Is Ningbo False Divorce Legal Recognition of Buying a House
In order to avoid the purchase restriction or the first set of mortgage concessions, "fake divorce" to buy a house and then remarry, the law really exist "fake divorce"? Conclusion first: does not exist. Once the divorce registration is completed, it will have legal effect, and there is no distinction between true and false for the dissolution of the identity relationship; the clause on the division of property in the divorce agreement is legally binding on both parties, and it is basically unsalable on the grounds that it was a false divorce at that time. This paper combines the Civil Code and related judicial interpretations to clarify the triple risks of false divorce in terms of identity, property and debt.
1. there is no "fake divorce" in the law"
article 1080 of the Civil Code: The marriage is dissolved upon the completion of the divorce registration or the entry into force of the divorce judgment or the mediation document. Article 1076 requires that a written divorce agreement shall be signed for divorce, which shall state the intention of both parties to divorce voluntarily and their consensus on matters such as child support, property and debt handling, and apply for divorce registration in person at the marriage registration authority. Article 1077 also sets a 30-day divorce cooling-off period-if either party is unwilling to divorce within 30 days after the application, it may withdraw the divorce registration application to the marriage registration authority. Marriage registration is the confirmation of the change of identity relationship by the administrative organ, and the law does not examine the "authenticity" of the parties' divorce motive-as long as both parties voluntarily and personally apply for and complete the registration, the marriage relationship will be dissolved. Article 2 of the (II) on the Interpretation of Marriage and Family further seals off the "channel of estoppel": after the husband and wife register for divorce, if one party requests to confirm that the divorce is invalid on the grounds that both parties have expressed false intentions, the people's court will not support it. In other words, even if the two parties had verbally agreed to "remarry after completion", or even wrote a private agreement, the completed divorce registration cannot be invalidated-the dissolution of the identity relationship is irreversible.
2. property: The divorce agreement is binding on both parties.
Article 1076 of the Civil Code requires that agreed divorce should reach a written agreement on voluntary divorce, child support, property and debt handling; Article 69, paragraph 2, of the (I) of the Supreme people's Court on the interpretation of the Marriage and Family Code of the the People's Republic of China Civil Code clearly states that 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. Three points of practice: case 1, if the house is divorced by agreement and the house is owned by one party, and the other party buys the house in the name of single, whether the house is remarried or not will not affect the ownership of the divided property-the house has been owned by the other party according to the agreement, which is the personal property of the other party; Case 2: If one party refuses to remarry afterwards and the other party claims "divorce is invalid", the court will not support it (Article 2 of the (II) interpretation); Case 3, during the false divorce, if one party disposes of property or even remarries, the original spouse is difficult to recover, and can only claim liability for breach of contract or seek other relief according to the divorce agreement. If you want to revoke the property clause by "fraud", you must prove that there was fraud and coercion at the time of the conclusion of the agreement, and you must sue within one year after the divorce (article
70of the (I)), which is a high threshold.
3. remarriage does not automatically return property to common
A common misconception is that "when you remarry, the property you split up before becomes common property". Positive solution: the property that has been divided to one party at the time of divorce belongs to the personal property of that party, and the remarriage will not automatically return it to the common property of the husband and wife-the remarriage produces a new marriage relationship, and the previously divided property is still treated as "personal property"; The ownership of newly purchased property after remarriage depends on registration and capital contribution. In the case of remarriage for the purpose of repurchasing a house, the property right of the new house is registered in whose name and whose premarital/personal property the funds come from, and the ownership is directly determined-if you want it to become common property, a separate written agreement or joint registration is required. In the same way, if the real estate purchased by one party as a single person during the false divorce is registered in his name and the loan is repaid by him personally, it will still be his personal property after the remarriage, unless otherwise agreed in writing by both parties.
New Debt and Dependency Risk during 4. False Divorce
risk 1: Debt mixing. After divorce, one party borrows money in his own name. According to Article 1064 of the Civil Code, if a large loan exceeds the daily needs of the family, the creditor must prove that it is used for the couple's common life, joint production and operation or based on a common intention, otherwise it does not constitute a common debt-but if the loan is actually used for joint purchase or family expenses after remarriage, it may still be recognized as a common debt, and the distribution of burden of proof directly determines who pays the debt. Risk two: dependency arrangements. False divorce often agrees that the children will be brought up by one party and the other party will "leave the house". Once the remarriage fails, disputes over alimony and visitation rights will follow, and the original agreement will be difficult to overturn. If the child support agreement harms the interests of the children, the children can still claim it according to law. Risk 3: Purchase eligibility and loan records. As a "single" to obtain the purchase qualification, the first set of interest rate concessions, after the remarriage does not automatically "translation.
