Can a divorce agreement signed in Ningbo be revoked?

After signing the divorce agreement and receiving the certificate, can it be revoked if you feel that you have suffered a loss and want to go back on your word? The conclusion first says: after the completion of the divorce registration, the dissolution of the marriage relationship cannot be reversed; the property division clause is legally binding on both parties in principle, and only when there are legal circumstances such as fraud and coercion at the time of conclusion, can you sue for revocation within one year after the divorce, and must be verified with evidence. Based on the Civil Code and related judicial interpretations, this paper clarifies the rule boundaries, deadlines and actions of "the agreement has been signed and can we go back on our word.

1. first distinguish: repentance "divorce" and repentance "property" are two different things.

Article 1076 of the Civil Code requires that a divorce by agreement shall be agreed upon and a written divorce agreement shall be signed on matters such as voluntary divorce, child support, property and debt settlement; Article 1080 provides for the dissolution of the marriage upon completion of the registration of the divorce. Once the identity relationship is dissolved by registration, there is no channel of "going back on one's word and not divorcing"-it is legally untenable to claim that the marriage still exists after receiving the divorce certificate. Article 2 of the (II) on the Interpretation of Marriage and Family also makes it clear that the people's court will not support the request to confirm the divorce is invalid on the grounds that both parties have expressed false intentions.

The property level is different. Paragraph 2 of Article 69 of the Interpretation (I) 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: The provisions on property and debt handling in the divorce agreement signed by the parties in accordance with Article 1076 of the Civil Code are legally binding on both men and women; Article 70: If the husband and wife renege on the division of property after divorce and request the cancellation of the property division agreement, the people's court shall accept it, however, if no fraud or coercion is found in the conclusion of the property division agreement after the trial, it shall be rejected in accordance with the law. The rules can be summarized as follows: the agreement is first performed according to the contract, and the estoppel must prove fraud and coercion, and is limited by a one-year period-"the signing will take effect, and the estoppel depends on the evidence". Another note: before the divorce is registered, if the agreement reached between the two parties on the division of property has not been registered for divorce, and one party goes back on his word, the first paragraph of Article 69 of the (I) of interpretation shall not take effect, and the court shall divide the agreement according to the actual situation according to law-that is, the effect of "before obtaining the certificate" and "after obtaining the certificate" is completely different.

The Legal Consequences of 2. Three Cases of Repentance

case 1: Asking for re-scoring on the grounds that "I didn't think clearly at that time and suffered losses. Only on the grounds of manifest unfairness and emotional impulse, the court generally does not support-the agreement is the product of the rational judgment of adults, after the feeling that it is not cost-effective does not constitute a cause of revocation.

Case 2: If there is evidence of fraud or coercion, the lawsuit shall be withdrawn within one year after the divorce. If the other party conceals large amounts of property, forces the signing by threat of violence, or makes up debts to depress its share, the court will revoke the relevant provisions and re-divide them in accordance with the law after verification. The one-year period shall be counted from the date of divorce registration and shall be a period of exclusion and shall not be suspended, interrupted or extended.

Case 3: The divorce agreement stipulates that the common property will be given to the children and then repents. According to Article 20 of the (II) of Interpretation of Marriage and Family, the divorce agreement stipulates that part or all of the joint property of husband and wife shall be given to their children. If one party requests to cancel the agreement before the transfer of property rights after divorce, the people's court will not support it, except where the other party agrees-"the promise to the child" is more difficult to go back on his word than "the promise to the other party"; If one party has evidence to prove fraud or coercion the agreement, A request for revocation may still be made; if the child claims a right to the property expressly agreed upon, he may claim continued performance or compensation from the breaching party by reference to article 522, paragraph 2, of the Civil Code.

3. discovers that the other party is concealing property: an alternative path without a one-year limit.

If the reason for repentance is that "the other party has concealed the common property", it takes another path: according to Article 1092 of the Civil Code, one of the spouses hides, transfers, sells, destroys, or squanders the common property of the husband and wife, or forges the joint debt of the husband and wife. If the other party discovers the above-mentioned behavior after the divorce, it can file a lawsuit in the people's court, request for re-division of the common property of the husband and wife-the claim for re-division is not limited by the period of revocation "one year after divorce", but is subject to the statute of limitations (article 188 of the Civil Code, generally three years, from the date of knowledge or should have been known), and shall be claimed in time after discovery. The core of the proof is that "the property not covered by the agreement does exist and is common property", such as deposits, financial management, equity, hidden real estate, etc. in the name of the other party, can be obtained by applying for an investigation order to obtain fixed evidence of bank flow and real estate registration information.

