After the fake divorce in Ningbo, the identity relationship was dissolved. Is the divorce agreement still valid?

a ningbo lady consulted: she and her husband went through the divorce registration in order to buy a house, and the divorce agreement stipulated that all three houses belonged to the man. Now that the man refuses to remarry, she wants to know whether the agreement signed for a “sham divorce” solely to purchase a property can be declared invalid. First of all, let's give a conclusion: once the divorce registration is completed, the identity relationship will be legally dissolved. There is no concept of "false divorce" in the law, and neither party can request the restoration of the marriage relationship on the grounds of "false divorce". However, if there is a false expression of intention or damage to the interests of creditors, the property division clause in the divorce agreement may be deemed invalid or revoked, It is not absolutely impossible to overturn it.

1. Legal Basis: Different rules apply to personal status and property provisions.

Look at the identity relationship side first. Article 10176 of the the People's Republic of China Civil Code stipulates that if both husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration at the marriage registration authority in person; Article 10170 stipulates that the marriage registration authority shall register and issue a divorce certificate if it finds that the divorce is indeed voluntary and has reached an agreement on matters such as child support, property and debt handling. Once the divorce registration is completed, the marital relationship is terminated. The registering authority reviews only whether the parties have reached a voluntary and mutually agreed upon settlement; it does not examine the motives for the divorce.

Looking at the property clause side, there are three levels of rules that can be invoked:

1. Article 146 of the the People's Republic of China Civil Code: The civil juristic act carried out by the doer and the relative with false intention is invalid. If the property division clause constitutes a collusive fictitious expression of intent, it may be declared invalid on that ground.
2. Articles 538 and 539 of the the People's Republic of China Civil Code: If the debtor disposes of the property rights and interests without compensation, or trades at an obviously unreasonable price, which affects the realization of the creditor's claim, the creditor may request the people's court to revoke it.
3. Article 3 of the Interpretation (II) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the the People's Republic of China People's Republic of China: If the creditor of one of the spouses has evidence to prove that the property division clause in the divorce agreement affects the realization of his or her creditor's rights, and requests to revoke the relevant clause by reference to the provisions of Article 538 or Article 539 of the Civil Code, the people's court shall comprehensively consider the overall division and performance of the joint property of the husband and wife, the burden of child support, the fault of divorce and other factors, and support it in accordance with the law.

Dissolution of 2. Identity Irrevocable: Risk commences upon completion of registration

As long as both parties voluntarily go to the marriage registration office to handle the divorce registration, the marriage relationship will be dissolved. If either party requests to restore the marriage relationship on the grounds of "false divorce" afterwards, the court will not support it. To remarry, both parties must re-register their marriage, and such registration also requires the voluntary consent of both. If one party is unwilling to remarry, no authority or individual may compel them to do so.

The motives behind “sham divorces” (such as purchasing property, obtaining household registration, tax avoidance, or qualifying for a loan) are not legally protected. Divorce for policy purposes means that the parties voluntarily bear the legal consequences of the dissolution of the identity relationship, including: the other party refuses to remarry, remarries with another person during the period, property belongs to the other party according to the agreement, and the common debt may still be jointly and severally. The most common consequence in practice is "fake play"-after divorce, one party goes back on his word and does not remarry, the other party's purpose of buying a house fails, but the property has been transferred according to the agreement.

Three paths 3. property division clause may be overturned

The identity relationship cannot be reversed, which does not mean that the property clause cannot be moved. Depending on the subject and basis of the claim, there are three paths:

