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Ningbo marital property agreement which agreement is invalid.

Ningbo Author：LuXu WANG

Many couples, in order to “play it safe,” include a wide range of clauses when drafting their marital property agreements; however, upon divorce, they often discover that some of these provisions are actually invalid. What common content is easily invalid by the court? What should be paid attention to when signing an agreement? Conclusion first: in the marital property agreement, the clauses restricting the freedom of divorce, disposing of other people's property, exempting legal obligations, and the clauses agreeing to donate real estate but not changing property rights may be deemed invalid or unable to be performed. A valid agreement must be the true intention of both parties, the content is legal and does not violate public order and good customs, and is in written form.

1. legal basis: the effective three customs of the agreement

Article 1065 of the Civil Code of the People's Republic of China is the general basis of the marital property agreement: "Both men and women can agree that the property acquired during the existence of the marriage relationship and the pre-marital property shall be owned by themselves or jointly owned or partially owned by themselves or partially jointly owned by themselves. The agreement shall be in writing. Any agreement between spouses regarding property acquired during the marriage as well as premarital property shall be legally binding on both parties. "Dismantling of the elements: First, the scope of the agreement is" pre-marital property and marital property ", and the way is owned by each, jointly owned or part of each part of the common.

Article 143 of the Civil Code defines the general requirements for the effectiveness of civil juristic acts: (1) The actor has the corresponding capacity for civil conduct; the (II) intention is true; the (III) does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs. Article 153 further stipulates that civil legal acts that violate mandatory provisions of laws and administrative regulations are void, and civil legal acts that contravene public order and good morals are also void. As a civil legal act, marital property agreement also has to go through these three barriers-especially the one that "does not violate public order and good customs", which is the focus of court review.

The order of validity review should also be clarified: first, whether the content is legal and violates public order and good customs (invalid review), then whether the meaning is true (revocable review), and finally whether the performance is in place (transfer of ownership, notarization, etc.)-most "signed useless agreements" fall into the first level (illegal content) or the third level (only signing but not transfer of ownership). If the agreement is invalid or revoked, it is not legally binding from the beginning. If some clauses are invalid, the rest can still be valid after elimination (Article 156 of the Civil Code). Do not negate the whole agreement because of an invalid clause.

2. A detailed breakdown of the six categories of high-risk clauses

1. Clauses that restrict the freedom to divorce or unduly constrain personal rights are invalid.Such as agreements stipulating that “the party who files for divorce shall forfeit all marital property,” “neither party may remarry after divorce,” or “the non-custodial parent shall be prohibited from visiting the children.” Freedom of marriage is a basic right established by the Constitution and the Civil Code (Articles 1041 and 1042 of the Civil Code prohibit interference with freedom of marriage). The agreement to bind the freedom of divorce with property punishment and restrict remarriage and visitation by personal arrangement is invalid because it violates public order and good customs. Note: In practice, there are differences on the validity of loyalty clauses of the nature of "who wants to divorce and who goes out of the house". Most judges think that the restriction on the freedom of divorce is partially invalid or does not support it as a whole. Even if some courts recognize its attribute of "compensation for breach of contract", it is only for discretionary reference and cannot be used as the basis for going out of the house.

2. The provisions of the disposition of another person's property are invalid. Husband and wife can only dispose of the property in their own name. The agreement stipulates that the property in the name of the parents, the property in the name of the children, and the claims of the third party shall be "assigned" to one party, which is not entitled to disposition and is not binding on the third party. If the property in question is registered in the parents’ name but was actually purchased with funds contributed by the spouses, the issue of ownership must first be resolved; the registered title cannot be altered solely on the basis of a marital agreement.

3. The provision of exemption from statutory obligations is invalid.The legal obligations to support minor children and to provide for one’s parents cannot be waived by agreement. If it is agreed that "one party shall not bear child support after divorce", it shall not affect the child's future claim for maintenance according to law (Article 1085 of the Civil Code); if it is agreed to exempt each other from maintenance obligations, it shall also not oppose the legal maintenance obligations of the maintenance obligor itself to the parents.

4. If the donated property has not been transferred, the donor can revoke it. It is agreed that "the premarital property registered in the name of one party belongs to both parties" or "belongs to the other party", which belongs to the nature of gift. Article 32 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 that before marriage or during the existence of the marriage relationship, the donor cancels the gift before the registration of the property change, and the other party requests to continue to perform, the people's court may revoke the gift in accordance with Article 658 of the Civil Code (the donor may revoke the gift before the transfer of property rights, except for notarized gift contracts). That is to say: only write the agreement, do not transfer ownership, the donor back, the other party often can only eat "dumb loss"-unless the agreement has been notarized.

5. The clause of evading debt and evading execution is invalid to the creditor. the internal agreement between husband and wife about "the debt shall be borne by one party" is valid for both parties, but it can not oppose the bona fide creditors. Article 35 of the interpretation (I) makes it clear that if the husband and wife agree that the property belongs to each other, the husband or wife's external debts will only be paid off with that party's personal property if the relative knows the agreement-and the burden of proof for "the relative knows" lies with the husband and wife (Article 37). If the property is distributed to one party by means of a marriage agreement and the debt is left to the other party, the creditor may still execute the property in the other party's name or claim cancellation.

