's share"? The caliber of judicial practice is: if one party in the marriage gives the joint property to the other party, as long as the meaning of the gift is true and does not harm the interests of creditors, it is generally recognized as valid; the recipient obtains this part of the property rights and interests, and is treated as personal property when dividing. What will really be denied is the act of giving common property to a third person outside marriage without authorization-that is another type of invalid or revocable situation, unlike this question.

Exceptions that 3. can "return": three types of statutory channels

After the right is transferred, it is not absolutely locked, and the following situations may still be "returned":

  1. Statutory reasons for revocation: Article 663 of the Civil Code stipulates that if the donee seriously infringes the legitimate rights and interests of the donator or the close relatives of the donator, and fails to perform or perform the obligations stipulated in the donation contract, the donator can revoke the donation; the right of revocation shall be exercised within one year from the date on which the cause of revocation is known or should be known (Article 664 provides for the exercise of the heir or legal representative within six months). If the recipient of the gift after marriage has committed domestic violence or abuse to the donor, the donor may be revoked accordingly.
  2. Conditional gifts for the purpose of marrying or maintaining a marriage, which can be claimed to be returned when the purpose fails.: If the large-sum gift within marriage is clearly based on the conditions of living together and maintaining the marriage, the gift can be revoked or returned upon divorce, and the court will comprehensively determine it by combining the time, amount and agreement of the gift -- this is similar to the return of the bride price and the property processing logic of "taking divorce as the condition" in the divorce agreement.
  3. Creditor revocation: for the gift for the purpose of evading debts, the creditor can request the court to revoke the act of free disposition according to Article 538 of the Civil Code. The right of revocation shall be exercised within one year from the date when it knows or should know the cause of revocation, and shall not be exercised within five years from the date when the act occurs (Article 541). The same applies to the transfer of property between husband and wife in the name of gift to evade debt.

In addition, we should make a clear difference: the divorce agreement stipulates that "the common property will be given to the children", which is different from the rules of direct gift between husband and wife in marriage. The first paragraph of Article 69 of the Interpretation (I) stipulates that a property disposal agreement conditional on divorce by agreement does not take effect if the divorce by agreement between the two parties fails and one party goes back on his word in the lawsuit. In case of registered divorce, it cannot be revoked without fraud and coercion in accordance with Article 70. The People's Court of Zhejiang High Court's "Answers to Several Questions Concerning the Trial of Marriage and Family Cases" (Gao Fa Min -1 [2016] No. 2) has a clear line on the handling of the divorce agreement after the gift of the children's property, and the Ningbo Court has also grasped it accordingly-the binding force of this kind of "gift" comes from the divorce agreement itself, not the rules of the gift contract.

4. Evidence and Procedures: A Five-Step Checklist

  1. Confirm the status of rights transfer: Retrieve the real estate ownership certificate and the inquiry records from the real estate registration ledger, and verify the transfer date; for deposits, check the bank transfer records against the crediting time; for vehicles, verify the registration information on the vehicle registration certificate.
  2. Examine the written documents: find out the donation agreement, real estate sales contract, transfer notes, and judge whether it contains the meaning of "only to one party", "gift" and so on.
  3. Check the legal reasons: whether there is the legal revocation of Article 663 of the Civil Code, whether there are conditions attached and their achievements, and whether it harms the interests of creditors.
  4. Fixed evidence: collect transfer records, registration certificates of property right alteration, notarization documents, chat records and witness testimonies to form a complete chain.
  5. Decide the path of litigation: the lawsuit of filing the dispute over the gift contract or the property dispute after the divorce, which advocates the cancellation; the proof of "the right has been transferred and the gift is valid" in the defense of the lawsuit.