1. One party claims that the expression of false intention is invalid: if it can be proved that the two parties did not sign the property division clause with the true intention, but conspired to hypocritical agreement in order to avoid policies such as house purchase and loan, it can claim that the clause is invalid according to Article 146 of the Civil Code. The difficulty lies in the proof: the divorce agreement has the dual attributes of personal relationship and property relationship, the court is very cautious in judgment, the simple "to buy a house" motive is not enough to overturn the agreement, but also need to be combined with chat records, transfer vouchers, actual living conditions after divorce and other evidence comprehensive determination. When giving evidence of false intentions, the court focuses on four types of facts: one is the time anomaly-divorce registration is almost synchronized with house purchase and loan application; The second is the behavior anomaly-after divorce, both parties still live together, repay loans together, raise children together and manage property together; The third is the capital anomaly-the property nominally belongs to one party and is actually used and disposed of jointly by both parties; the fourth is the anomaly of communication-expressions such as "remarriage as soon as you finish" and "fake divorce to buy a house" appear in chat records and total conversation recordings. The more the four types of facts, the higher the success rate of claiming false intentions; on the contrary, if the two parties have lived independently and their property has been completely cut off after divorce, the claim of "false divorce" has basically failed.
2. Creditors apply for revocation: if "false divorce" results in all the property belonging to one party and no property under the name of the other party, thus making the creditor's claim unrealizable, the creditor can request to revoke the property division clause in the divorce agreement according to Articles 538 and 539 of the Civil Code and Article 3 of the Interpretation (II). The court will consider the overall division and performance of the common property, the burden of child support, divorce fault and other factors, and will not support the revocation just because "the property is more distributed to one party.
3. Re-division in a situation where both parties actually still live together: If both parties still live together and manage the property together after divorce, and can prove that the property division is not true, the possibility of claiming invalidation or re-division will increase; on the contrary, if the divorce agreement has been fulfilled and the property has been transferred, the difficulty of claiming to overthrow will increase significantly.

The judgment scale can be understood in this way: Zhang agreed to divorce his wife in order to avoid the purchase restriction, and agreed that all the real estate should belong to his wife. After the divorce, both parties still lived together. After Zhang refused to remarry, his wife sued for "false divorce and false intention" to confirm that the property clause was invalid and re-divided. The court examined the fact that the two parties still lived together and repaid the loan together after the divorce, and combined with the chat records before and after the divorce about "remarriage after the completion of the matter", found that the property division clause was a hypocritical expression of conspiracy to circumvent the policy and supported the re-division. On the other hand, if both parties live independently after divorce and the property has actually been divided, it is usually difficult to overturn the agreement based on the statement that "it was a divorce to buy a house in the first place.

Key points and time limit of proof for invalidation or revocation of 4. claim

No matter which path you take, evidence is the decisive factor; it’s recommended to gather it in advance.

1. Evidence of the true intent: Chat records, call recordings, and witness testimonies between both parties regarding the purpose of the “sham divorce” (e.g., purchasing a property, obtaining a loan, registering household registration). According to Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence has many defects in proof and is difficult to be accepted-chat records should be kept in the original carrier and present the context as completely as possible, notarized or fixed with credible timestamps when necessary.
2. Property transfer situation: the property ownership, usage, loan repayment records and common living expenses vouchers before and after the divorce prove that "it is called divorce but actually living together".
3. time clue: the relationship between the time of divorce registration and the time of house purchase and loan application is used to prove the purpose of divorce.

The time limit should be divided into two groups: if it involves the creditor's revocation, it is limited by one year's exclusion period, which is calculated from the date when the creditor knows or should know the cause of revocation; if it involves the re-division of property, pay attention to the application of the statute of limitations. The starting points and consequences of the two types of periods are different, and it is important to calculate them against the calendar, and the entry to the program is lost if the period is exceeded.

5. Common misconceptions

Myth 1: A fake divorce allows you to request the restoration of the marital relationship. positive solution: once the divorce registration is completed, it has legal effect and cannot be revoked on the grounds of "false divorce"; remarriage requires both parties to re-register their marriage.

Misunderstanding 2: If the divorce agreement says that the property belongs to the other party, it must not be changed. Positive Solution: In case of false intention or damage to the interests of creditors, the property division clause may be deemed invalid or revoked.

Misunderstanding 3: False divorce for buying a house is just a policy loophole, and there is no legal risk. Positive solution: In addition to the possibility that the property division may be overturned, it may also face policy risks such as purchase restrictions, loans, taxes and fees, etc. If the circumstances of applying for loans with fictitious divorce materials are serious, it may even be suspected of breaking the law.

