Insights

Is the "property owned by children" clause in Ningbo divorce agreement valid?

Ningbo Author：LuXu WANG

The raising of 1. issues

A few days ago, I received a telephone call: when a couple divorced, they agreed that the only house under their name would be owned by their son, but three years after the divorce, the man went back on his word and said that the house had not been transferred and he would withdraw the gift.

The woman was very anxious and asked me whether this "property belongs to the children" agreement was effective and whether the children could claim the property to themselves.

This paper will focus on the above issues, from the legal provisions, practical operation, typical cases of three dimensions of the system.

2. legal basis

article 10176 of the the People's Republic of China Civil Code stipulates that the divorce agreement shall state the intention of both parties to divorce voluntarily and the consensus on matters such as child support, property and debt handling.

Article 143 of the the People's Republic of China Civil Code stipulates that civil legal acts that meet the following conditions are valid: the actor has the corresponding capacity for civil conduct; the meaning is true; it does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs.

Article 522 of the the People's Republic of China Civil Code stipulates that if the parties agree that the debtor shall perform the debt to a third party, and the debtor fails to perform the debt to the third party or the performance of the debt does not conform to the agreement, it shall be liable to the creditor for default. If the law provides or the parties agree that a third party may directly request the debtor to perform the debt to it, and the third party fails to expressly refuse within a reasonable period of time, and the debtor fails to perform the debt to a third party or the performance of the debt does not conform to the agreement, the third party may request the debtor to bear the liability for breach of contract.

3. core points

1. The nature of the terms: not an ordinary gift, but a contract for the benefit of a third party.

The "property belongs to the children" clause in the divorce agreement is not a unilateral gift by one of the spouses to the children, but a property arrangement made jointly by the spouses. It is attached to the divorce status relationship, including emotional compensation, child support, property division and other multiple factors, with the dual attributes of identity and property relations.

In judicial practice, most people think that this clause belongs to the "third party interest contract"-the husband and wife create rights for their children and set obligations for each other. As long as the marriage is dissolved, the clause becomes effective and the parents shall perform it in accordance with the agreement.

Does the child have a direct claim?

Even if the agreement does not explicitly state that "the child has the right to request the transfer of ownership directly", based on the particularity of family relations and the spirit of legislation to protect the interests of minor children, the court will usually recognize the child's right to request the parents to perform the transfer obligation. Children can sue their parents directly as plaintiffs and request assistance in handling transfer registration.

3. Who owns the property before the transfer?

Before the transfer registration of the property, the ownership still belongs to the original registered right holder. Children enjoy only the right to perform based on the divorce agreement, not the right to property. This is also the reason why children need to promote the transfer of ownership through litigation in many cases after one parent goes back on his word.

4. boundary conditions

  • if the agreement itself has fraud, coercion, malicious collusion to harm the interests of others, etc., the children or relevant interested parties may claim that the agreement is invalid or revocable.
  • If the property has been mortgaged, seized or involves the interests of other creditors, the transfer may be restricted.
  • If the agreement is "property owned by the children" but does not specify the scope of the property, it may not be enforced because the agreement is unclear.
  • If one of the parents sells the property agreed to be given to the child to a bona fide third party without authorization, the third party may obtain ownership on the basis of the credibility of the real estate registration, and the child can only claim compensation from the parents.

5. operational steps

  1. the agreement is clearly written: specify the specific property information, transfer time, who will cooperate with the handling, liability for breach of contract, and avoid general statements.
  2. As soon as possible for the transfer of ownership: as soon as possible after the entry into force of the agreement for the transfer of property or deposit delivery, to prevent one party to renege or property is disposed. In Ningbo, after divorce registration, you can go to the real estate registration department for transfer registration with the divorce certificate, effective divorce agreement and other materials. It is recommended to complete the real estate transfer first and then deal with other matters.
  3. Retention of evidence: preservation of the divorce agreement, proof of property ownership, communication records, evidence of the other party's repentance.
  4. Children sue for rights: if the parents fail to perform, the children can sue as plaintiffs and request the court to judge the parents to assist in the transfer of ownership.
  5. Note the statute of limitations: if it is claimed to revoke the agreement, it should be made within one year from the date on which the cause of the revocation was known or should have been known.