4. reverse reminder: creditors may also come to "repentance"

the property arrangement of the divorce agreement not only binds the husband and wife, but may also be challenged by external creditors. Article 3 of the Interpretation (II) for Marriage and Family: If the creditor of one spouse has evidence to prove that the property division clause in the divorce agreement affects the realization of his creditor's rights and requests to revoke the relevant clause with reference to the provisions of Articles 538 and 539 of the Civil Code (creditor's right of revocation), the people's court shall comprehensively consider factors such as the overall division and performance of the couple's common property, the burden of child support, divorce fault, etc, support in accordance with the law-in order to evade debt and "clean out" type of divorce, creditors can sue to cancel the property clause. This shows from the opposite side: the division of the divorce agreement to leave room, in line with common sense, excessive tilt but buried mines.

5. people who want to go back on their word: evidence and action checklist

1. check period: whether within one year after the divorce registration-decide whether to take the cancellation path;
2. fixed evidence of fraud: clues to the other party's concealment of property, chat records of false statements, and comparison of property flows before and after concealment;
3. fixed evidence of coercion: audio and video recordings at the time of conclusion, threatening chat records, alarm records, witness testimony;
4. prosecution materials: divorce certificate, divorce agreement, the above evidence, identity certificate, to the defendant's domicile of the grass-roots court;
5. if only concealed property is found: the litigation materials to be divided again shall be claimed according to Article 1092, and the three-year statute of limitations shall be paid attention.

How to fight the lawsuit of 6. withdrawal: the focus of the trial and the main points of proof.

When requesting to revoke the property clause of the divorce agreement, the court's review path is usually "three steps": the first step is to check the validity of the agreement-whether the agreement is truly signed and whether it violates the mandatory provisions of the law, and first confirm the binding basis of the property clause; The second step is to check the cause of cancellation-whether there is fraud (concealment of property, fictitious debt, misrepresentation of asset status) or coercion (violence, threat, this is the core of the entity that can be established for revocation. The third step is to check whether the lawsuit is directly rejected within one year after the divorce. The burden of proof is on the party advocating revocation, and the evidence should form a closed loop of "meaning is not free", rather than staying at the subjective level of "I feel at a loss.

Three types of evidence are the most useful: first, fraud evidence-the other party conceals the flow of clues of property, the record of sudden transfer of property before divorce, and the chat and recording of false statements in negotiations; The second is coercive evidence-threatening communication, alarm record, injury record, audio and video recording of the scene; Third, time evidence-the comparison between the registration date of the divorce certificate and the date of prosecution proves that it has not exceeded one year. If the cancellation lawsuit is lost, it is not the end of the mountain: if the other party is found to conceal the property, another lawsuit for division under article 1092 can be filed; If the child support fee is significantly low, the child may claim separately in his own name; If the gift of property to the child is unilaterally regretted, the performance may be continued in accordance with Article 20 of the (II) of Interpretation. Don't waste the mediation stage: in the mediation organized by the court, it is often more cost-effective to use the withdrawal of the lawsuit as a bargaining chip in exchange for the opportunity to recover hidden property clues and negotiate compensation from the other party.

Another reminder: revocation of the property clause does not mean "re-dividing all property". After revocation by the court, only the part affected by fraud and coercion will be re-processed. The remaining clauses are still valid-before prosecution, one should think clearly about "which articles to overturn" and write the scope into the litigation request to avoid being rejected as a whole.

Differences in the effectiveness of 7. mediation, notarization agreements and registration documents.

