Insights

Ningbo: Can the spouse get the money given to the third party back in full?

Ningbo Author：LuXu WANG

After discovering that the other party has spent hundreds of thousands or even millions of yuan outside, most people's first reaction is "there is half of me". Only when you really walk into the court will you know that half of the litigation requests in such cases are written back, but they often fail to get the results they deserve. Qualitative choice is right, the return range can be all; qualitative go wrong, even the direction of proof will follow the wrong.

Where does the right to equal treatment of 1. common property come from?

Article 1062, paragraph 2, of the Civil Code stipulates that husband and wife have equal rights to dispose of common property. This sentence contains two meanings: one is that either party can deal with it, and the other is that the exercise of the right to deal with it must not harm the rights and interests of the other party. Daily life requires sanctions within the scope, and the other party cannot go back on its word afterwards; major sanctions beyond this scope require the common expression of both parties.

The boundaries of daily family agents.

Article 1060 of the Civil Code establishes the system of daily family agency: a civil legal act performed by one of the spouses due to the daily needs of the family has effect on both spouses. Buying vegetables, paying fees, paying tuition, and daily medical care are typical family needs in daily life. However, the transfer of large sums of money to a third person outside marriage for free has nothing to do with family life, and is neither within the scope of daily family agency, nor is it possible to obtain the implied consent of the other party.

The double flaw of gratuitous disposition

there are two defects in this kind of gift: one is the defect of the right of disposition, one party disposes of the share of the common property belonging to the other party without authorization. The superposition of the two flaws constitutes the basis for the referee's tendency to deny its effectiveness as a whole.

2. why such gifts are found to be null and void.

Determining that half is valid and half is invalid is the most common intuition of the parties, and it is also the place where the gap with the mainstream referee's thinking is the biggest.

Common is not shared by shares.

The joint property of the spouses is common and does not share during the marriage. Since there is no definite share, the disciplinary party cannot claim that "I am punishing my own half". The share is determined only at the point of divorce or when the division is requested in accordance with the law. This property law construction is the technical basis for the full return of the conclusion.

Independent Evaluation Against Public Order and Good Customs

article 8 of the "Civil Code" requires that civil entities must not violate public order and good customs when engaging in civil activities; Article 153, paragraph 2, stipulates that civil legal acts that violate public order and good customs are invalid. Large property payments for the purpose of maintaining improper relationships and divorced from the daily needs of the family are generally denied as a whole as a violation of public order and good customs in referees, rather than being divided according to portions. The legal consequence of invalidity is the return of property, as provided for in article 157 of the Civil Code, to the extent that the return is directed to the full benefit of the recipient.

Exceptions still exist

not all expenses can be recovered in full. Expenditures of a small amount, with the nature of ordinary human relations, or the amount of consideration provided by the recipient, the existence of a real labor or transaction relationship, and the part that can prove that the personal property of the disposing party is used, may not be supported. In addition, claims are also affected if the spouse explicitly ratified afterwards or did not object to long-term knowledge.

3. return the full amount or half

how to write a lawsuit request directly determines how to write a judgment. A clear choice needs to be made here.

Recommended Request Writing

A more secure expression is to request confirmation that a gift of a certain amount of money to the defendant is invalid and order the defendant to return the money to the plaintiff and a party. The combination of "confirmation of invalidity" and "return of property" is proposed, and the object of return is directed to the joint property of the husband and wife as a whole, so as to avoid being regarded as self-recognition of one's own share because it is written as "return half", thus limiting the scope of the judgment.

How to deal with the situation of divorce

if the marriage relationship has been dissolved, the common property has been divided in principle. At this time, there are usually two paths: first, if the sum of money is concealed at the time of division, it can be divided again according to Article 1092 of the Civil Code, and it is claimed that the party who hides or transfers the common property should be divided less or not divided; Second, the third party is still requested to return the money on the grounds that the gift is invalid, and the income is treated as common property. The two paths have different emphases of proof and need to be chosen according to the degree of mastery of the material.

The Basis of 4. Claim and the Choice of the Defendant

the wrong subject and the wrong choice of cause of action are the high-frequency reasons for the dismissal of such cases.