6. common mistakes

myth 1: Without transfer of ownership, the agreement was written for nothing. The property agreement in the divorce agreement is legally binding, and the non-transfer does not affect the validity of the agreement, but the property right has not been transferred, and the children can sue for performance.

Myth 2: One parent can revoke the gift at will. Ordinary gifts can be revoked before the transfer of property rights, but the "property belongs to the children" clause in the divorce agreement cannot usually be revoked arbitrarily because of the nature of the status relationship and the overall arrangement.

Myth 3: If the property is given to the child, the creditor cannot execute it. If the property has not been transferred, the original registered right holder is still the debtor, and the creditor can still execute the property.

Myth 4: Agreed property to children, maintenance can be less. Property arrangements and maintenance payments are two legal relationships, and unless the agreement expressly provides for the use of property against maintenance, the non-dependent party is still required to pay maintenance in accordance with the law.

Leaving property to children in the divorce agreement reflects the parents' responsibility and care for their children, but affection alone is not enough, and more attention should be paid to legal effect. It is suggested that the terms should be refined when drafting the agreement, and the ownership change should be handled in time, so that the rights and interests of children can be truly implemented.

Summary of 7. relevant laws and regulations

the main legal provisions covered in this paper include:

  • article 143 of the the People's Republic of China Civil Code
  • article 52 of the the People's Republic of China Civil Code

8. Practical Operation List

if you are facing related problems, it is recommended to follow the following steps:

  1. collect evidence: organize all written materials, transfer records, chat records, etc. related to the case;
  2. consult a professional: before taking any action, it is recommended to consult a professional lawyer to understand their rights and possible legal consequences;
  3. assessing costs and benefits: litigation requires time and economic costs, which need to be combined with the amount of the case and the probability of winning the case;
  4. choice of dispute resolution: give priority to negotiation or mediation, and consider litigation if no agreement can be reached;
  5. note the statute of limitations: the law does not protect the person lying on the right to sleep, be sure to claim the right within the statutory statute of limitations.

Practical Experience of 9. Lawyers

the divorce agreement stipulates that "the house belongs to the child", which is not the same as an ordinary gift. It is more like an arrangement jointly made by both husband and wife and attached to the divorce status relationship. The other party cannot casually go back on his word and withdraw. However, the validity of the terms does not mean that the child will get the house immediately. The key is still one step away-transfer of ownership. No matter how beautifully written the agreement is, as long as the property right is still in the name of the parents, the other party will be able to find various reasons to delay it in the future, or even sell and mortgage the house, and the child's rights will be suspended in mid-air.

Therefore, when talking about this agreement, we must write down the pace of performance: when to cooperate with the transfer of ownership, the property shall not be sold as mortgage before the transfer of ownership, and what responsibilities should we bear if we fail to do so within the time limit, the more specific the better. After the agreement as soon as possible to do the transfer, can be implemented at the registration level, do not stay on paper. If the child is an adult, the child can be directly involved as the right holder to reduce the wrangling over "who is the appropriate subject" in the future. If the child is still young, it is necessary to specify in the terms who will manage it on his behalf and how the proceeds will be used for the child.

In case the other party goes back on its word and refuses to transfer the ownership, don't panic and accept "talk again". Such terms are attached to the divorce arrangement, the other party's unilateral withdrawal space is limited, you can ask it to continue to perform, if necessary, through litigation claims to assist in the transfer. Before the lawsuit, the divorce agreement, property certificate and the communication record of the other party's refusal to perform should be fixed so that the request can be based on evidence. Instead of repeated verbal urging, it is better to put the performance of the action on the legal process as soon as possible, and don't leave any time difference for the house to be disposed.