Insights

How to draft a perfect divorce agreement in Ningbo

Ningbo Author：LuXu WANG

Ms. Qiao has been married for eight years and has one daughter. The couple jointly owns two mortgaged properties, with Ms. Qiao listed as the primary borrower on both loans. During their divorce negotiations, the husband proposed that “if Ms. Qiao remarries, custody of their daughter shall be granted to him,” and insisted that this be included in the divorce agreement. Is this agreement valid? To answer directly: it is invalid. Once the divorce agreement is filed with the Civil Affairs Bureau, the omission or invalidity of the clause may lead to long-term disputes, and the "change of custody on the condition of remarriage" such as the clause restricting personal rights, even if written in, has no legal effect. To draft a comprehensive divorce agreement, it must simultaneously meet the following four requirements: completeness of terms, genuineness of intent, legality of content, and enforceability.

1. Legal Basis and Framework of Agreement Validity

Article 1076 of the Civil Code stipulates that: if both husband and wife divorce voluntarily, they should sign a written divorce agreement and apply for divorce registration in person at the marriage registration authority; the divorce agreement should contain the intention of both parties to divorce voluntarily and the consensus opinions on matters such as child support, property and debt handling. Article 1077 A cooling-off period for divorce is set: within 30 days from the date when the marriage registration authority receives the application for divorce registration, if either party is unwilling to divorce, it may withdraw the application for divorce registration from the marriage registration authority. Article 1078 clearly states that if no divorce agreement is reached, the marriage registration authority shall not register-the agreement is the legal prerequisite for registering divorce. The general gate of the effect of

clause is Article 143 and Article 153 of the Civil Code: The conditions for the validity of a civil juristic act are that the actor has the corresponding capacity for civil conduct, the expression of intention is true, does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs; violation of mandatory provisions or violation of public order and good customs is invalid. The status and personal rights provisions in divorce agreements (such as "remarriage changes custody", "no visitation", "waiver of maintenance") are invalid precisely because they restrict the freedom of marriage, deprive legal rights, harm the interests of minors, and violate public order and good customs.

Five modules that should be clearly written in the 2. agreement

First, the voluntary divorce clause. At the beginning, it is clear that "both men and women divorce voluntarily", confirming that there is no fraud or coercion, and stating that consensus has been reached on child support, property and debts. Second, child support provisions. State the ownership of custody, the amount and payment method and period of maintenance, and the time and method of visiting rights. Visiting arrangements are suggested to be detailed to pick-up time, holiday rotation, winter and summer vacation distribution to avoid wrangling in the future; If a child has reached the age of eight, his true will shall also be respected in accordance with Article 1084 of the Civil Code. Third, the property division clause. Real estate write location, title certificate number, owner, transfer period and loan commitment method; Vehicle license plate number and frame number; Deposit, stock, financial management, insurance, provident fund, pension personal accounts are listed item by item-only write "the property under their respective names belongs to their respective" can easily miss the large assets jointly contributed by marriage. Fourth, the debt assumption clause. Distinguish between common debt and personal debt, which states the subject and proportion of repayment, and pay special attention to the fact that a loan in the name of one party is actually used for family life may still be considered a common debt (article 1064 of the Civil Code). Fifth, liability for breach of contract and the terms of performance. The transfer of real estate, the relocation of household registration, and the change of loan shall agree on the standard of late default or compensation, and clarify the dispute resolution method.