5. Common misconceptions

  1. Misunderstanding 1: Marital gifts can be revoked at any time. The right of arbitrary revocation exists only before the transfer of rights; if the property has been transferred and the money has been delivered, it is generally irrevocable.
  2. Myth 2: After a gift is given, the property still remains jointly owned.. It is clear that gifts that belong only to one party belong to personal property in accordance with Article 1063, paragraph 3, of the Civil Code, and no division of common property shall be made in the event of divorce.
  3. Misunderstanding 3: Oral gifts can change ownership. For real property, registration is a requisite for the change of real rights; a verbal promise does not produce any effect on real rights.
  4. Misunderstanding 4: If you sign the agreement and do not transfer the ownership, the other party can also force the transfer.. On the contrary, the donor may be revoked in accordance with Article 32 of the Interpretation (I) before the transfer of ownership, and the recipient cannot generally force the transfer of ownership.
  5. Misconception 5: At the time of divorce, if the other party agrees that “the house belongs to me,” it does not necessarily mean you have actually obtained ownership of the house.. If the divorce agreement agrees to return to one party but does not handle the transfer, it will only produce the effect of the claim, and may still be disposed of by the other party or sealed up by its creditors, and the transfer registration shall be handled as soon as possible.

Proceedings and distribution of evidence for 6. gift disputes

When a marital gift dispute proceeds to litigation, the procedural rules and evidentiary standards directly determine the outcome. Key points are as follows:

  1. Cause of action and jurisdiction: the dispute over the gift contract is under the jurisdiction of the people's court in the place where the defendant has his domicile or the place where the contract is performed; if the dispute over the gift is found only after the divorce, the lawsuit over the property dispute after the divorce can be brought. Ningbo parties can file a lawsuit with the grassroots court corresponding to the defendant's domicile, and the case can be handled online through the "People's Court Online Service (Zhejiang)" applet.
  2. Distribution of burden of proof: The party claiming the establishment of the gift must prove the consent of the gift and the delivery of rights (transfer registration, transfer records); The party claiming revocation must prove that the right has not been transferred or there is a legal revocation cause (Article 663 of the Civil Code)-who claims and who gives evidence, oral words cannot replace written documents.
  3. Time limit for revocation: the legal revocation right shall be exercised within one year from the date when the reason for revocation is known or should be known (Article 663); If the donor dies or loses his civil capacity, his successor or legal representative shall exercise it within six months (Article 664); Creditor's right of revocation is subject to a double period of one year plus five years (Article 541). Rights are forfeited upon expiration; do not delay.
  4. property preservation: if the grantee is worried about transferring the property during the litigation, he can apply for the preservation of the real estate and deposits under his name to avoid the failure of the execution after winning the lawsuit; if the lawsuit involving the cancellation of the real estate is involved, he can apply for the seizure of the real estate simultaneously.
  5. Evidence fixing method: real estate register inquiry records, bank transfer flow, notarized documents are high probative evidence; WeChat chat, transfer notes and other electronic evidence suggest to preserve the original carrier and notarize or fix the time stamp in time.

class case reference: the plaintiff and the defendant entered into a property agreement during the existence of the marital relationship, and made an agreement on the ownership of the house involved in the case. The court determined that the agreement was the true intention of both parties, legal and valid, and legally binding on both parties. The house involved in the case was the plaintiff's personal property and ordered the defendant to vacate the house. It can be seen that the marital agreement on the attribution of property is bound as soon as it is reached, and can be repented at will after the fact. Trial Court: Zhejiang Ninghai County People's Court Case No.:(2021) Zhejiang 02

26Minchu No. 1126

7. Frequently Asked Questions

If the husband transfers the property to his wife before marriage, can he get it back after divorce?

Generally not. The completion of the transfer registration is the transfer of rights and the donor loses the right of arbitrary avoidance, unless there is a statutory cause of avoidance (e. g. the recipient seriously infringes the rights and interests of the donor) or the gift is done to avoid the debt, the creditor may separately claim avoidance.

Money transferred to one’s spouse during marriage—should it be treated as a gift or as joint property upon divorce?

Examine the parties’ expressions of intent at the time of the transfer and the intended use of the funds. If the "gift" is "owned by you personally" or for the personal consumption of the recipient and the repayment of his personal debts, it is inclined to identify the gift.

Can a gift made on the condition of “no divorce, no transfer of property” be revoked upon divorce?

Conditional gifts can be returned when the attached conditions are not fulfilled. In cases where real property is gifted on the condition that the marriage be maintained, if the marital relationship breaks down due to the fault of one party and the condition fails, judicial practice tends to allow the donor to rescind the gift or demand its return—provided there is evidence demonstrating that the gift was indeed made subject to such a condition.

