Insights

How to sign Ningbo prenuptial property agreement before it is valid

Ningbo Author：LuXu WANG

A pair of young people who were about to get married came to consult: the man had a full house and a scooter in Ningbo before marriage, and the woman's parents gave a dowry. The two wanted to sign a prenuptial property agreement to clarify their premarital property and post-marital income distribution, but they were afraid that the agreement would be signed for nothing. Such concerns are common.

One sentence conclusion: The prenuptial property agreement is valid as long as it conforms to the written form, both parties are voluntary, the content is clear and legal, and the disposition is the property that both parties have the right to dispose of, and does not violate public order and good customs; but the loyalty clauses such as "cheating and leaving the house" are usually not enforceable.

1. legal basis

article 1065 of the the People's Republic of China Civil Code:

> The man and the woman may agree that the property acquired during the marriage and the pre-marital property shall be owned by each, jointly or partly by each or partly jointly. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 1062 and 1063 of this Law shall apply. The agreement between the husband and wife on the property acquired during the marriage and the pre-marital property shall be legally binding on both parties.

Article 143 of the Civil Code:

> Civil legal acts with 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 26 of the Interpretation (I) on Marriage and Family of the Civil Code:

> The income generated by the personal property of one of the spouses after marriage shall be recognized as the joint property of the husband and wife, except for the fruits and natural appreciation.

2. core points

  1. written form is an essential element. Prenuptial property agreements must be in writing, and oral agreements are difficult to prove in the event of a dispute. It is recommended to be signed and dated by both parties, and important property can be notarized.
  2. Both parties must have full civil capacity and voluntarily sign. The agreement must be signed by both parties in person and may not be signed on behalf of or by proxy. The agreement may be revoked if there is fraud, coercion, taking advantage of others, etc.
  3. The content of the agreement should be clear and specific. The agreement should clearly set out the ownership, possession, use, proceeds and disposition of the property. For example, the real estate should specify the specific address, title certificate number and ownership method (separate ownership/common ownership/shared ownership); Take the real estate in Ningbo as an example, the purchase time and the proportion of capital contribution should also be specified, so as to avoid writing "one set of real estate" in general ".
  4. Only property that both parties have the right to dispose of may be disposed.. The property of parents, children or other third parties cannot be included in the scope of the agreement, otherwise the part of the agreement is invalid.
  5. A prenuptial property agreement may also be entered into within the marriage. "Premarital property agreement" is only the customary name, and marital property agreements concluded after marriage are equally valid. When the other party is found to be at fault but does not divorce for the time being, the signing of a marital property agreement is more substantial than a "guarantee.
  6. Loyalty clauses are usually not enforceable. The court generally holds that the loyalty agreement belongs to the category of emotional morality, and the law does not give it enforcement power. However, the facts recorded in the agreement can be used as a reference factor for determining fault and property division.

3. boundary conditions

  • it is agreed that one party may be deemed invalid due to restrictions on the freedom of divorce or violation of public order and good customs.
  • Agreements for the purpose of handling household registration, evading debts, evading support obligations, etc., are invalid because they violate the mandatory provisions of the law or public order and good customs.
  • Involving property plus name, large cash gifts, it is recommended that timely delivery or notarization, to avoid the gift is revoked.
  • The agreement on the assumption of debt in the agreement is valid only for both parties and cannot be used against bona fide creditors.

4. operational steps

when preparing to enter into a prenuptial property agreement:

  1. list the premarital property of both parties (real estate, vehicles, deposits, equity, creditor's rights and debts, etc.).
  2. Clearly agree on the attribution of pre-marital property, the attribution of post-marital income, and the property system of post-marital income (joint/separate/partial joint).
  3. For real estate, vehicles and other registered property, agree on whether to change the registration and change the time (for name addition or transfer registration in Ningbo, you can consult the real estate registration agency).
  4. Agreed on the sharing of family living expenses, child support costs and other matters.
  5. Signed and dated by both parties, and important agreements can be notarized or witnessed by a lawyer.
  6. Retain the original agreement to avoid difficulties in future proof.

5. common mistakes

myth 1: The prenuptial property agreement must be signed before the marriage registration.

Error. Marital property agreements signed after marriage are equally valid, even after the discovery of the other party's fault, to protect their own rights and interests.

Myth 2: The agreement says "cheating and leaving the house" will definitely be effective.

Error. Loyalty clauses are usually not enforced by courts, but can be used as a reference for determining fault and property division.

Myth 3: A prenuptial property agreement can agree on anything.

Error. The content of the agreement shall not violate the mandatory provisions of the law, shall not circumvent legal obligations, and shall not violate public order and good customs.

Myth 4: Sign the agreement once and for all, there is no need to change the registration.

Error. If the property gift or name addition is involved, the property right change registration or notarization shall be handled in a timely manner, otherwise the donor may cancel the gift before the change registration.

Practical Experience of 6. Lawyers

in order to make the prenuptial property agreement really work, we should first meet several basic conditions: it should be in written form, both parties should voluntarily, the content should be clear and legal, and the disposition is indeed the property that each has the right to dispose of, and it does not violate public order and good customs. These items are indispensable, especially the signatures obtained by both parties voluntarily and with legal content, which are obtained by concealment or pressure, can easily be overturned in the future. Therefore, when talking about an agreement, instead of thinking about how to write the terms more ruthlessly, it is better to make sure that it is the true meaning of the two people. The agreement is for the future. The more frank the talks are, the more it can stand the test on the day when it is really useful.

The content should be as specific as possible, not in general terms. How to distribute real estate, vehicles, deposits, equity and income after marriage, and the scope of their premarital property, should all point to a clear target. If you can list the account and real estate information, you can list it clearly, and if you can specify the proportion of shares, you can specify it clearly. It should be noted that loyalty clauses such as the agreement to derail and leave the house are usually not enforceable, and it is not reliable to use it as a guarantee at the bottom of the box. Rather than betting hopes on such clauses, it is better to write down the attribution itself and let the agreement fall where it can really work.

The timing and form of signing is also worth paying attention. The prenuptial agreement had better be signed before the marriage registration to avoid being questioned after marriage as being coerced or signed afterwards. Both parties shall keep an original copy and notarize it when necessary to fix the true meaning of the signature. Don't sign it after signing. If there are major changes in the property situation in the future, such as new real estate and equity, you can supplement the agreement to keep the agreement in sync with the actual situation. It should be reminded that the agreement mainly binds the property relationship between the two of you, and has other restrictions on the effectiveness of external creditors. If one party is involved in the risk of external liabilities, it should be evaluated clearly in advance before writing.