List of 3. invalid terms: written into it will not take effect

  1. articles restricting remarriage and reproduction (such as "if the woman remarries..." "no reproduction"), infringe on the freedom of marriage and reproductive rights, and are invalid.
  2. The clause of changing the custody or depriving the custody on the condition of the other party's remarriage or repregnancy is invalid -- the ownership of the custody should be based on the most favorable to the minor children, and the marital status of the parents should not be used as the weight.
  3. Clauses providing for “waiver of visitation rights” or “permanent deprivation of visitation rights” are invalid, as visitation rights are statutory rights (Article 1086 of the Civil Code) and may not be deprived by agreement.
  4. "exemption from maintenance" or "waiver of maintenance" clause: maintenance obligation is a legal obligation. if it damages the interests of children, it may be deemed invalid, and it does not prevent children from claiming necessary expenses according to the second paragraph of article 1085 in the future (article 16 of the (II) of interpretation of marriage and family in civil code further clarifies that the agreement is binding on both parties, but the economic situation of the direct dependant deteriorates significantly or the necessary expenses of children increase significantly, children can still request payment).
  5. Improper restrictions such as forcing children to follow a certain family name and restricting their education methods are invalid.
  6. In order to evade the debt, it is agreed that the property belongs to one party and the debt belongs to the other party, which is invalid to the creditor, and the creditor can request to revoke the property division clause in accordance with Article 538 and Article 539 of the Civil Code (Article 3 of the (II) of Interpretation of Marriage and Family of the Civil Code).

4. Case Perspective: Viewing the Pit of Agreement Drafting from "Remarriage Clause"

Ms. Qiao’s draft divorce agreement stipulates: “If Ms. Qiao remarries, custody of the daughter shall be granted to theThe man.” According to Article 1084 of the Civil Code, the attribution of custody depends on the principle of being most beneficial to minor children, and there is no legal basis for compulsory change of custody on the grounds of remarriage of the mother, and this provision is invalid. A more secure way of writing is to write down the custody, alimony and visiting arrangements at one time, and then agree that "both parties can negotiate or sue to change the dependency relationship according to the change of circumstances"-whether to change or not will be judged by the actual situation and the law in the future, instead of using marital status as a switch. The remaining legal provisions of the agreement (division of property, assumption of debt) are not affected by this invalid provision and may continue to be performed.

The real judgment also confirms the stability of the validity of the agreement: the public case of Ningbo Yinzhou Court shows that the property donated to the children in the divorce agreement cannot be revoked at will; in the property dispute after the divorce between Li and Zhang concluded by Ningbo Court, the property division clause of the agreement is deemed legal and valid, and the court supports to confirm the property belongs to the plaintiff and requires to cooperate with the transfer of ownership-the more specific and legal the clause is written, the smoother the implementation; conversely, agreements that are general, unjust or have invalid terms will continue to be disputed in the future.

5. Common misconceptions and correct answers

Misunderstanding 1: The Civil Affairs Bureau has a model, just fill it in directly. Positive explanation: the model of the Civil Affairs Bureau only covers the basic framework, and complex matters such as mortgage house, equity, insurance, debt, liability for breach of contract, and account transfer must be separately specified. If the model is not filled, it is equivalent to leaving the dispute to the future.

Misunderstanding 2: Just make a verbal agreement and write the agreement casually. Positive explanation: the divorce agreement takes effect after being registered and put on record, and the cost of unrepentance is extremely high; if the division of property is obviously unfair or there are omissions, it is difficult to remedy afterwards, so it should be checked item by item when drafting.

Misconception 3: It’s the easiest option to agree that “the child will live with me, and the other parent won’t have to pay child support.” Positive explanation: maintenance fee is the right of children, and the agreement to give up maintenance fee may be invalid because of damaging the interests of children, and children can still claim according to law in the future (Article

16of Interpretation II).

Misunderstanding 4: The property is agreed to belong to one party but it is safe without transfer. Positive explanation: Before the transfer, the real estate is still registered in the name of both parties or the other party, and there is a risk of being sealed up, mortgaged or the other party's repentance. After the agreement takes effect, the transfer should be handled as soon as possible and the liability for breach of contract should be agreed.