Misunderstanding 4: The court will take the initiative to review the "false divorce" and correct it.Correct answer: The court does not intervene ex officio in voluntary divorce registrations; only when a party or a creditor lawfully asserts such a claim and furnishes the requisite evidence may the property-related provisions be subject to modification.

6. Exercise of the creditor's right of rescission: requirements, scope, and one-year prescriptive period.

Creditors’ right to rescind property division clauses in “sham divorces” constitutes a primary regulatory measure against divorce‑based debt evasion; the specific rules merit detailed analysis.

1. Legal basis: Article 538 of the Civil Code is aimed at gratuitous disposition (abandonment of creditor's rights, gratuitous transfer, malicious extension of the performance period), and Article 539 is aimed at obviously unreasonable low-price or high-price transactions; In the divorce agreement, if one party "cleans out of the house" and the property is transferred to the other party almost free of charge, it falls into the scope of revocability.
2. Subject and Premise: It is the creditor who advocates the cancellation, not the party to the divorce; the premise is that the division of the property affects the realization of the creditor's rights-there is no full liability property in the name of the debtor after the divorce. The earlier the claim is formed and the closer it is to the divorce, the stronger the rationality of the revocation.
3. Scope of revocation: limited to the amount of creditor's rights, what is revoked is the part of property division that affects the realization of creditor's rights, not the whole divorce agreement is of course invalid; the court combines the overall division and performance of the joint property of husband and wife, the burden of child support, divorce fault and other factors discretion (Article 3 of the Interpretation (II)).
4. one-year exclusion period: the right of rescission shall be exercised within one year from the date when the creditor knows or should know the cause of the rescission. If the right of rescission is not exercised within five years from the date when the debtor's behavior occurs, the right of rescission shall be extinguished.
5. Criminal risks of serious circumstances: after the judgment comes into effect, it evades execution by false divorce and false property division, and if the circumstances are serious, it may be suspected of the crime of refusing to execute the judgment and ruling; "false divorce" may also involve other legal liabilities by colluding with other behaviors that harm the interests of creditors.

A common question associated with it is: "Is the contract valid to buy a house after a" fake divorce "in order to avoid the purchase restriction?" the explanation for this is: divorce registration and subsequent house purchase are two different things: divorce registration is legal and valid, and cannot be revoked on the grounds of "false divorce"; Whether the purchase contract is valid and can be performed depends on the purchase qualification policy at the time of online signing, loan and transfer of ownership-if the contract cannot be performed due to lack of purchase qualification, it may be liable for breach of contract. “Sham divorces” used to circumvent home-purchase restrictions compound identity-related issues, property disputes, and policy risks, making the practice ultimately not worth the cost.

A common problem associated with it is: "" fake divorce "remarries after dividing the property, how to calculate the property?" The explanation of this is: remarriage is a new marriage. The property that has been divided in the original divorce agreement belongs to the respective property of the parties before the remarriage, and if it is not agreed in writing as common property at the time of the remarriage, it shall not automatically return to joint ownership as a result of the remarriage; the newly acquired property after the remarriage shall be dealt with in accordance with the rules of joint property of husband and wife. Therefore, "leave first and then recover" does not wash away the segmentation effect of the original agreement, but may allow one party to "legally" take away most of the property.

Class Case Reference: In a property dispute after divorce tried by Ningbo Zhenhai Court, the plaintiff requested to cancel the property ownership agreement in the divorce agreement on the grounds of "false divorce" and being coerced by fraud, which was not supported due to insufficient evidence; the court determined that the divorce agreement was a true expression of intention integrating personal, property and support, and the property division clause was binding on both parties, and the transfer of ownership was assisted by decree. Trial Court: Ningbo zhenhai district People's Court Case No.:(2020) Zhejiang 02

11Minchu No. 1252

7. FAQ

After the "fake divorce", the other party does not want to remarry, can he sue for remarriage?

