Insights

Ningbo divorce agreement agreed that the house belongs to the child can go back on our word?

Ningbo Author：LuXu WANG

In order to give their children a safe place to stay, many couples will write a line when going through the formalities: so-and-so house belongs to the children born in wedlock. When signing, you and I wish, when the house price changes, one party remarries or the relationship deteriorates, the transferor often goes back on its word, claiming that this is only a gift and can be withdrawn at any time. Whether such clauses can be revoked or not and whether children can demand performance before transfer of ownership is a high-frequency dispute in Ningbo family disputes.

The Legal Nature of the 1. Gift to Children Clause

the agreement of the house to the children seems to be an act of gift, but it appears in the overall arrangement of the dissolution of the marriage relationship, and is related to the provisions of child support, debt assumption, property division and so on. Therefore, the rules of ordinary gift cannot be simply applied.

1. A mixture of identity relations and disposition of property

such clauses are usually a package exchange between the parties to reach a divorce agreement: one party divides less property or gives up a right in exchange for the other party's concessions on maintenance, debt, etc. The house to the children is often a part of this exchange structure, and if it is removed, the consideration basis of the entire agreement is destroyed.

2. Features of the third-party interest clause

from the contract structure, both parents are the subject of the contract, and the children are the third party who benefit. In the agreement, both parties set rights for their children and at the same time set for themselves the obligation to deliver to their children. This arrangement has considerable stability in effect and cannot be changed by the unilateral will of one party afterwards.

Why 2. Arbitrary Right of Revocation Cannot Apply

article 650 of the the People's Republic of China Civil Code stipulates that the donor may revoke the gift before the transfer of the right to the gift property, except for a notarized gift contract or a gift contract of a public welfare and moral obligation nature such as disaster relief, poverty alleviation and assistance to the disabled that cannot be revoked according to law. Many repentance parties are invoking this article.

1. The overall agreement cannot be dismantled unilaterally.

In judicial practice, it is generally accepted that the gift clause in the divorce agreement constitutes a whole with the dissolution of marriage and other property arrangements, and is not an independent free gift, and the donor cannot claim arbitrary revocation on the basis that the transfer of ownership has not yet been registered. Allowing unilateral revocation is tantamount to allowing one party to withdraw the consideration after it has already enjoyed the benefits of the agreement, which is clearly unfair.

2. Consideration of the nature of moral obligations

parents have the obligation to raise their minor children, and the agreement of the house to the children has the color of fulfilling the responsibility of raising them to a considerable extent. This kind of payment with the nature of moral obligation also belongs to the applicable exception of the right of arbitrary avoidance.

Statutory review criteria for estoppel within one year of 3.

Repentance is not completely without exit, but the threshold is set very high and needs to fall on legal grounds.

1. The two steps of acceptance and rejection

the "Civil Code Marriage and Family Judicial Interpretation (I)" stipulates that if a man and a woman renege on the issue of property division within one year after the divorce by agreement, the people's court shall accept the request to change or revoke the property division agreement. If, after the trial, no fraud or coercion is found in the conclusion of the property division agreement, the claim shall be rejected in accordance with the law. In other words, acceptance is not equal to support.

2. The difficulty of proving fraud and coercion.

To advocate fraud, it is necessary to prove that the other party has concealed key property information or made a false statement, and that the statement directly affects the signing decision; to advocate coercion, it is necessary to prove that there is a specific act that threatens the person, reputation, or property. It is usually not enough to overturn an agreement on the grounds that it was emotional at the time, eager to divorce and felt disadvantaged afterwards.

Can children claim performance when the 4. has not been transferred?

The signing of the agreement but not the transfer of ownership is the most prone to problems, and it is also the link that needs to be laid out in advance.

1. Claims on behalf of the direct dependents

minor children, as beneficiaries, may be brought by the party directly raised as legal representative on the grounds of assisting in the performance of the divorce agreement or requesting registration of changes in property rights. The claim should be specific to the location of the house, the number of the ownership certificate and the processing period, so as to facilitate future application for enforcement.

2. Duty of cooperation and means of implementation

after the effective judgment determines the transfer obligation, if the obligor refuses to cooperate, the obligee may apply for enforcement, and the people's court shall serve a notice of assistance in enforcement on the real estate registration agency to directly handle the transfer of ownership without the obligor's signature. If there is a mortgage on a house, it is necessary to deal with the mortgage first.

Handling of the Heir's Refusal to Cooperate after the Death of the 5. Party

after signing the agreement, one party remarries and dies, and his spouse or other heirs refuse to cooperate with the transfer of ownership on the grounds of inheritance rights. This is a type of dispute that has increased significantly in frequency in recent years.

1. Prior agreement over inheritance claims

if the divorce agreement has clearly stipulated that the house belongs to the children, although the house is registered in the name of the deceased party, it has already borne the obligation to deliver it to the children. The heir inherits the whole of the rights and obligations of the estate, and the obligation of payment formed earlier cannot be denied on the grounds of inheritance.

2. The object of prosecution and the main points of proof.

All legal heirs shall be listed as defendants, and the original divorce agreement, the records filed by the marriage registration authority, the certificate of ownership of the house and the evidence of long-term performance by both parties according to the agreement, such as the house has been occupied and used by the children or the direct dependents, and the property management fees and utilities are paid by the party, etc., shall be submitted to confirm the authenticity and performance status of the agreement.

Five elements that should be clearly written in the drafting of 6. provisions

the vast majority of disputes stem from the fact that the terms are written too simply. A full child gift clause should cover at least the following elements.