The same is a "divorce agreement", the carrier is different, the room for repentance is very different. First, the property division agreement reached through court mediation in the litigation is confirmed in the form of a mediation document-the mediation document is enforceable after it is delivered and takes effect. If one party goes back on his word, he cannot sue for cancellation according to Article 70 of the interpretation (I), but can only go through the retrial procedure and the threshold is extremely high. The mediation document is basically "final". Second, the notarized divorce property division agreement-notarization strengthens the proof of the authenticity of the meaning, after the event, it is more difficult to prove fraud and coercion, but it is not absolutely irrevocable, and it is still necessary to prove the legal reasons within one year; third, the divorce agreement filed with the marriage registration authority-the registration authority archives, the parties can hold the ID card Application for retrieval and copying, as the basis for evidence and performance in the lawsuit; Fourth, the property agreement signed within the marriage (not divorced)-not bound to divorce, divorce still depends on whether it is replaced by a subsequent divorce agreement. To understand the logic of "the carrier decides the difficulty of repentance", one must think clearly when signing a contract: if one wants to leave room for one's repentance, one must choose an ordinary agreement; If you want to make a complete end, choose a mediation statement or notarization-you cannot have both fish and bear's paw.

8. FAQ

can I go back on my word and not divorce after getting a divorce certificate?

Can't. After the divorce registration is completed, the dissolution of the identity relationship is irrevocable; Article 2 of the (II) on the Interpretation of Marriage and Family also explicitly requests to confirm that divorce is invalid on the grounds of false expression of meaning will not be supported.

Can the division of property be unjust?

Merely "unfairness" is not acceptable, it must be proved that there was fraud or coercion in the conclusion of the agreement and prosecution within one year after the divorce (article 70 of the (I) of interpretation); if there is insufficient evidence, the court rejects it.

How long is the deadline for repentance?

The request for revocation of the property division clause should be made within one year after the divorce, which is a period of exclusion; if the other party is found to have concealed the property and requested a second division, it is not subject to the one-year limit, but is subject to the three-year statute of limitations.

When signing an agreement, I was coerced. How can I leave evidence?

Keep the audio and video recordings before and after the conclusion, threatening chat records, alarm records and receipts, witness testimony and other materials that can prove that the intention is not free, and the sooner it is fixed, the better.

The agreement agreed to give the house to the child, can you go back on your word?

generally cannot. According to Article 20 of the (II) of Interpretation, the court will not support a unilateral request to revoke the agreement of "giving property to children" after divorce (except with the consent of the other party); Unless it can be proved that there was fraud or coercion at the time of the conclusion.

Practical Experience of 9. Lawyers

if you want to go back on your word, you must first distinguish which one you went back on. After receiving the divorce certificate, there is no turning back to the dissolution of the marriage relationship. Afterwards, the claim that "actually don't want to leave" cannot stand in law; what can be talked about is the part of the property. The property division clause is binding on both parties in principle. Only when there are legal circumstances such as fraud and coercion at the time of the original conclusion can the lawsuit be revoked within one year after the divorce. Moreover, these circumstances should be confirmed with evidence. It is usually not enough to say "I was forced" and "I suffered a loss.

From the experience of handling cases, almost all the remorse that can really turn the table is won by the evidence and the deadline. The so-called fraud and coercion should be supported by corresponding materials-the communication records at that time, the witness situation, and the objective traces that can reflect involuntary, rather than the subjective statements afterwards. The deadline is also very tight, and it is difficult to get support if it is delayed within one year from the date of divorce registration. Therefore, once the idea of repentance is moved, the first thing is to check the time and evidence, instead of going to the other party's theory first.

A more practical experience is that instead of making up for it afterwards, it is better to put the ugly words first when signing. Before signing, read one by one and think clearly how you can use each item when the other party fails to perform it. For obviously unfair plans, it is better not to sign them on the spot and talk about them separately than to take the chance of "signing first and then overturning the case. Once the agreement comes into effect, the cost of overturning it is much higher than that of spending half an hour more to talk about it clearly. This account must be calculated clearly before writing, and don't bet your hope on the remedy afterwards.

The winner or loser of the divorce agreement is "within one year + evidence of fraud and coercion": the identity relationship is irreversible, the property clause is first fulfilled according to the contract, and full evidence of fraud and coercion must be provided within one year after the divorce if the other party is found to have concealed his property, and there is no one-year limit for the second division of the lawsuit under article 1092. Before signing the contract, it is much more labor-saving to list the property, debt, support and check the other party's declaration one by one, which is much more labor-saving than to remedy afterwards. Withdrawal during the cooling-off period is the only "free window for repentance" after signing the contract, and major concessions should be considered twice.