Insights

Why Ningbo Marital Property Agreement Is Invalidated

Ningbo Author：LuXu WANG

Often a party in Ningbo comes to me with a marital property agreement: at the time I asked my husband to sign this agreement, agreeing that the house belongs to me, why did the court say it was invalid? Marital property agreements seem simple, but in fact they are easily denied because of content or form issues.

1. legal basis

article 1065 of the the People's Republic of China Civil Code: A man and a woman may agree that the property acquired during the marriage and the pre-marital property shall belong to each, jointly or partly to each, partly to each. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 10

62and 1063 of this Law shall apply.

Article 143 of the the People's Republic of China Civil Code: Civil legal acts that meet the following conditions are valid: (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 of the the People's Republic of China Civil Code: Civil juristic acts that violate the mandatory provisions of laws and administrative regulations are invalid. Civil juristic acts that violate public order and good customs are invalid.

2. core points

1. Must be in writing

marital property agreements must be in writing. If there is an oral agreement or no written agreement, even if there is a consensus between the two parties at the time, it is extremely difficult to prove the evidence in the event of a dispute, and the court usually does not support it.

2. The scope of property must be clear and specific.

The agreement should clearly state the specific information of the property, such as the location of the property, the title certificate number, the license plate number of the vehicle, the bank and account number of the deposit, etc. If only "all property belongs to a party" is written, the agreement may be deemed invalid or unenforceable because it is not clear. Ningbo local real estate should specify the location and title certificate number in the agreement, which can be filled in after verifying the registration information at Ningbo Real Estate Registration Center, so as to avoid difficulty in implementation due to unclear agreement.

3. Only the husband and wife's own property can be disposed.

The agreement can only agree on the joint property of the husband and wife or the personal property of one of the husband and wife, and cannot dispose of the property of parents, children or other third parties. For example, the agreement that "the property in the name of the in-laws belongs to the woman" is invalid.

4. No restriction of personal rights

if it is agreed in the agreement that "one party derails and goes out of the house", "one party files for divorce and gives up all property" and other clauses that are conditional on personal behavior, they may be deemed invalid for restricting the freedom of divorce and violating public order and good customs. However, simple property attribution agreements, even if related to the duty of loyalty, may still be supported in some judicial practices.

5. Not to prejudice the interests of creditors

if it is clear that the purpose of the agreement to attribute all the property to one party is to avoid debt and harm the interests of creditors, creditors may request cancellation of the agreement in accordance with the relevant provisions of the Civil Code.

3. boundary conditions

  • if there is fraud, coercion, material misunderstanding, etc. at the time of signing the agreement, the injured party may request revocation within the statutory time limit.
  • If the content of the agreement is unfair and one party is in a clearly weak position at the time of signing, the court may find it revocable.
  • If the property ownership agreement is involved but the property right change is not registered, one party may claim to revoke the gift, especially when the property is the personal property of one party, the risk is higher. In Ningbo's local practice, this kind of situation is common in the marital agreement that the property belongs to one party but has not been transferred, and when the divorce, the other party repents and claims to cancel, and suggests that the change registration should be handled as soon as possible after the agreement.

4. operational steps

  1. list the basic information of both parties: including name, ID number, contact information, etc.
  2. Clear property list: one by one list of real estate, vehicles, deposits, equity, debt and other specific information.
  3. Agreed attribution: specify which property is owned by each, which is jointly owned or shared on a pro rata basis.
  4. Dealing with debt issues: clarify the manner in which debts are assumed during the marriage relationship to avoid recovery by creditors.
  5. Avoid personal restrictions: Do not include punitive clauses that presuppose divorce, infidelity, etc.
  6. Signed and dated by both parties: it is recommended that both parties sign in person and notarize if necessary to enhance the probative force.

5. common mistakes

myth 1: It must be effective to write "clean body and leave home. Error. Clauses conditioned on the restriction of freedom of divorce or personal rights are likely to be considered invalid.

Myth 2: Marital property agreements must be notarized to be valid. Error. Written form and signed by both parties have legal effect, notarization is only to enhance the force of proof, not the entry into force elements.

Myth 3: The agreement stipulates that the property belongs to me and the house is mine. Error. If the property involves the personal property of the other party or has not yet been registered, there is still a risk of revocation or unenforceability.

Myth 4: The agreement can agree on who the custody of the child belongs. Error. The marital property agreement shall be limited to the property agreement, and the custody of the children shall be decided by the court in the event of divorce on the basis of the principle of the most favorable to the minor children.

Practical Experience of 6. Lawyers

the marital property agreement should be valid, provided that both parties are true and voluntary, in written form, and the content is not illegal. Common negative situations are concentrated in several categories: restrictions on personal rights, such as the agreement that one party may not divorce or give up maintenance; the disposition of property that does not actually belong to two people, such as the property of a third party or company assets; the purpose of avoiding debt; and the content is clearly unfair. To get an agreement, the first step is to check against these categories to see if there is any thunder. In many cases, the problem has been buried at the moment of signing.

Whether it is effective or not depends on the signing process. Whether the two parties signed it in person, whether there was coercion or fraud, whether only one party signed it or signed it afterwards, and whether the content is consistent with the true meaning of both parties are all related to whether the agreement can stand. If conditions permit, it is preferable to have a third party present at the time of signing or to leave a record of the process. The agreement itself should also be written completely, stating which property is applicable, how to change and terminate, and which one shall prevail in case of conflict with the will or other agreements. Don't just write "the house belongs to me". The more general, the easier it is to overturn.

Find problems to remedy as soon as possible. Try to amend the defective terms with a new agreement or supplementary agreement within the marriage, and more importantly, put the rights into the actual state-the transfer of the transfer of ownership, the change registration of the change registration, no matter how beautifully written the agreement is, it may be reversed by the other party if it does not fall to the ground. If you have already entered the lawsuit, it is much more effective to focus on voluntariness, property ownership and whether there is any harm to the interests of third parties, and to give evidence around these than to emphasize "such unfairness" in general terms.