6. Drafting List and Operation Steps

Make two lists before drafting: common property list (real estate, vehicles, deposits, financial management, equity, insurance, provident fund, pension personal account, creditor's rights) and common debt list (mortgage, credit loan, loan, credit card arrears, guarantee). Then proceed in sequence: ① Clarify the child support plan and evaluate the feasibility of visiting; ② Determine the property ownership, discount compensation and transfer arrangement item by item; ③ Check the debts one by one and determine the subject of repayment; ④ Draft the first draft and cross-check whether there are any omissions; ⑤ Review the validity one by one to exclude invalid and unenforceable contents; ⑥ Both parties shall carry the divorce agreement until the marriage registration authority handles registration (including 30-cooling-off period), the agreement shall take effect from the date of registration; ⑦ After the agreement takes effect, it shall timely handle the performance matters such as real estate transfer, loan change, account transfer, etc.

7. the cooling-off period and the time node in the registration process

The drafting of the agreement is only the first step, and the time node in the registration process also determines whether the agreement can take effect. Article 1077 of the Civil Code sets a cooling-off period for divorce: within 30 days from the date of receipt of the application for divorce registration by the marriage registration authority, if either party is unwilling to divorce, the application may be withdrawn; within 30 days after the expiration of the time limit, both parties shall apply to the marriage registration authority in person to issue a divorce certificate; if they fail to apply, the application for divorce registration shall be deemed to have been withdrawn. Disassemble the two "30 days": the first 30 days are the cooling-off period (which can be withdrawn unilaterally), and the second 30 days are the window period for obtaining the license (both parties must be present together. If the time is overdue, it will be deemed as withdrawn and a new application will be required). In practice, it is not uncommon for one party to go back on his word, travel and quarrel to lead to "the expiration of the calm but miss the license window". Re-application means that the whole process is repeated-the license collection time should be written into the schedule of both parties at the drafting stage of the agreement.

The divorce agreement takes effect from the date when the marriage registration authority issues the divorce certificate, not when it is signed. After signing, before the license, either party may withdraw the application, the agreement does not take effect. In addition, pay attention to the requirements of the registration link: both parties must bring ID cards, household registration books, marriage certificates, and divorce agreements that contain opinions on child support, property, and debt handling, and apply together at the scene; one party involved is a person with limited capacity for civil conduct or is unable to express true If you wish, divorce cannot be agreed and can only be resolved through litigation. For agreements involving real estate transfer, loan change and equity transfer, the performance procedures must be started in a timely manner after obtaining the license-the transfer and change registration will not be completed automatically after the agreement takes effect. Both parties need to cooperate to sign documents, pay taxes and fees and go to the corresponding departments for processing. The longer the delay, the more difficult it will be to cooperate.

For families involved in multiple houses, equity and complex debts, it is suggested to use the cooling-off period of 30 days to complete three things: one is to verify the conditions and materials of transfer and loan change with the bank, tax and registration departments; the other is to make a schedule for the implementation of the agreement (transfer, payment and handover) and clarify their respective division of labor; the third is to check again whether there are any omissions in the list of property and debts-the cooling-off period is not only a buffer given by law, but also the final window to make the agreement more detailed. If you miss the license window to reapply, the whole process will start all over again, and the cost will increase exponentially.

Class Case Reference: In a property dispute after divorce tried by Cixi Court in Ningbo, the court held that the divorce agreement was signed voluntarily by both parties and expressed their true intentions, and there was no fraudulent coercion; the child support, property division and dissolution of marriage were a whole during divorce, and one party later claimed unfair division and repented on property ownership, lacking factual and legal basis, and rejected his claim. Trial Court: Ningbo Cixi Municipal People's Court Case No.:(2014) Yong Ci Hu Min Chu Zi No. 782

8. Frequently Asked Questions

Does the divorce agreement have to be written on the spot at the Civil Affairs Bureau?

No. You can draft it yourself or ask a lawyer to draft it before going to the marriage registration authority. The registration authority will only examine the agreement in form and will not check the details of the property and debts of the parties. Therefore, the agreement of complex families should be perfected by itself before registration.

The agreement stipulates that the house will be given to the child—can this decision be revoked?

According to Article 20 of the (II) for the Interpretation of Marriage and Family of Civil Code, if the divorce agreement stipulates that the common property is given to the children, the court will not support the cancellation of one party's request before the transfer of property rights after the divorce (except for the consent of the other party); the cancellation can only be made if it can prove that there was fraud or coercion when signing the contract. Once an agreement has been reached regarding the child, the transfer of ownership should be processed as soon as possible.

