Insights

Can Ningbo still divide the property after three years of divorce?

Ningbo Author：LuXu WANG

When Ms. Wang agreed to divorce three years ago, she did not divide a set of shops under her husband's name due to her negligence. Recently, she discovered that the shop is still being rented out and would like to know whether she can still claim a division of the property. To state the conclusion first: yes. Joint marital property that was not divided during the divorce may be subject to a separate lawsuit for division after the divorce. The statute of limitations for bringing such a claim is three years, commencing from the date when the party knew or ought to have known of the existence of the property. As long as the shop is indeed the joint property of the husband and wife not involved in the divorce, the court shall divide it according to law and shall not be subject to the restriction of "how long the divorce will last"-provided that it has not been explicitly dealt with or abandoned by agreement and that it shall be claimed within three years from the date of discovery.

1. legal basis: the basis of division of resuit and the statute of limitations

1. The basis of the division of the lawsuit. Article 83 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates: "After divorce, if one party sues the people's court for division on the grounds that there is still common property of the husband and wife that has not been dealt with, the people's court shall divide the property according to law after examination. The provision uses the phrase “shall be divided in accordance with the law,” which indicates that as long as the statutory conditions are met, the court has a duty to effect the division, irrespective of the duration of the marriage.

2. Limitation Rules. Article 188 of the Civil Code stipulates that the statute of limitations for requesting protection of civil rights to the people's court is three years, counting from the day when the obligee knows or should know that the rights are damaged and the obligor. As far as the property is concerned, the statute of limitations starts from the date when she knows or should know the existence of the property (I. e. the right is exercisable)-Ms. Wang divorced three years ago, but only recently discovered that the shop is not divided. the statute of limitations starts from the date of its discovery, and now claims that it is not of course overdue.

3. The difference between the two types of requests. also need to distinguish two situations: one is to request the division of "common property not involved in divorce" (Article 83 applies, and the limitation of time starts from the date of discovery); The second is to claim that the other party "hides, transfers, sells, destroys and squanders common property" to request another division (Article 84 of the Interpretation (I) of Marriage and Family), and the limitation of time of action also starts from the date of discovery. The two constitutive elements are different: the former does not require proof of the other party's malice, while the latter must prove the existence of a hidden transfer.

The difference between the two paths in practice is very intuitive: the claim of missing points (Article 83) only needs to prove that "the property exists and has not been dealt with at the time of divorce", and if the other party defends with "having given up", the other party shall provide evidence; if the other party claims concealment and transfer (Article 84), the other party must prove that the other party has hidden, transfer and other behaviors and time points, and the burden of proof is heavier, but once established, article 1092 of the Civil Code may claim that the other party has less or no division and recover the transferred property or price. In judicial practice, the parties often cite two paths at the same time-first according to the missing points to request the division of the property itself, and then the other party's malicious disposition to claim less points or compensation, the court will review separately. When prosecuting, the evidence of the two paths is fixed separately (missing the agreement and ownership, hiding the flow of water and the record of disposition), and it is more confident to deal with the other party's defense of limitation and "processed" defense.

2. the boundary between "not involved" and "disposed, abandoned"

The prerequisite for seeking a further division of property is that the property “actually constitutes marital joint property that was not addressed at the time of divorce.” In practice, three scenarios must be distinguished:

  1. Not involved (can be divided): the divorce agreement or judgment does not mention a certain property, both parties do not deal with it, or one party does not know the existence of the property-it can be divided separately.
  2. has been clearly dealt with (no further division): if the divorce agreement has clearly agreed to be owned by one party, or it is stated that "the property has been divided and will not be held against each other" and the property is covered, the other party can no longer claim.
  3. has given up explicitly (no further division): if one party gives up a certain property share explicitly in the agreement, it belongs to the disposition of its own rights, and it is difficult to get support if it goes back on its word afterwards.

The more general the terms are expressed (such as "the property under their respective names belongs to their respective ones"), the easier it is to dispute whether a certain kind of property "has been dealt with". The court will judge according to the background of the agreement and the performance situation. If Ms. Wang's shop is not mentioned in the divorce agreement at all, it is a typical "not involved" and can be sued again according to law.

The starting, proof and interruption of the three-year limitation of 3.

  1. Starting point: Know or should know. "Should know" means that the existence of property should be discovered under the duty of care of a generally rational person. If the other party conceals property, it shall be counted from the date of actual discovery, but the claiming party shall provide evidence on the "time of discovery.
  2. Evidence of discovery time: inquiry records (receipt of real estate registration inquiry), chat records (the other party admits the existence of the property), rent-to-account flow (the record of transferring the rental income of the shop to his own account), media reports, etc., are all common evidence of fixed "when to discover.
  3. Limitation interruption: claiming rights (sending letters to urge, suing, applying for mediation) will lead to limitation interruption and recalculation; but the service certificate of claiming rights should be reserved.
  4. The longest period: if the right is damaged for more than 20 years, the court will not protect it (the second paragraph of Article 188 of the Civil Code).

risk hint: if the other party raises a defense after the expiration of the limitation period, the right to win may be lost. Therefore, after the discovery of the missing property, the first fixed discovery of time evidence, and then timely prosecution, the two are indispensable.

