Insights

Can Ningbo spouse get the money back to the third party?

Ningbo Author：LuXu WANG

If you find that your spouse has transferred a large sum of money to a third party during marriage, buying a house and buying a bag, can you get it back? Such gifts are often found to be invalid because they violate public order and good customs, and they can often be recovered in full, not just half.

The nature of the 1.'s unauthorized gift to a third party.

During the existence of the marriage relationship, if one party gives the joint property of the husband and wife to others or disposes of it at an obviously unreasonable price for the purpose of bigamy, cohabitation with others or other purposes of violating the duty of loyalty of the husband and wife, the act damages the property rights and interests of the spouse and deviates from public order and good customs.

Disposition is common property

large gifts usually use the husband and wife's joint deposits and joint business income. Disposition without the consent of the spouse violates the other party's right to equal treatment of common property and is improper for improper purposes.

2. against public order and good customs is invalid

the judicial interpretation (II) of marriage and family clearly stipulates that if one of the spouses gives the common property to a third party for the purpose of violating the duty of loyalty, such as bigamy and cohabitation, and the other party claims that the act is invalid in violation of public order and good customs, the people's court shall support it and deal with it in accordance with the relevant provisions.

Return scope after invalidation

after a civil juristic act is invalid, the property acquired as a result of the act shall be returned. The gift is invalid because it violates public order and good customs. In principle, all the benefits obtained by the third party should be returned, not only the spouse's half.

3. may claim full return

since the gift as a whole is invalid, one spouse may claim the return of all the donated property by the third party. In practice, it is common to return the value corresponding to the transfer, purchase money, and valuables, rather than just chasing half.

1. Limited deductions and defences

the third party often defends with "also paying for feelings" and "having had contacts", but under the rule of invalid public order and good customs, the space for such defenses is limited. The specific scope of return is still determined by the evidence of the nature of the money.

2. Small daily transactions are usually not returned.

Not all transfers can be recovered. Expenses that are small in amount and have the nature of daily human relations, the court generally finds that they belong to a reasonable disposition of common property by one party and shall not be returned. What is really supported are large expenditures that clearly exceed the needs of daily life, such as down payments on home purchases, vehicles, valuable jewelry, and long-term fixed monthly transfers, which are out of the bounds of reasonable disposition.

4. the burden of proof is on the spouse

the party claiming the return shall prove that the money comes from the common property of the husband and wife, the spouse's unilateral gift, the recipient is a third party, and the purpose of the gift violates the duty of loyalty. Transfer records, chat records, relationship evidence constitute the most critical chain. According to Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence has many defects in proof and is difficult to accept. Ningbo parties should keep the original carrier of chat records to avoid insufficient proof caused by screenshots only.

Four types of evidence constitute a complete chain

the party claiming the return needs to prove four things: the money comes from the joint property of the husband and wife, the real occurrence of the transfer or purchase, the improper relationship between the donee and the spouse, and the gift without their consent. The corresponding evidence is bank flow and tax payment records, transfer vouchers and shopping invoices, chat records and common travel records, and instructions that they have never ratified before. The chain is complete and the support rate is very high.

Why is the 5. returned in full instead of half?

The common misconception is that I have half of the common property, so I can only get half back. The actual referee logic is different. Husband and wife have common property in common rather than in shares. One party has no right to dispose of a large amount of common property given to others without the consent of the other party. At the same time, the gift is invalid because it violates public order and good customs. The legal consequence of invalidity is to restore the original state. Therefore, the recipient should return all the income instead of 50% of it.

After the return, the money is returned to the pool of the husband and wife's common property, and then according to the rules of divorce property division. At this point another layer of protection comes into play: the unauthorized disposition of the party is at fault, the court can divide it less in the division, and the underscore in similar cases is usually between 20 and 40 per cent. The two-step superposition is the complete relief path.

