Insights

How to divide the divorce after Ningbo real estate is named

Ningbo Author：LuXu WANG

Three Common Patterns of 1. Property Giving and Name-adding

in practice, there are three main modes of giving and adding names of real estate between husband and wife. The first is that one party buys a house in full before marriage and agrees to add a name or transfer the ownership to the other party after marriage. The second is a pre-marital loan to buy a house, after marriage agreed to change the property to common or all to the other party. The third is that during the marriage, one party buys a house with personal property and agrees to register it in the name of the other party or in the name of both parties. The common feature of the three models is that the property was originally the personal property of one party and transferred all or part of the property to the other party by agreement.

It is important to note that the "agreement" here must be in writing. According to article 1065 of the Civil Code, a man and a woman may agree that the property acquired during the marriage and the pre-marital property shall be owned separately, jointly or partly separately or partly jointly. The agreement shall be in writing. However, if there is only an oral agreement without registering the change of property rights, it is difficult to obtain court support in the event of divorce.

The Core Rule of Article 5 of the (II) of 2. Judicial Interpretation

article 5 of the Interpretation (II) of the Supreme People's Court on the Application of the Marriage and Family Part of the the People's Republic of China Civil Code, which came into effect on February 1, 2025, clearly stipulates the issue of real estate between husband and wife. The core idea of this provision is to respect both the autonomy of the parties and the principles of marriage ethics and fairness.

This provision distinguishes between two basic situations. The first is that the property right change has been registered. In principle, the property is divided according to the joint property of the husband and wife at the time of divorce. However, the court may comprehensively consider the duration of the marriage relationship, the common living conditions, whether to have children, divorce fault and other factors, and decide that the house belongs to one party and gives the other party corresponding compensation. The second is that if the change of property rights has not been registered, the giving party may claim to revoke the gift, and the provisions of Article 658 of the Civil Code on the right to revoke the gift shall apply.

The major change in this provision is that article 32 of the previous judicial interpretation (I) only provided for the cancellation of gifts before the change registration, but there was no detailed standard for the division rules after the change registration. Article 5 of the (II) judicial interpretation fills this gap and provides a clearer discretion for judges.

The division principle of the 3. has changed the registration of real estate.

After the property has been added or registered, it is not simply 50% each when the divorce is divided. The court will consider the following factors to determine the split ratio.

First, the duration of the marriage. In a short-term marriage, one party gives a large amount of real estate to the other party, which may lead to a significant inequity if strictly divided according to the common property. The court may appropriately favor the donor, but it will not completely deprive the recipient of the interest.

Second, living together. Including whether the actual co-living, the number of years of common life, the degree of family contribution. If the recipient has more family obligations in the marriage, the court will tend to protect its interests.

Third, whether to have children. When a family with children divides the property, the court will give priority to the housing needs of the party raising the child.

Fourth, divorce is wrong. If the grantee is at significant fault (e. g., infidelity, domestic violence), the court may appropriately reduce its split share.

In the judicial practice in Ningbo area, for cases where the name is added after marriage but the marriage lasts for a short period of time, the court usually decides that the property belongs to the original owner, and the original owner gives the recipient a certain compensation. The amount of compensation is determined by taking into account the present value of the property, the value added, the duration of the marriage and other factors.

4. on the Right of Revocation of Unchanged Registered Property

if the two parties have signed a real estate gift or name addition agreement, but have not yet registered the change of property rights, can the donor repent? According to Article 5 of the (II) of Judicial Interpretation and Article 658 of the Civil Code, the donor can revoke the gift before the transfer of the right to the gift of property. This means that, as long as the property has not been completed transfer or name registration, the donor in principle has the right to withdraw at will.

However, there are important exceptions to this right of avoidance. According to the second paragraph of Article 658 of the Civil Code, the provisions of the preceding paragraph shall not apply to notarized gift contracts or gift contracts with the nature of public welfare and moral obligations such as disaster relief, poverty alleviation and assistance to the disabled that cannot be revoked according to law. In other words, if the property gift agreement has been notarized, the donor cannot revoke it at will.

The common problem in practice is that the two parties signed a prenuptial agreement to add the name of the property before the marriage registration, but they have not registered the change after the marriage. At this time, if the divorce, the donor claims to cancel the gift, the court generally supports. However, if the grantee can prove that there are other consideration arrangements between the parties (e. g., the grantee paid part of the purchase price, assumed the cost of renovation, etc.), the court may find that the agreement does not constitute a pure gift, but a conditional property arrangement, and thus does not support revocation.

Special Treatment of 5. Notarized Gift

A notarized real estate gift agreement has special effect. According to article 658 of the Civil Code, a notarized gift contract does not apply to the right of arbitrary avoidance. This means that even if the property has not yet been registered for change, the donor cannot unilaterally revoke the gift agreement as long as it has been notarized.

However, it should be noted that notarized gifts are not absolutely unchangeable. In the following cases, the donor may still obtain relief: first, the recipient seriously infringes the legitimate rights and interests of the donor or his close relatives. These circumstances are statutory revocation rights and need to be exercised within one year from the date on which the cause of revocation is known or should have been known.

In the judicial practice in Ningbo area, the court usually requires both parties to perform the agreement for the notarized real estate gift agreement. If the donor refuses to cooperate with the registration of the change, the recipient may bring a lawsuit to the court for compulsory performance.