4. which properties are easily missed: inventory and discovery channels

Common property that is easily missed in practice includes:

  1. Bank deposit and financial management: the account balance, time deposit certificate and bank financial management that were not transferred at the time of divorce;
  2. accumulation fund and social security account: the housing accumulation fund deposited during marriage belongs to common property, which is often omitted in the agreement;
  3. equity and company assets: equity, anonymous investment and nominee share held by one party;
  4. the cash value of insurance: the cash value of savings and investment insurance policies insured after marriage;
  5. Rent and operating income: rent and operating income (fruits) generated after the divorce of the missing property and shops;
  6. Creditor's right: the creditor's right formed by a party's external loan;
  7. Vehicles, precious metals, collectibles and new forms of property: Vehicle registration, virtual assets, game accounts, etc.

Discovery channels: check the real estate registration from the real estate registration agency (check the equity in the national enterprise credit information publicity system), check the account from the provident fund center, retrieve the bank account clues, retrieve the other party's operation and asset information through public channels, etc. Ningbo court family trial to implement the property declaration system, after divorce claims to miss points, can apply to the court to order the other party to supplement the declaration.

The valuation reference date and value-added attribution of the missing property are high-frequency disputes: the court generally takes the current situation of the property at the time of division (the valuation reference date determined during the prosecution or the trial) as the standard-if the real estate, equity and so on continue to increase in value after divorce, there are two views on how to attribute the value-added part: one is that the missing property belongs to the common property from the beginning, and the added should be shared after divorce; the other believes that the value added generated by the separate management of the other party after the divorce should be attributed to the individual. The mainstream adjudication tendency is that the natural appreciation of property actually occupied, used and earned by one party during the undivided period is usually taken into account together with the operating income, but the appreciation of the value generated by the other party's labor or capital may be properly considered for deduction. For the missing property (equity and real estate registered in the name of relatives and friends) held by a third party, the holding relationship (holding agreement, capital contribution certificate, evidence of actual exercise of rights) must be determined through the confirmation procedure, and then divided. The procedure is more complicated and should be started as soon as possible. In addition, if the missing property is sold or damaged by the other party after divorce, compensation may be claimed according to the sale price or the evaluation price.

5. operational steps

  1. Confirm the current situation of the property: check the registration and holding information of real estate, vehicle, stock right, deposit, etc., and confirm that the property exists and is still in the name of the other party or can be traced.
  2. Judge whether it is not involved: call out the original divorce agreement and check whether the property is dealt with; if the agreement is expressed in general terms, evaluate the space of dispute.
  3. Fixed discovery time evidence: keep inquiry receipt, chat record, rent flow and so on to prepare for limitation defense.
  4. sue within three years from the date of discovery: bring a lawsuit of property division after divorce to the basic people's court of the place where the defendant is domiciled; if the other party conceals the property and refuses to cooperate, apply to the court for investigation and evidence collection at the same time.
  5. Apply for property preservation: if you find that the other party may dispose of the missing property, you should apply for sealing up and freezing in time to prevent "you can't get the money if you win the lawsuit".

Notice on the prosecution materials and procedures: submit the complaint of property division after divorce (stating the details of the property requested to be divided, the share and basis of the claim), the original divorce certificate and divorce agreement, the evidence of property ownership and value (ownership certificate, assessment report, rent flow), and the evidence of the time of discovery; the lawsuit may apply to the court to investigate the property in the name of the other party (bank flow, real estate registration) or order the other party to make a supplementary declaration. Cases generally go through mediation procedures first. If a mediation plan is agreed upon, the court will issue a mediation statement with the same effect as the judgment. If mediation fails, it will be transferred to trial in a timely manner. If the other party's whereabouts are unknown or refuse to cooperate, it can be advanced through the announcement of service and default trial, but the announcement procedure takes a long time, and the difficulty of execution after the default judgment will increase, the other party's cooperation and property enforceability should be evaluated before the prosecution.

6. common mistakes

Myth 1: Divorce can be re-divided as long as it takes. Positive explanation: the limitation of action for division of litigation is three years, counting from the date of discovery; and the property that has been clearly disposed of or abandoned can no longer be claimed. If the statute of limitations is exceeded and the other party defends, the right to prevail may be lost.