No. The establishment of the marriage relationship is based on the voluntary registration of both parties, and the court will not decide on compulsory remarriage; only property and children can be claimed, and evidence is needed to support it.

After a “sham divorce” to buy a home, can the property still be reclaimed?

To be divided into different situations: if the property clause is a false intention and the evidence is sufficient, it can be claimed to be invalid and divided again; if both parties truly divide the property (just divorce for the purpose of policy), the agreement is valid and it is difficult to "get back". The completeness of the evidence determines the outcome.

Can the creditor take back the property divided by the "fake divorce?

Eligible can. If the creditor has evidence that the property division clause of the divorce agreement affects the realization of his claim, he may request the revocation of the relevant clause in accordance with Articles 538 and 539 of the Civil Code and Article 3 of the Interpretation (II), provided that it is exercised within one year of the exclusion period.

Do I have to pay back the debts borrowed by the other party during the "fake divorce?

After divorce, both parties are no longer husband and wife, and their debts are borne by themselves in principle; however, if the debts during the divorce and actually living together are used for living together or operating together, they may still be treated as joint debts, which need to be judged in combination with the flow and purpose of funds.

What will happen to the property after the creditor cancels successfully?

The rescinded property division is invalid from the beginning, and the transferred property is returned to the name of the debtor (the party who transferred the property at the time of divorce) for the creditor to apply for enforcement; the scope of rescission is limited to the property that affects the realization of the creditor's rights. Other arrangements that have been formed within the husband and wife are not affected by course and need to be negotiated or resolved through litigation.

Practical Experience of 8. Lawyers

The so-called "fake divorce", once the divorce registration is completed, the identity relationship has been legally dissolved, the law does not recognize the "fake", neither party can claim to restore the marriage on the grounds that it was to buy a house at the beginning, and the court will not support the confirmation of the invalid divorce. Therefore, we must first have a clear judgment: if the other party refuses to remarry, all you can fight for is the property division clause, not the marriage itself. Many people spend all their energy on "proving that we don't really want to leave". They go in the wrong direction, spend time in vain, and miss the window period when the property terms are still active.

Whether the property clause can be overturned depends on the specific circumstances and evidence. If the original division of property is a false representation of the conspiracy of the parties, the part can be claimed to be invalid, and if the division clearly affects the interests of creditors, creditors also have room for avoidance. The difficulty lies in the proof, the divorce agreement has the dual attributes of personal and property, the court will not only rely on "we are a false divorce" oral statement to deny it. Therefore, the evidence should try to find the original communication record about the purpose of buying a house, the real arrangement of property ownership before and after handling, the actual flow of funds and real estate, to show that the division is not the real meaning, rather than just emphasizing the motive.

the more realistic experience is: rather than remedy afterwards, it is better to think of the risk before deciding "fake divorce. What really needs to be prevented is that after the divorce, the other party will not remarry, dispose of property during the period or even remarry, and the agreement in your hand is difficult to overturn. If you have already taken this step and found that the other party has transferred or disposed of at a low price, you should fix the evidence as soon as possible and evaluate whether you can stop loss. There is also a strict time limit for the creditor's right of revocation, which cannot be delayed. The private agreement to promise "remarriage upon completion" basically has no guarantee. Remarriage requires the willingness of both parties and cannot be replaced by any organ. This must be clearly recognized in advance.

"False divorce" is a high-risk arrangement: the dissolution of the identity relationship takes effect immediately and is irreversible. Although the property clause may be overturned due to false intentions or damage to the interests of creditors, the burden of proof is heavy and it is difficult to overturn. For parties who are considering or have already "fake divorce", it is suggested that professional opinions should be consulted on purchase restriction, loan and tax policies before signing the contract, and all consequences of "fake play" should be evaluated; If disputes have occurred, the chat records and transfer vouchers proving the true meaning of both parties should be kept completely, and the evidence should be fixed as soon as possible before discussing the claims. Don't think that "everything will be fine if you remarry"-the gap between registration and remarriage, property and debt risks are always pending.