6. case proof

according to the judgment on property disputes after the divorce between Xu and Chen Mou of Ningbo Zhenhai Court, the real estate registered in the names of both parties shall be owned by the plaintiff after the divorce, and the plaintiff shall pay the defendant a discount of 744362.67 yuan-the real estate registered as common property is not divided equally simply, and the court shall deal with it in the form of discount compensation according to the source of capital contribution, contribution to common life and other factors, it is consistent with the logic of Article 5 of the (II) of the judicial interpretation, "appropriate tilt for comprehensive consideration of factors such as the duration of marriage.

According to the judgment on property disputes after the divorce of Wang Moumou and Zheng Moumou in Ningbo Court, some of the houses of both parties were identified as common property. The court ruled that the houses registered in the defendant's name belonged to the plaintiff, and the plaintiff paid the compensation of 328500 yuan-when the property right registration was inconsistent with the actual ownership, the court determined the scope of common property and made compensation arrangements based on evidence.

According to the judgment on property disputes after the divorce between Chen Moumou and Xiang Moumou of Ningbo Ninghai Court ((2011) Yong Ning Min Chu Zi No. 1335), the undivided house at the time of divorce was auctioned off. The court ruled that the plaintiff received 235000 yuan and the defendant received 285000 yuan according to the confirmed share-if the additional name or shared property was not completed at the time of divorce, it can still be divided in another case, prompting the parties to claim rights in time.

7. Risk Alert

first, only oral agreement is extremely risky. Many couples verbally agree to add the name of the property in their daily lives, but neither sign a written agreement nor register the change. Once divorced, such an agreement can hardly be upheld by the courts.

Second, the vague expression of the agreement is prone to controversy. Some written agreements only say "the house has half of the other party", but it is not clear whether it is shared or shared, nor does it agree on a specific share ratio. It is suggested that the share of property rights and the time of registration of changes should be specified in the agreement.

Third, the risk of the donor's reneging. The donor may revoke the gift at any time before the change is registered. If the grantee expects to obtain a share of the property, it shall urge the registration of the change as soon as possible.

Fourth, the tax cost of adding names. Property plus name involves deed tax, stamp duty and other expenses, divorce division may also involve personal income tax. Tax costs should be fully assessed before deciding on a name addition.

8. FAQ

question 1: After marriage and divorce, must the property be divided into half?

Not necessarily. Although the property after the addition of the name belongs to the joint property of the husband and wife, but the court will consider the duration of the marriage, capital contribution, fault factors, etc. to determine the proportion of division, not necessarily equal. For property converted from pre-marital property in a short-term marriage, the court may be appropriate in favor of the original owner.

Question 2: Can the other party go back on its word after signing the name addition agreement but not transfer the ownership?

In principle it can. According to Article 5 of the (II) Judicial Interpretation, the donor has the right of arbitrary revocation before the change is registered. However, if the agreement is notarized, it cannot be revoked at will. It is recommended that the recipient supervise the registration of changes as soon as possible to fix the rights.

Question 3: Promise to add your name before marriage but never after marriage. Can you claim compensation when you divorce?

generally cannot. If there is only an oral commitment or an unnotarized written agreement, and the change is not registered, the donor may revoke the gift and it is difficult for the recipient to claim compensation. However, if the grantee can prove that it has paid the consideration based on the commitment (e. g., assumed the cost of renovation, repaid the loan, etc.), it may claim the corresponding claim separately.

Question 4: Do I have to pay taxes on the division of the property after the name is added?

The addition of names between husband and wife is usually exempt from deed tax. However, if the divorce division involves the transfer of property to one party, deed tax and stamp duty may be required. Consult local tax authorities and professional lawyers for specific tax treatment recommendations.

Practical Experience of 9. Lawyers

the name addition of personal real estate before marriage is the most likely type of arrangement to cause repentance, because the two things of "agreement" and "registration" are often separated. What the parties say in their mouths is to add a name. The law involves the transfer of property rights to the other party. The meaning must be fixed by written agreement. It is difficult to obtain support when divorce is really based on verbal promises and delays in registration. Therefore, the first step is to put the agreement on paper and write down whether it is common or shared and how much each share is. The second step is to register the change of property rights as soon as possible. Once the registration is completed, the legal status will be clear and stable, and the space for disputes will be narrowed.

If you cannot register for the time being, you must be prepared for the state of "no transfer of ownership. Under the new regulations in 2025, the transfer of real estate agreed between husband and wife will no longer simply apply the cancellation rules of ordinary gifts. If the change registration is not handled, the court will comprehensively judge the ownership and compensation in divorce proceedings based on factors such as the duration of the marriage relationship, common living conditions, children, faults, contributions of both parties and the market price of the house. The giver cannot of course go back on his word. This means that the argument that "you have not transferred the ownership" is becoming more and more untenable, but it also means that the result has a comprehensive measurement component. Therefore, it is important to keep the factual evidence of living together, paying together, sharing household expenses, and investing in home maintenance, which will have a direct impact on the ultimate tendency to divide.

There are several details of the operation that are worth noting. When it comes to the agreement of adding real estate names, notarization can enhance the power of proof and binding force. If the name is added with the loan, it is also necessary to think clearly in advance who will bear the monthly payment and how to deal with the interruption of the payment. Don't just care about the property rights but leave hidden debts. When negotiating, you can design the name-adding arrangement together with the overall divorce plan, and use the concession of the share of property rights to exchange the conditions that are more important to you, such as support, payment rhythm or debt commitment. Finally, a reminder: if the marriage lasts for a short time, the possibility of being adjusted in the future is relatively greater. Before making a move, you should think clearly whether this is an expression of feelings or a property arrangement, and don't let the impulse get long-term trouble.