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What is the risk of buying a house with a fake divorce in Ningbo? Lawyers advise you not to try.

Ningbo Author：LuXu WANG

The raising of 1. issues

in order to circumvent the purchase restriction policy and obtain the qualification to buy a house, a couple in Ningbo discussed the "fake divorce" and transferred all the real estate to one party, while the other party bought the house as a house-free, planning to merge the real estate after remarriage.

As a result, after the house was bought, the other party refused to remarry. The original "fake divorce" became a real breakup, and the division of property could not be overturned.

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 1076 of the the People's Republic of China Civil Code stipulates: "If the husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration in person at the marriage registration office. The divorce agreement shall state the intention of both parties to divorce voluntarily and the consensus opinions on matters such as child support, property and debt settlement. "

article 1080 of the Civil Code states: "The marriage is dissolved when the divorce is registered or the divorce judgment or mediation agreement becomes effective. "

article 20 of the Interpretation (II) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates: "If one of the spouses claims to register a divorce is a false expression of intent by both parties, and the people's court will not support the request to confirm that the divorce is invalid. If the husband and wife have evidence to prove that both parties have a false intention to divorce, and request to confirm that the relevant property disposal clause is invalid on the issue of property division, the people's court will not support it; except where one of the husband and wife has evidence to prove that there is fraud, coercion, etc. "

3. core points

1. The law does not recognize "false divorce" the establishment and dissolution of marriage shall be subject to registration. Both parties sign for divorce registration at the Civil Affairs Bureau, which produces the legal effect of dissolution of marriage, and there is no "fake" statement.

2. The agreement on the division of property is generally valid. The agreement on real estate, deposits and debts in the divorce agreement should be observed by both parties as long as there is no fraud or coercion. Even if it turns out to be a "fake divorce" in order to buy a house, the court usually does not support overturning it. According to the Yinzhou Court's public case (reported by Zhejiang Legal News 2022-02-16), the divorce agreement stipulates that the property donated to the children cannot be revoked at will, and the binding force of the written property agreement can be seen.

3. The risk of "making a fake come true" is extremely high. It is not uncommon for one party to refuse to remarry, transfer property and marry others after a "false divorce. Feelings and trust often fail to stand the test in the face of interests.

Other legal risks may be involved false divorce and purchase of houses in order to circumvent purchase restrictions and loan restrictions may be identified as fraudulent loans, violations of real estate control policies, and even affect credit investigation and subsequent transactions.

4. boundary conditions

  • if there was fraud or coercion at the time of the conclusion of the divorce agreement, the injured party may request revocation within one year from the date on which he knew or should have known the cause of the revocation.
  • If, after divorce, the other party is found to be hiding or transferring the joint property of the husband and wife, he may sue for re-division.
  • After the "fake divorce" remarriage, the property divided in the original divorce agreement belongs to the personal property before marriage and is no longer automatically restored to the joint property of the husband and wife.

5. operational steps

  1. recognize the legal consequences: fully understand the legal risks of "false divorce" that cannot be reversed and the property division agreement is valid.
  2. Refuse to circumvent policies through divorce: comply with real estate control policies such as purchase restrictions and loan restrictions.
  3. If it has been handled, keep evidence: keep chat records, audio recordings, draft agreements, etc., in case of fraud and coercion.
  4. Consult a lawyer in time: when it is found that the other party has changed, take legal measures to protect the property rights and interests as soon as possible.
  5. If necessary, sue for rights: if there is hidden property or fraudulent coercion, rights can be claimed through litigation.

6. common mistakes

myth 1: False divorce can be remarried casually and property can be restored. The remarriage is the establishment of a new marriage relationship, and the property divided by the original divorce agreement belongs to the premarital property and will not be automatically restored to the common.

Myth 2: As long as it can be proved that the divorce is false, the court will revoke the division of property. The judicial interpretation clearly stipulates that the court will not support the request to confirm the invalidity of the divorce or the invalidity of the property disposal clause on the grounds of false intention.

Myth 3: The relationship between the two sides is good and there will be no disputes. In reality, a large number of "fake divorces" have evolved into real separations due to house price fluctuations, emotional changes and conflicts of interest.

Summary of 7. relevant laws and regulations

the main legal provisions covered in this paper include:

  • article 1080 of the Civil Code
  • article 20 of the (II) of Interpretation on the Application of the Marriage and Family Part of the the People's Republic of China Civil Code
  • article 1076 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 so-called false divorce, the law has never been a real divorce. As long as the divorce registration is completed, or the judgment or mediation takes effect, the marriage relationship will really be dissolved. The agreement between you to "leave first and then recover" is not binding on the marriage relationship itself. Therefore, the biggest risk lies not in the policy, but in the hearts of the people-if the house is bought and the other party refuses to remarry, the agreement in your hand will neither save the marriage, nor may it make it difficult to overturn the completed division of property. Think through this premise before making any decisions.

If you have reached this point, the most important thing is not to repent, but to look back at how the original property was arranged: whether the transfer, agreement, and payment transactions left traces, and whether it can be proved that it was only a temporary arrangement. Such claims are difficult to prove in practice, and the risk of being found to have been divided is not small. Instead of making up for it afterwards, it is better to think clearly in advance: for the sake of a little qualification to buy a house, to register all the real estate in one party's name and to dissolve the marriage relationship, is the price worth it, and can the elderly and children in the family bear such changes.

In addition to the failure of remarriage, there are several layers of risks: one party loses control of the family property behind the net, and it is extremely difficult to get it back; During the cooling-off period, the other party reneges and refuses to cooperate, and the procedure is stuck. After the plan fails, the consequences of purchase restrictions, loans and taxes will still have to be borne by themselves. In fact, there is still a more stable way to avoid the purchase restriction. First, calculate the family assets and policy space clearly before deciding whether to move the marriage relationship. Divorce is the most expensive way to exchange for the qualification to buy a house. Don't use it if you can.