1. The subject matter and the point in time must be clear.

The first is the exact location of the house and the number of the ownership certificate, the second is the specific period for the registration of the transfer of ownership, and the third is the arrangement of residential use and the cost of the transfer. The lack of a term agreement is often hampered by unclear obligations at the implementation stage.

2. The bottom of the breach and the obligation to cooperate.

Fourth, the default liability for failure to cooperate within the time limit can be agreed on a daily calculation of the default payment. If conditions permit, it is recommended to handle the transfer or notarization as soon as possible after signing to reduce the uncertainty of the intermediate link.

7. case proof

in practice, when the two parties agreed to divorce, the common house in marriage was owned by the children born in marriage, but the transfer of ownership was not registered in time. A few years later, the registering party claimed to revoke the clause on the grounds that it had not been delivered and was a gift. The court held that the agreement was part of a package of arrangements for the dissolution of the marriage, was related to the upbringing of children and the division of property, and was not a gratuitous gift that could be arbitrarily revoked, and ruled to reject the request for revocation and ordered it to assist in the transfer procedures within a time limit. 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.

In practice, one party remarries after the divorce agreement stipulates that the house is owned by the only daughter, and then dies of illness, and his remarried spouse and other heirs refuse to cooperate with the transfer on the grounds of the right to inherit the house. The court found that the divorce agreement was true and valid, and that the house was occupied and used by one of the children for a long time and borne the relevant expenses, and that the obligation of delivery formed by the prior agreement should be inherited by the heirs, and decided that all the heirs should cooperate with the registration of the transfer of ownership. 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

  • if the transfer is not handled for a long time after signing the agreement, the house may be mortgaged, sealed up or otherwise disposed of, resulting in the loss of rights.
  • The terms only write that the house belongs to the children, and there is no agreement on the time limit for handling and liability for breach of contract. The implementation stage is often hindered by unclear obligations.
  • It is difficult to prove the true meaning of both parties in the future by changing the contents of the agreement orally without forming a written document.
  • If the registered party fails to sue in time after his death, the heir may have registered the inheritance and transferred the house to a bona fide third party.
  • Falsely believing that he can go back on his word at will within one year, he is prosecuted without preparing evidence of fraud or coercion, and is usually dismissed by judgment.

9. FAQ

the divorce agreement has written a house for the children. Can I go back on my word before I transfer the ownership?

Usually not. Such provisions are an integral part of the overall arrangement for the dissolution of the marriage and are interrelated with maintenance, debts, division of property, etc., and are not gratuitous gifts that can be arbitrarily revoked. A claim for revocation solely on the ground that the transfer of ownership has not yet been registered will generally not be supported.

Will the court accept the agreement to go back on our word within one year after the divorce?

will be accepted. However, acceptance does not mean support. If the court does not find fraud or coercion in the conclusion of the property division agreement after the trial, it will reject the claim in accordance with the law. It is usually not enough to overturn an agreement on the grounds that it was emotional at the time or felt a loss afterwards.

The other party just doesn't cooperate with the transfer of ownership. What about the children?

The party directly dependent may sue as a legal representative and request the other party to assist in the registration of the transfer of ownership. If the other party still fails to perform after the judgment comes into effect, the court shall serve a notice of assistance in execution on the real estate registration agency to apply for compulsory execution, and the court shall directly handle it without the need for its presence.

If the party who signed the agreement dies, can the house be transferred to the child?

The obligation of delivery formed by the prior agreement shall not be extinguished by the death of one party, and the heir shall inherit the corresponding obligation at the same time as he inherits the estate. All legal heirs should be listed as defendants for prosecution, and the original divorce agreement, marriage registration records and evidence of long-term possession should be submitted.

Practical Experience of 10. Lawyers

giving the house to the children in the divorce agreement looks like a gift, but it is actually part of the whole divorce arrangement: one party is likely to make concessions on property, support and debt. It is precisely because of the involvement of each other that such agreements cannot usually be withdrawn, as in the case of ordinary gifts. Therefore, the party who wants to hold the property for his children should not be biased by the saying that "this is just a gift" and advocate the agreement as part of the overall divorce plan. Only then can he stand firm and have room to continue talking with the other party.

What really needs to be implemented is the transfer of ownership. It is suggested that the agreement should clearly include the housing information, transfer period, tax commitment, loan processing, and the liability for breach of contract when one party does not cooperate. If you can handle the transfer of ownership or handle the formalities with guarantee effect at the same time, do not delay the house price or the relationship between the two parties has changed. If the house has a mortgage, communicate with the bank in advance to change the debtor, and many of them are stuck in the step of not being able to pass the household. When the child is a minor, the child shall be managed by the guardian on his behalf, and the guardian shall not arbitrarily punish or harm the interests of the child.

If one party turns over and denies it, don't rely on repeated urging. First, write a written reminder to leave a mark, then continue to perform according to the requirements of the agreement. If necessary, cooperate with the transfer of ownership or bear the liability for breach of contract through litigation. The party who wants to withdraw will often argue that "it is only a gift and has the right to withdraw". At this time, the focus is on whether the agreement is clear, whether there is fraudulent coercion, whether it has been fulfilled or partially fulfilled. The results vary from case to case and should not be taken for granted. Before signing this agreement, ask yourself honestly if you are really willing to give up the property for a long time. Don't promise in your emotions and repeat them afterwards, which will hurt the child and make it difficult to get support.