Is the defendant only a third person or a spouse?

The more common practice in practice is to accept the gift of the third person as the defendant, the spouse as a third person or co-defendant. The inclusion of the spouses in the proceedings helps to identify the nature of the payments, avoids them making adverse representations in separate cases and facilitates the direct treatment of the attribution of common property after return. If the spouses expressly cooperate and sue together, both spouses may be co-plaintiffs.

The correspondence between the cause of action and the right of claim.

If the gift is invalid as the core, you can choose to confirm the contract invalid dispute or unjust enrichment dispute; if the common property damage is the core and occurs after divorce, it is more suitable for property disputes after divorce. The cause of the case is different, the jurisdiction of the court and the focus of proof also change, before the prosecution should first set down this step.

5. Forensics Boundaries: What Evidence Can't Be Used

the easiest step in such cases is not the application of the law, but the collection of evidence. Evidence is illegal, not only the evidence is not accepted, but also may lead to another heavy legal responsibility.

Forensics you can use

bank flow and payment of bills in one's own account; News exchanges between oneself and spouse; Images taken in public places in a manner that does not infringe on the privacy of others; Application to the court through litigation to obtain account details, real estate and vehicle registration information under the name of the other party; As well as materials obtained by lawyers after applying for an investigation order in accordance with the law. The legitimacy of the evidence obtained by these paths is guaranteed.

Forensic methods not to be used

installing eavesdropping and secretly photographing equipment without permission; Invading other people's houses to shoot; Login and inquire after obtaining other people's account passwords by illegal means; Tracking, harassing and disclosing other people's private information. Such materials are evidence obtained by seriously infringing upon the legitimate rights and interests of others and violating the prohibitive provisions of the law, and shall not be used as the basis for ascertaining the facts, and the party obtaining the evidence may also face infringement or even more serious liability.

6. Prescription, Jurisdiction and Enforcement Difficulties

three details at the procedural level often affect how much they can get back more than substantive disputes.

The starting of the statute of limitations

the three-year ordinary limitation of action shall apply to the request for return, which shall be calculated from the date on which the right holder knows or should have known that the right has been damaged and the obligor. The key lies in how to determine the point of "knowing": the date of discovery of the transfer record and the date of receipt of the other party's self-identification may become the starting point. The price of delaying the wait-and-see is that the earlier transfers are over-time, so they should be started as soon as they have the clues.

Preparation for the execution phase

if successful, it will be honored, depending on whether the defendant has property in his name that is available for execution. Simultaneous application for property preservation at the time of prosecution is the most direct means of increasing the rate of redemption. If the money is used for the purchase of real estate, vehicles, financial management or has been transferred out again, it shall apply for the transfer of funds at the prosecution stage, and if necessary, the relevant subjects shall be added to avoid the execution of the judgment after it takes effect.

7. case proof

according to similar adjudication rules, if one party successively transfers money to a third party outside marriage, purchases vehicles and pays rent during the marriage relationship, and the spouse sues to confirm that the gift is invalid and returns it, the court usually determines that the punishment exceeds the needs of the family's daily life and violates public order and good customs, and decides to return it in full instead of half. Taking the accumulated transfer of about 800,000 yuan in three years, including 300,000 yuan for car purchase, as an example, after deducting a small amount of money that can prove a real transaction or labor consideration, the amount supporting the return is usually more than 700,000 yuan. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

According to similar adjudication rules, if it is discovered after divorce that there is a large amount of external transfer during the existence of the marriage relationship, and if one party requests a re-division on the grounds of hiding or transferring common property, the court usually examines the time of transfer, the size of the amount and whether to declare it at the time of division. If it is determined to constitute a concealment or transfer, the concealer is ordered to divide the part of the property again, and the common treatment is to compensate the other party an amount equivalent to 60% to 70% of the amount. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