6. Unfair terms may be revoked. If one party makes the agreement obviously unbalanced by taking advantage of the other party's urgency, distress or lack of judgment (such as one party abandons all common property or assumes all debts), the injured party may request the court to revoke it within one year from the date when it knows or should know the cause of revocation (Articles 151 and 152 of the Civil Code). However, the right of revocation has a period of exclusion, and the agreement continues to be valid if it is not exercised within the time limit.

The comparative example is helpful for self-examination: Rewrite the punishment based on divorce, such as "If divorce, the house belongs to the woman, and the man clears his body and leaves the house" as "The real estate located in ×× (certificate number ××) belongs to the woman, the two parties shall register the change before the date of x years, x months and x days"-the former may be deemed not effective when there is no actual divorce (the first paragraph of article 69 of the (I) of interpretation), while the latter shall be binding upon signing as a direct property agreement; Rewrite "the man's child support fee is not a cent" as "the child support fee shall be determined separately according to the law"-the clause exempting the legal obligation to support of minor children is invalid, writing or not writing does not affect the children's future legal claims, writing on the contrary exposes the improper purpose of the contract.

What to do after the 3. is invalid: partial invalidation and consequence treatment

The invalidity of one clause of the agreement does not mean that the whole agreement is invalid. Article 156 of the Civil Code provides: “If only part of a civil legal act is invalid but does not affect the validity of the remaining parts, the remaining parts shall remain valid.” "In practice, the court tends to" dismantle if it can be dismantled ": after the invalid clause is removed, the property agreement is still executed according to the true meaning of both parties. Article 157 stipulates that after a civil legal act is invalid and revoked, the property acquired by the perpetrator as a result of the act shall be returned. If the agreement is concluded due to fraud or coercion, the injured party may request cancellation and claim compensation in accordance with articles 148 to 150. It should be noted that marital property agreements usually do not involve registration and take effect when signed by both parties. However, clauses that violate the law or violate public order and good customs are invalid from the beginning and are signed for nothing.

4. Eight-item checklist for signing a valid agreement

  1. Clarify the scope of property: itemize the property before and after marriage, the location of real estate and vehicles, the number of warrant, deposit account and share of equity, so as to avoid vague expressions such as "all the property under one's name;
  2. specify the attribution mode: owned by one party, shared by one party or shared by shares, and the indicated proportion of shared by shares;
  3. Don't write the clauses that restrict the freedom of divorce and personal rights, and don't write the expressions such as "clean body and leaving the house" and "no remarriage;
  4. not to dispose of the property of parents, children and the third person, involving the prior confirmation of the ownership of others;
  5. It does not exempt one from statutory obligations, such as the duty to support minor children;
  6. If the property of one party is donated to the other party before marriage, the transfer registration shall be handled in time, or notarized to exclude arbitrary revocation;
  7. Signed and dated by both parties in one original;
  8. Significant and complex property arrangements may be notarized or signed by a professional after review.

5. Common Misunderstandings and Positive Solutions

Misconception 1: A contract is valid simply because it is written. Correct answer: Clauses that violate mandatory provisions of the law or contravene public order and good morals are void ab initio—“written” does not equate to “valid”; substantive review takes precedence over formal completeness.

Misunderstanding 2: Agreed property ownership is equal to ownership. True explanation: the agreement of real estate without the change of registration is only a creditor's right commitment, and the donor can revoke it according to Article 658 of the Civil Code before the transfer (except for notarization);"agreed common ownership" must fall into "registered common ownership".

Misconception 3: A marital agreement cannot stipulate that the party who initiates divorce will receive a smaller share of the marital property. positive solution: the terms with the condition of divorce are tied to the freedom of divorce, and the validity is doubtful or even invalid; the division of property should be handled according to legal rules or reasonable terms designed separately, and the freedom of marriage cannot be tied up by "punitive agreement.

Myth 4: After signing an agreement, the debt automatically has nothing to do with the other party. Positive solution: Internal debt agreement can't fight against uninformed creditors (explain (I) article 35 and article 37)-if you want to isolate the debt, you should let the counterparty of the transaction know and leave a mark, instead of relying on an internal agreement.

Misunderstanding 5: The more "ruthless" the agreement is, the more deterrent it is. Positive solution: the more extreme the clause is, the more likely it is to be invalid-expressions such as "clean body and leave home", "no remarriage" and "giving up everything" directly challenge the freedom of marriage and public order and good customs, which are usually not enforced by the court; the real deterrent is the legal, quantifiable and enforceable property arrangement, rather than the emotional punishment clause.

Misunderstanding 6: Notarization will not be invalid. Positive solution: Notarization strengthens the proof force and excludes the arbitrary revocation of the gift, but it can't "whitewash" the illegal content-the clause that violates the public order and good customs or disposes of others' property, even after notarization, it is still invalid. Content legality review always precedes notarization.