5. Deduction Case (example, fictional)
A couple in Ningbo went through an agreement to divorce in order to buy a second suite. They agreed that the common property would belong to the woman after marriage. The man bought a new house with a loan in the name of single and registered it in his own name. After buying the house, the two parties remarried, and one year later their feelings broke down and divorced again. The man claimed that it was a fake divorce, the new house should be a common property, and the original house should be re-divided. According to the current rules, the registration of divorce is valid, and the original house belongs to the woman according to the agreement; the new house is purchased in the man's personal name and registered in his name after divorce, and the remarriage does not change its ownership, and it is difficult to identify it as common property without evidence of joint contribution. If the woman claims that "the divorce agreement was signed by fraud", she must also provide evidence and sue within one year after the divorce, and the overdue rights are extinguished. The deduction shows that every step of the false divorce has real legal consequences, and the "verbal tacit understanding" after the fact is basically invalid before the law.
Analysis of Common Misunderstandings in 6.
Myth 1: If you go through a fake procedure, the law will never leave. Positive solution: registration will take effect, and there is no truth or falsehood in the identity relationship; Article 2 of the (II) of Interpretation clearly states that "false meaning" cannot overturn divorce registration. Myth 2: remarried, the property will automatically come back. Positive solution: the divided property is personal property, remarriage does not automatically return to the common, need to be separately agreed in writing. Myth 3: The house bought during the fake divorce is the result of "common struggle. Positive solution: Look at the registration and capital contribution, registered in the name of a single party and no joint contribution, usually belongs to the registration party. Myth 4: The other party can sue him for "breach of contract" if he does not remarry ". Positive solution: oral remarriage agreement is difficult to enforce, the law does not protect the "false divorce" arrangement for the purpose of circumventing the policy. Myth 5: Write property terms casually for fake divorce, and you will remarry anyway. Positive solution: once the remarriage fails, the property clause will take effect immediately and regret it.
Stop Loss and Remedy List after 7. Has "False Divorce"
if a "fake divorce" has already occurred, stop loss is more important than remorse. The remedial actions that can be operated are as follows: first, fixed remarriage and property arrangement in writing-if both parties still wish to remarry, sign a written agreement before remarriage to specify which property will be jointly owned and which will maintain personal attributes after remarriage, so as to avoid holding different opinions when divorcing again after remarriage; Second, check the loopholes in the divorce agreement-unhandled property and debts in the agreement, as soon as possible to make it clear by supplementary agreement; If the other party is found to conceal property, it shall be claimed to be divided again in time after knowing it in accordance with Article 1092 of the Civil Code. Third, segregate the new debts during the "fake divorce"-if the party raises debts unilaterally after the divorce, keep the evidence "not used for common life and non-common expression" to avoid recourse after remarriage. Fourth, handling of children and upbringing arrangements-writing and actually implementing the arrangements for upbringing, visitation and alimony to prevent the problem of children from getting out of control after remarriage fails; Fifth, evaluate the qualification and credit records of house purchase-the records left by house purchase and loan as "single" exist objectively, and the verification problems related to application materials should be handled in time without leaving hidden dangers.
If the other party refuses to remarry, the path of "turnover" is very limited: divorce cannot be claimed to be invalid (Article 2 of the (II) of interpretation); In order to revoke the property clause, fraud, coercion and prosecution within one year after divorce must be proved. However, fraud is claimed on the grounds of "remarriage was agreed at the beginning", which is rarely supported in practice-the promise of remarriage is a status agreement, and the court generally does not make fraud determination. The rational stop-loss direction is to complete the transfer of property and the liquidation of creditor's rights as soon as possible according to the divorce agreement, and to focus on the arrangement of new life and children, rather than entangling "whether we can be without leaving".