6. case proof

in practice, the husband transferred money to the third party more than ten times during the marriage and made a down payment for the house purchase. The accumulated amount was about 860000 yuan. The wife claimed that the donation was invalid on the grounds that it violated public order and good customs. The court ordered the third party to return it in full at a rate of 100 instead of only returning the wife's corresponding 50% share.

In practice, one party purchases vehicles and valuable jewelry for the third party with the joint operating income of the husband and wife, and the spouse requests the return after submitting the transfer voucher, shopping record and chat record. The court determines that the gift is invalid as a whole and orders the return of the corresponding value of about 350000 yuan according to the purchase price. At the same time, the party shall be given a small share in the division of the divorce property.

7. Risk Alert

  • only know derailment do not know transfer, missed the recovery of property.
  • The evidence is fragmentary and cannot prove that the source of funds is common.
  • After the divorce, the account has been emptied.
  • I think I can only chase my own half.
  • To confuse restitution with divorce compensation.

8. FAQ

can the spouse get the money back to the third party?

Can. Unauthorized donation of common property to a third party is mostly invalid for violating public order and good customs, and may claim its return.

Is it half or all?

The gift as a whole is invalid, and a third party may generally be claimed to return the entire donated property, rather than only the spouse's share.

To prove what?

It is necessary to prove that the source of the money is common property, that the spouse gives it unilaterally, that the other party is a third party, and that the purpose violates the duty of loyalty.

Does this conflict with divorce damages?

No conflict. Return is invalid for property disposition, and compensation is for fault, which may be claimed separately.

Will all the money recovered belong to me, or will it be divided into half?

The returned money is first returned to the joint property of the husband and wife, and then processed according to the division rules. Due to the fault of the unauthorized disposition party, the court usually points less, the common range is 20% to 40%, so the actual hand is often higher than the simple half-and-half result.

Every transfer is not big, it adds up to more, can it be recovered?

Yes, the key is to present the scattered transfers as a whole. The long-term, fixed, multiple transfers pointing to the same object will be summarized into a table, and the court will make an overall evaluation in conjunction with the chat record to explain the nature. If the accumulated amount obviously exceeds the level of daily human relations, it is usually determined to be beyond the scope of reasonable punishment.

Practical Experience of 9. Lawyers

it is found that the spouse transfers money and buys gifts to a third party. Whether he can get it back and how much he can get back depends on two points: whether the money is common property and whether it can be proved to be for the third party. If this kind of gift is for the purpose of violating the duty of loyalty, such as bigamy and cohabitation with others, it will usually be regarded as violating the public order and good customs and invalid, and the benefits obtained by the third party should be returned in principle; and in practice, it is more common to advocate full return, rather than only half. Stand firm in the direction first, then talk about the details and amount. Don't be discouraged by the saying that "you can only get half back at most.

In such cases, the burden of proof is on the claiming party, and the evidentiary requirements are not low. It is suggested to fix the transfer flow, red envelope records, shopping and consumption vouchers, chat records, and materials that can match the money with a third party as soon as possible, and pay attention to the preservation of the original carrier for electronic evidence. The more clear the three elements of amount, object and time, the better. If the other party is still continuing to transfer, consider property preservation as soon as possible. If the amount is scattered, has been consumed, or it is difficult to prove the specific amount, we should make psychological preparations in advance that we cannot recover it, and focus our work on the most sure part.

In this kind of lawsuit, how to make a claim is very important: instead of saying in general terms "divide the money given to him in half", it is better to explicitly request confirmation that the disposition is invalid, order the return of the property, and state the interest or discount that may be generated in addition to the principal, so that the execution is more grasping. Whether it should be tied to divorce or not, it should also be divided into different situations: some parties have the confidence to recover the money before talking about divorce; Some simply push forward the two lines simultaneously, making the recovery a bargaining chip in the divorce negotiation. The mentality should also be stable, don't be disturbed by the other party's crying or threats, and don't cross the border for anger. Give the evidence to the program and focus on the recoverable part. What you actually get is often more than you think.