6. Frequently Asked Questions

Is it effective to write "who is cheating and who is clean" in the agreement?

Its effectiveness is questionable, and the risk is high. This clause has the dual attributes of "faithful restraint" and "restriction of freedom of divorce", and most courts in judicial practice do not support it or only use it as a reference factor for the wrong party to divide less property, so that one party can not be allowed to "clean out of the house". If it is to play a binding role, it is advisable to design the clause as quantifiable damages or property compensation, and to retain evidence of fault, rather than directly agreeing to deprive all property.

Verbal agreement on property ownership, does it count?

Not counting. Article 1,065 of the Civil Code explicitly requires a written form; oral agreements cannot be substantiated and do not create legal obligations. Even if both parties acknowledge the oral agreement, it is recommended to sign a written agreement to fix it.

It is agreed that the property is owned by both parties but the ownership has not been transferred. What if the other party goes back on his word?

Before the transfer of ownership, the donor has the right of revocation at will (except for notarization). If the other party goes back on his word, the other party cannot force him to transfer ownership. Remedy: as soon as possible to add name or transfer registration, if temporarily unable to transfer, can handle the agreement notarization or at the same time set a reasonable consideration and breach of contract liability clause, reduce the space for regret.

Can the marital agreement that "I will bear all the debts" protect the other party?

It can be done internally, but it cannot be completely protected externally. If the creditor is not aware of the agreement, he may still claim a joint debt to the husband and wife. Therefore, marital debt arrangements should also be communicated with creditors in conjunction with debt settlement, rather than relying solely on an internal agreement.

After signing the marital property agreement, can the property be divided again after divorce?

Property that falls within the scope of the agreement shall be dealt with in accordance with the agreement; property not covered by the agreement or acquired after marriage shall still be divided according to the rules governing marital property. If the agreement is reached on the condition of divorce (Article 69, paragraph 1, of the (I) of interpretation), if one party goes back on his word when the divorce is not completed, the agreement will not take effect and the divorce proceedings will still be divided according to legal rules.

Practical experience of 7. lawyers

If the marital property agreement is signed but it doesn't work, it is mostly in two places: the content itself is illegal or violates public order and good customs, or if it is only signed but the procedures that should be done are not in place. To be effective, the agreement must pass three levels at the same time: the content of the agreement does not violate the mandatory provisions of the law and does not violate public order and good customs; The meaning of both parties is true and has not been cheated or coerced. The agreed matters can eventually fall to the ground, especially when it comes to property such as real estate and equity that need to be changed and registered. Agreement alone is often not enough. The order of review is also worth remembering: first, assess whether the content holds up; second, determine whether the signing was voluntary; and finally, examine whether there has been actual performance. If you want to know this clearly, you will know that instead of piling up clauses for "insurance", it is better to write down several core contents clearly and solidly.

When writing, it is much safer to do a few things.The scope of application should be clearly stated, and the pre-marital property and post-marital income should be clearly listed separately. Whether "each owns", "jointly owns" or "part of each owns" is used, and a general sentence "post-marital property belongs to each other" is difficult to cover in place. Then attach a list of property, corresponding to the specific objects such as real estate, deposits, equity and vehicles one by one, so as to avoid being unable to point in the future; the effective time, change and supplement method are also agreed upon, leaving an interface for subsequent property changes; If real estate or equity is involved, the transfer or change registration shall be handled in a timely manner after the agreement is made, and cooperation notarization and witness shall be provided if necessary. Finally, the original agreement and the signing process shall be kept, and the signature page, date and identity information of both parties shall be kept complete. Only by doing these things can the agreement withstand future scrutiny.

As for which kind of clauses are most likely to cause problems, it is worth to see clearly one by one: the clauses that restrict the freedom of divorce and personal rights, such as "whoever proposes to divorce will leave the house clean", "no remarriage after divorce" and "no visiting children", are often denied because of violating public order and good customs; those who "transfer" the property of parents, children or a third party have no right to punish, it is not binding on others; the part of the agreement to avoid legal obligations such as raising children and supporting the elderly is invalid; the agreement to transfer property to one party almost free of charge for the purpose of debt evasion cannot be stopped by creditors, and creditors may also claim revocation. It should also be reminded that some of the terms of the agreement are invalid and will not affect the validity of the remaining terms. Don't think that the whole agreement is invalid because of a mistake. When it is found that the agreement is out of line with the actual property structure, it is much safer to supplement or re-sign it in time than to hold a loophole in the old agreement to the negotiating table.

The marital property agreement is a legal tool that puts "ugly words first", and its value lies in certainty; but when the terms are designed to step on the line, certainty will become the source of disputes. To sum up, what can be agreed upon is property (who owns the income before marriage and within marriage), and what cannot be agreed upon is personal (freedom of divorce, remarriage, visitation, legal obligation) ". Before signing, self-check against the above list one by one, and ask professionals to review it if necessary, which is far less costly than arguing for "this count does not count" when divorce occurs.