8. Risk Alert

  • the request is written as half of the return: equal to the self-admitted share has been divided, which may directly limit the scope of the return supported by the judgment.
  • Illegal evidence collection: materials obtained by privately installing equipment, invading houses and embezzling accounts are not adopted and may also lead to tort liability.
  • Delayed prosecution: The three-year time limit starts one by one. The longer you wait and see, the higher the proportion of early transfers that are deemed overdue.
  • Missing property form: only focus on cash transfers, ignoring the part transferred out in the form of car purchases, home purchases, insurance, precious metals, etc.
  • Do not apply for preservation: after the entry into force of the judgment, the other party's name has no property, the winning document is difficult to cash.
  • The choice of cause of action is arbitrary: the applicable cause of action before and after divorce is different from jurisdiction, and the wrong choice will lead to re-prosecution and double the time cost.

9. FAQ

can I only get half of the common property back when my spouse gives it to others?

A full return can usually be claimed. The joint property of the husband and wife belongs to the common community, and the share is not divided during the existence of the marriage relationship. If the disposition is deemed invalid as a whole in violation of public order and good customs, the scope of return shall point to the full amount.

Can small daily transfers be returned?

Generally more difficult. Expenditures that are small in amount, are of a human nature or can prove the existence of real consideration are not usually considered invalid gifts. The referee is concerned with whether it is clearly beyond the daily needs of the family.

I secretly installed the evidence obtained by the surveillance, will the court adopt it?

There is a high risk. Evidence obtained by seriously infringing upon the legitimate rights and interests of others or violating the prohibitive provisions of the law shall not be used as the basis for ascertaining the facts, and it is suggested to take the legal path of applying for court access or applying for an investigation order.

I am divorced, can I get the money back?

Two paths can be tried: to request a re-division on the grounds of hiding or transferring common property and claim less or no division of the other party; or to still request a return from a third party on the grounds that the gift is invalid. The key points of proof of the two are different and should be selected according to the materials mastered.

Practical Experience of 10. Lawyers

when they found that the other party had spent millions of yuan outside, most people's first reaction was "half of me here", but as soon as they wrote the complaint, they found that the request was written as "half back" but they could not get what they should get. To understand a key point: the common property of husband and wife belongs to the common ownership, and there is no clear share during the existence of the marriage relationship, so the party who disposes of it without authorization cannot claim that "I only dispose of my own half". Because there is no fixed share, and because such gifts also violate the duty of loyalty and are not related to family life, judges often tend to deny their effectiveness as a whole, and the scope of return can be all rather than half. Whether you can choose the right one or not directly affects how much you can get back.

Therefore, the petition should be organized around "the gift is invalid as a whole and returned in full". Accordingly, the basis of the defendant's choice and claim right should also be adjusted accordingly: the recipient party is usually listed as the defendant, and if necessary, whether the spouse should be included in the lawsuit should be determined in combination with the case. The specific listing depends on the evidence and the direction of the claim. In obtaining evidence, the records of transfer, consumption and relationship between the two parties are sorted out according to the time and amount to form a chain of "common property is transferred out free of charge. However, it is necessary to keep the legal boundary. Evidence involving privacy such as chat records and photos cannot be obtained by illegal means. Otherwise, not only will it not be used, but you may also be held responsible.

Timing and expectations should also be taken care. This kind of case is often more difficult to execute than to win-if the money has been spent or transferred, the judgment may not be recovered much, so we should find out and preserve it as early as possible, and don't wait for the other party to dispose of the money. At the same time, there should be preparation to evaluate the input according to "how much can actually be recovered", rather than just focusing on the figures in the judgment. Accurate characterization, solid evidence and fast action are the three key points of whether such cases can recover common property. If one link is missing, the result will be discounted.

The success or failure of such cases focuses on three actions: writing the lawsuit request as confirmation of invalidity plus return of property instead of half, closing all the evidence collection paths to legal channels, and removing property preservation at the same time as the lawsuit. After finding clues, you should export and fix the flow and message records of your own account at the first time, sort out the transfer list arranged by time, and check whether the money has been converted into other forms such as vehicles, real estate, insurance or financial management. The limitation period starts on a case-by-case basis from the date it is known, and the earlier it is started, the greater the amount that can be included in the claim.