Insights

How to sign Ningbo prenuptial property agreement is legal and valid

Ningbo Author：LuXu WANG

A pair of prospective couples in Ningbo came to consult: the man had a full house before marriage, and the woman's parents were going to give a dowry. The two wanted to sign an agreement before marriage to make it clear that the property belonged to each other. They are worried that the agreement will not be signed in a standardized way and that disputes will arise in the future when they divorce.

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 1063 of the the People's Republic of China Civil Code: The following property is the personal property of one of the spouses: (1) the premarital property of one of the (II); Compensation or compensation for personal injury suffered by one of the spouses; Property determined to belong to only one party in a (III) will or gift contract; daily necessities dedicated to one party of the (IV); (V) other property that should belong to one party.

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.

2. core points

1. A prenuptial property agreement is not just an agreement on premarital property.

Although it is called "prenuptial property agreement", both parties can agree not only on the ownership of premarital property, but also on the ownership of property acquired after marriage. As long as the agreement does not violate the law, the court will generally respect the autonomy of the parties.

2. Property information must be specific and clear

specific information about each property should be set out in detail in the agreement. For example, the real estate should specify the location address, title certificate number, purchase time and capital contribution. Vehicles should specify the brand model, license plate number and registration time; Deposits should specify the bank, account number, amount, etc. The terms of the agreement are not clear, and the implementation is prone to disputes.

3. Written form is an essential element

it is difficult to guarantee the legal effect of an oral agreement or no written agreement. It is recommended that both parties sign in person and indicate the date of signing. If necessary, it can be notarized or witnessed by a lawyer to enhance the effectiveness of evidence.

4. No restriction of personal rights

the agreement should not include punitive clauses that are conditional on personal behavior, such as "one party files for divorce and leaves the house clean", "one party derails and gives up all property. Such provisions may be found to be invalid for restricting the freedom of divorce and violating public order and good morals.

5. Pay attention to the risk of conversion of property after marriage.

Pre-marital personal property may be considered part of the joint property if it is mixed with the joint property of the husband and wife after marriage, for example, the pre-marital deposit and the post-marital income are deposited in the same account, the pre-marital property is jointly repaid or the investment in decoration is large. This may be expressly agreed upon in the agreement.

3. boundary conditions

  • if there is fraud, coercion or material misunderstanding in the signing of the agreement by one party, the other party may request revocation within the statutory time limit.
  • If the content of the agreement is obviously unfair, the court may find it revocable or partially invalid according to the specific circumstances.
  • Involving parents to fund the purchase of a house, the need to clarify the nature of the parents' contribution is a gift or loan, to avoid future disputes.

4. operational steps

  1. combing the list of property: each party lists the pre-marital property and liabilities, including real estate, vehicles, deposits, equity, debt and so on.
  2. Explicit agreement: choose to own, jointly owned or partially shared, and specify the specific proportion.
  3. Write down the specific information of the property: each property should be clearly written proof of ownership, value, time of purchase, source of contribution, etc. Taking Ningbo real estate as an example, the location address, title certificate number, purchase time and capital contribution ratio should be specified, so as to avoid writing "a set of real estate" in general ".
  4. Agreement on the attribution of income after marriage: If you want the income after marriage to be owned separately, it should be expressly agreed in the agreement.
  5. Avoid invalid clauses: do not include restrictions on personal rights, disposition of other people's property, and evasion of debts.
  6. Sign and keep the original: both parties hold one original after signing, and notarize it if conditions permit.

5. common mistakes

myth 1: Premarital property agreements only apply to wealthy people. Error. Whether it is real estate, vehicles or deposits, as long as there is a clear property ownership needs of the couple can sign. Myth 2: Everything will be fine if you write an agreement, and there is no need to transfer ownership. Error. Involving real estate, vehicles and other property that need to be registered, it is best to handle the property right change or name registration in time, otherwise it may face difficulties in implementation. In Ningbo, the real estate name can be added to the real estate registration agency, and the vehicle change registration can be handled by the vehicle management department. Myth 3: The agreement can agree on "who gets the children if they are divorced". Error. Premarital property agreements should be limited to property agreements, and the issue of child custody should be determined in accordance with the principle of maximizing the interests of the children at the time of divorce and cannot be excluded by prior agreement. Myth 4: One party can't read and the other party can sign it. Error. The agreement must be signed by both parties themselves, and the signing needs legal authorization, otherwise it may affect the effectiveness.

Practical Experience of 6. Lawyers

the most consultation for prospective newcomers is how to write an agreement before it is "tenable". From a practical point of view, as long as both parties voluntarily, in written form, the content is clear and legal, the prenuptial property agreement is valid. The first recognition to be corrected is that the agreement not only concerns the property before marriage, but also agrees on the ownership of the property acquired after marriage. Many people have given up this space in vain. The second cognition is: the more specific the writing, the less contention in the future-the real estate is written with the warrant number, the equity is written with the company and proportion, the deposit is written with the account, and the general "owned by each other" is the most likely to leave a quarrel.

In operation, follow the steps: first make a list of property, and specify the prenuptial house, mortgage, equity, deposit, dowry, etc. item by item; Then negotiate the attribution mode item by item, whether it is owned by each, jointly owned, or part of each and all parts jointly owned; Write in the post-marriage interest and appreciation, daily expenses and debt sharing. Finally, both parties sign and date, involving the registration of changes in real estate, notarization or lawyer's witness when necessary. It is best to leave a mark on the signing process to avoid being questioned later as a "post-signing". The entry into force of the agreement is not conditional on notarization, but notarization can significantly enhance the probative force.

The key to avoiding the pit is not to write the agreement as a "punishment tool": restricting one party with such status conditions as "filing for divorce and leaving the house clean" and "no remarriage" may be invalid due to violation of the mandatory provisions of the law or public order and good customs, but the credibility of the whole agreement is discounted out of thin air. During the negotiation, the two sides often hesitate on "will it hurt feelings if you say so plainly". They can start from "writing clearly to reduce mutual suspicion", which is easy first and difficult to reach item by item. It is also important to remember that the agreement is not a final word and that it must be re-confirmed in writing after a change in the property structure, otherwise the old agreement may not cover the new situation.