8. Cooling-off Period: Last Brake Before Registration and Correct Usage
the 30-day divorce cooling-off period set by Article 1077 of the Civil Code is essentially a brake on the impulse of "false divorce": within 30 days after applying for divorce registration, if either party is unwilling to divorce, it can withdraw the divorce registration application to the marriage registration authority; Within 30 days after the cooling-off period expires, both parties shall apply to the marriage registration authority in person to issue a divorce certificate. For the parties who "fake divorce for buying a house", the cooling-off period is a window for re-examination-withdrawal is free and unconditional. Once the certificate is issued, the identity and property arrangement will take effect immediately and there will be no turning back. Correct usage: First, do not submit an application during the impulse period-first negotiate the property and upbringing arrangements before going through the procedure; Second, after applying for a cooling-off period carefully-deduce every step of the "fake divorce" plan (property ownership, debts, remarriage conditions, children) and withdraw the risks immediately when found; Third, withdrawal does not lose face or leave record effects-withdrawal is a right conferred by law without any reason. It is much more cost-effective to use the cooling-off period as a free window for "regret medicine" than to spend another year after receiving the certificate to cancel the lawsuit.
9. FAQ
false divorce to buy a house, the law recognizes "false?
Not admitted. The marriage relationship will be dissolved upon completion of divorce registration. Article 2 of the Interpretation (II) clearly states that the request for confirmation of divorce is invalid with "false meaning" will not be supported, and there is no distinction between true and false identity relationships.
In order to buy a house divorced, the other party does not remarry how to do?
The divorce registration is valid, and the claim of "false divorce" cannot be invalid; the property is executed according to the divorce agreement, which is difficult to overturn. The remarriage depends on the will of the other party and cannot be enforced by law.
Who owns the house bought during the fake divorce?
Look at registration and capital contribution: if it is purchased and registered in the name of a single party, it is usually owned by the registered party. The remarriage does not automatically return the property purchased unilaterally to the common property after the divorce.
Can the other party go back on the property distributed to me in the divorce agreement?
After registering a divorce, one cannot simply go back on one's word. Unless it can be proved that there was fraud and coercion in the conclusion of the agreement (Article 70 of the (I) is explained, and the lawsuit is revoked within one year after divorce), it is difficult to obtain support only on the grounds of "suffering losses" and "obviously unfair.
Do I have to pay back the debts owed by the other party during the fake divorce?
Look at the purpose and proof: large loans beyond the daily needs of the family, the creditor must prove that they are used for the husband and wife to live together, jointly produce and operate or based on a common intention, otherwise they do not constitute a common debt.
Practical Experience of 10. Lawyers
in order to avoid the purchase restriction or strive for the first set of preferential treatment and "fake divorce", there is no such thing as "fake" in law-once the divorce registration is completed, the identity relationship is dissolved, and afterwards, on the grounds that "it was for the purpose of buying a house at that time", it is basically impossible to save it. Many people place their hopes on "we privately agreed to remarry when it is done", but this agreement is not binding, remarriage must be voluntary, and no agency can replace it. In other words, choosing this path is tantamount to voluntarily assuming the consequences of the other party's non-remarriage, remarriage during the period, and the property belonging to the other party according to the agreement. These must be fully understood before the decision is made.
In terms of property, the provisions of the divorce agreement on the handling of property and debts are binding on both parties. There are three common chain risks in practice: the house has been returned to one party according to the agreement, and neither remarriage nor remarriage can change this ownership; One party refused to remarry afterwards, claiming that the divorce was invalid and would not be supported. During the false divorce, if one party buys a house alone, redisposes or even remarries, it is difficult for the original spouse to recover, and can only claim liability for breach of contract or seek other relief according to the agreement. If you want to revoke the property clause on the grounds of fraud, the threshold is very high, but also subject to the limitation of the prosecution period, not want to withdraw can be withdrawn.
If you have already taken this step, stop loss should be quick: first find out the property, real estate registration, loan and debt status of both parties, find out the other party has signs of transfer and low-cost disposition, and timely assess whether it can be claimed through creditor cancellation and re-division, and do not delay until the other party has disposed of it. If you plan to use this method again, you must write down the risks and confirm with the other party before registration. If you can negotiate a substantial compensation arrangement, it will fall into writing. At the same time, make good use of the cooling-off period as the final buffer. Once you find that the other party's attitude has changed, you would rather suspend it than crustily skin of head to get the license.
The core risk of false divorce is "true dissolution of identity, property according to agreement": once the identity relationship is terminated by registration, it cannot be restored as before, property is attributed by agreement and registration, and remarriage does not allow the automatic return of divided property. If it is really necessary to adjust the family property arrangement, a written agreement should be made on the purchase of capital contribution, property registration and property ownership after remarriage before divorce. Do not take risks for the purchase qualification-use a real identity relationship to gamble on a purchase discount at a cost far exceeding the interest and taxes saved.