For the house that has been transferred, the creditor said that the gift and evasion of debt should be revoked. What should I do?

the creditor must prove that the act of the gift harms the realization of his creditor's right, and file a creditor's revocation suit within the statutory time limit (within one year from the date of knowing or should know, and within five years from the date of the act). The recipient should retain evidence of the true circumstances of the gift and the existence of a reasonable consideration to demonstrate that it was not made gratuitously in order to evade debts.

If a car was transferred to the wife during the marriage, can it still be subject to division upon divorce?

The completion of the transfer registration means the transfer of rights, and the vehicle becomes the personal property of the grantee, which will not be divided as common property in the event of divorce; unless there is a statutory revocation cause (such as the grantee seriously infringes the rights and interests of the donor) or the gift is done to avoid debts, the creditor can claim for revocation separately.

The gift agreement does not say "only to one party". Is it still a gift after divorce?

should be judged according to the meaning: if there is no clear consent of donation and the meaning of "only returning to one party", the property transfer between husband and wife in marriage may be regarded as the internal management arrangement of common property rather than the gift, and the divorce will still be treated as common property; the written documents, transfer notes and chat records are the key evidence to judge the nature of meaning expression, and only transfer without any explanation, the party claiming the gift has a heavier burden of proof.

What is the difference between a gift in marriage and a return of a bride price

The rules of the two are different: the marital gift is decided by whether the rights are transferred or not (Article 658 of the Civil Code), and the bride price is decided by whether the marriage is registered and whether the bride price is returned or not (Article 5 of the (I) and the Regulations on Bride price are interpreted); the marital gift takes place during the marriage and points to the spouse; the bride price takes place before the marriage or the engagement stage and is bound to the purpose of the marriage, do not apply the wrong rules when processing.

After a marital gift has been notarized, can it still be revoked?

The notarized gift contract belongs to the situation that it cannot be revoked arbitrarily (the second paragraph of Article 658 of the Civil Code), and the donor cannot revoke arbitrarily on the grounds that the right has not been transferred; however, the donor can still exercise the statutory right of revocation according to the statutory reasons (the donee seriously infringes the rights and interests of the donor, does not perform the maintenance obligations, etc.), and the two cannot be confused.

Practical experience of 8. lawyers

If one party in the marriage gives the property to the other party, the first point of judgment is not emotion, but whether the rights have really been transferred. If the transfer registration has been made, the money has been received and the goods have been delivered, the donor can no longer revoke it at will. This part of the property is usually determined to be owned by the recipient. On the other hand, the house is only said to be delivered verbally and has not been transferred. The money is only promised to be transferred and has not been received. The donor will withdraw before the right is transferred and will often be supported. Look at this node first, and then see if there are special circumstances such as notarization, public welfare or moral obligation, and the direction will not deviate.

The preparation of evidence revolves around the two lines of "transfer" and "meaning. The recipient should keep the transfer registration data, transfer voucher, gift agreement or clearly write down the words "only to one party" and the traces of actual possession and use over the years. If the donor wants to claim that there are legal revocation reasons, such as the donee's serious infringement and failure to perform the agreed obligations, he must produce corresponding evidence instead of just emphasizing "I was impulsive at that time". Attention should also be paid to a type of high-frequency dispute: whether the use of the joint property of the husband and wife to send is invalid due to the disposition of the other party's share, such issues are also judged by the source of funds and the true meaning of the time.

When it comes to strategy, the focus is completely different depending on the position. As the recipient, the most important thing is to complete the transfer and delivery as soon as possible and leave a mark. Verbal promises will not count before landing. Don't procrastinate because of good feelings. As a party who wants to go back on its word, it should be clear that the window of going back on its word has basically locked the opening after notarized gift before the right is transferred. During the negotiation, don't be carried away by the general statement that "what is sent out is mine" and "of course I can return what is sent out". First, the two sides will be pulled back to the specific node of "whether there is any transfer", and then compensation and offset will be discussed before the results can be reached.

Whether the gift in marriage can be returned, the answer is condensed into one sentence: the transfer of rights is the watershed, and the legal cause is the exception. Before the gift, think clearly and then send it. After the gift, if you want to go back on your word, you have to give legal reasons. For the grantee, the property ownership is truly stable only by writing "only to one party" into a written document, making the transfer and delivery real, and leaving the documents in full.