After a divorce agreement has been drafted, can it still be supplemented or amended?

can be modified by negotiation at any time before registration; after registration, both parties should sign a written supplementary agreement separately for the modification of the content of the agreement, and the corresponding modification registration should be handled in time for those involving real estate and other properties, and the maintenance fee, visiting and so on can still be separately agreed or appealed for adjustment.

Can a divorce agreement stipulate that one party shall assume all joint debts?

can agree on the internal commitment mode of both parties, but the agreement has no effect on creditors-creditors can still claim from both parties according to the loan contract (Article 1,064 and Article 1,089 of the Civil Code), and the undertaking party can recover from the other party according to the agreement after paying off. If, with the intent to evade debts, the parties agree that all property shall belong to one spouse and all debts to the other, the creditor may, pursuant to Articles 538 and 539 of the Civil Code, seek to have the property division clause set aside. Such internal agreements must not be used as a means to shield oneself from external liabilities.

What should you do if, after the agreement is signed, you discover that the other party has concealed assets?

First look at whether the concealed property has been dealt with in the agreement: if it belongs to the missing or concealed property that has not been dealt with in the agreement, it can sue for division again within three years from the date of discovery and claim that the other party has less or no division (Article 1092 of the Civil Code); if the terms of the agreement itself are signed by fraud, it can request to revoke the corresponding terms within one year from the date of knowing or should knowing the date of the date of the date of the date of the date, and simultaneously apply for property preservation to prevent the continued transfer of property. Don’t confuse the two paths; choosing the wrong one will waste your time.

9. Practical Insights from a Lawyer

A valid divorce agreement can be summarized in four key criteria: comprehensive terms, genuine intent, lawful content, and enforceability. The first three points are easy to understand; the one most often overlooked is the last: many people draft clauses that sound impressive but fail to specify when and how obligations are to be performed, or what happens if they are not. For example, who will own the property, within how many days both parties must cooperate to complete the transfer of ownership, who will continue repaying the mortgage, and how any delays in completing the transfer will be handled—only when these matters are specified with concrete timeframes and actions can the agreement truly bind the parties.

It is recommended to draft the list of items before drafting the clauses.. List the matters to be dealt with one by one: the meaning of voluntary divorce, child support and visitation, the amount and payment method of maintenance, the division of common property (real estate, deposits, vehicles, equity, insurance policies, etc.), the assumption of common debts, the transitional arrangement of household registration and residence. Write an independent clause item by item, avoid writing a general sentence "the rest of the property belongs to each other"-this sentence often gives up the property that the other party did not list, and it is very difficult to recover it afterwards.

Be especially careful with agreements involving personal rights. To remarry, remarry, whether to another family as a change of custody or stop payment conditions, such provisions do not have legal effect, written also can not protect you. At the stage of writing, the actions that can be performed should be realistic and the invalid ones should be taken for granted. Read through before signing, and check from the perspective of "how do I use this agreement when the other party does not cooperate in the future", which is much more important than pursuing beautiful wording. An agreement that can be read, used and fulfilled is a real divorce.

The perfect divorce agreement is a "written anti-dispute tool": the terms are complete to prevent omission, the meaning is true to prevent revocation, the content is legal to prevent invalidation, and the specific implementation can prevent wrangling. The drafting focused on three types of high-risk points-invalid provisions involving personal rights (remarriage conditions, waiver of visits, exemption from maintenance), the handling of mortgage houses and debts, the implementation of transfer and default liability. For Ningbo families, it is not uncommon for two mortgage houses, parents' contributions, equity and other assets to overlap. It is suggested that professionals should check the validity of the terms before registration, sign and fix the property list, and handle the transfer and loan changes as soon as the agreement takes effect. Don't let the "remarriage clause", which seems reasonable but actually invalid, bury hidden dangers.