Myth 2: All property after marriage can be divided again. Correct solution: Only the common property not involved in the divorce can be divided again; the property that has been clearly dealt with in the agreement and the property that has been abandoned cannot be overturned.

Misunderstanding 3: You must prove that the other party's hidden property can be divided again. Positive solution: those who claim that "no property involved" is divided again do not need to prove that the other party intentionally conceals it, as long as the property exists objectively and is not dealt with at the time of divorce; those who claim "hidden transfer" path must prove malicious intent.

Misunderstanding 4: It's okay to find the other party's theory first if you find that the property is missing, and then sue for a few years. positive solution: the limitation period starts from the date of discovery. if the evidence of claiming rights is not fixed during the period of theory and negotiation, the right may be lost due to the expiration of the limitation period. Evidence should be fixed and procedures initiated as soon as possible after discovery.

class case reference: the court held that the common property of husband and wife not involved in the divorce should be divided by the court according to law; the house and fixed decoration involved in the case are the common property of husband and wife (each accounting for 50%), which shall be owned by the defendant, and the remaining loan shall be paid off by the defendant, who shall compensate the plaintiff for 688257.84 yuan. Trial Court: Case No. of zhenhai district People's Court of Ningbo City, Zhejiang Province:(2020) No. 1

56of Zhejiang 0211 Minchu

7. Frequently Asked Questions

The divorce agreement says that "the property has been divided". Can you still claim the shops that have missed the division?

See if the terms cover the store. If the agreement lists the divided property, the store is not in it, or the terms are too general and the other party knows that the store exists but does not disclose it, it may claim that the store is a separate division of the property not involved.

When does the three-year statute of limitations begin to run?

It shall be calculated from the date on which the existence of the property was known or should have been known. Example: The account concealed by the other party was discovered only five years after the divorce, and the lawsuit can be filed within three years from the date of discovery; however, the claimant must provide evidence on "when it was discovered", and the other party's defense "should have known long ago" is judged by the court.

The house that was improperly divided has already been sold by the other party—what rights can still be asserted?

If the house has been transferred to a bona fide third party, it is difficult to recover the house, but you can claim your share of the transfer price, and you can claim that the other party has less share or compensation for the loss; if the transfer is malicious collusion (such as low price transfer to relatives), you can recover the house after confirming the transfer is invalid in another case.

Can the rental income of the missing property after divorce be claimed together?

Can. The rent and other fruits and income generated by the missing property after the divorce shall generally be dealt with together with the main property, and the lease contract and rent shall be submitted to prove the amount and attribution of the income.

8. Practical Insights from a Lawyer

Can you still claim property that was not divided during a divorce? The answer is yes, and there is no time limit—provided that the property was indeed marital property that was not addressed at the time of the divorce. What will really block you is two thresholds: one is whether it has been processed by the divorce agreement and explicitly abandoned; The second is the limitation of time. The statute of limitations for requesting a further division is usually three years from the date you knew or should have known of the existence of the property, not from the date of the divorce. It is more stable to find out these two points first and then decide whether to do it or not than to prosecute in a hurry when clues are found.

Before you take action, first retrieve the divorce agreement, court judgment, or mediation statement from that time and compare them item by item, marking which assets were included and which were never mentioned. Many people think that they have "given up", but in fact it is not written in the agreement at all; some people think that "if you don't mention it, you can still share it", only to find that there is a general waiver clause in the agreement.After confirming that the property is not involved, do the homework of the discovery channel: real estate registration, equity industrial and commercial information, bank and provident fund accounts, insurance policies, vehicle registration, company annual report, public execution information, etc., can be checked.

There are two things to remember in the rhythm: the time limit is on the way, and the evidence collection should be quiet. Once you find that there is a leakage of property, start it as soon as possible. Don't drag on with the mentality of "wait and see if the other party will take the initiative to divide me. At the stage of evidence collection, try not to disturb the other party, first fix the clues of ownership and source of funds, and then file a lawsuit to avoid the other party's transfer, transfer or cancellation during this period. In the negotiation, you can first give a window for voluntary compensation, and the other party can cooperate with it to save trouble. The other party turned to the lawsuit when it was tough, and advocated division with the fixed clues in his hand. The confidence came from evidence rather than emotion.

Divorce omission of property does not mean that "it can never be divided again"-Article 83 of the (I) of Interpretation reserves the passage of re-division for property not involved, and the three-year limitation period starts from the date of discovery. The key lies in three points: the property is not dealt with at the time of divorce; timely discovery and fixation of "time of discovery" evidence; and prosecution and application for preservation within the statute of limitations. For the parties who intend to divorce by agreement, it is suggested that the property should be checked and written before signing the agreement, and it is better to make more lists than to write general clauses in the form of "under their respective names", so as to avoid disputes from the source.