Ningbo false marriage, false divorce, the law is not counted

The terms “sham marriage” and “sham divorce” appear quite frequently in everyday conversation. To buy a home, obtain household registration, evade taxes, or avoid debts, some people go to the civil registry office to marry someone they are not in love with, while others divorce their real-life partners—both sides tacitly agreeing that it’s just a formality and they’ll return to their previous status later. The problem is that the law does not see it that way. Marriage registration authorities conduct a formal review, recognizing only the official documents and the entries in the registration records: once the registration is completed, the marital relationship is established; upon receipt of the divorce certificate, the marital relationship is dissolved. As long as the parties do not enter the registration materials, the validity of the registration act is basically not affected. In other words, a sham marriage results in the parties being legally recognized as spouses, while a sham divorce results in the parties being legally recognized as divorced.

The following is a clear conclusion according to the article and the referee's point of view.

How to identify "fake marriage" and "fake divorce" in law in 1.

First of all, we must establish a premise: marriage and divorce are all necessary identity behaviors, and the effect comes from registration, not from the inner motivation of the parties.

Article 1046 of the Civil Code stipulates that marriage shall be of the complete will of both men and women; Article 1049 stipulates that both men and women who require marriage shall apply for marriage registration in person at the marriage registration office and complete the marriage registration, that is, the marriage relationship shall be established. The same applies to divorce: Article 1076 requires both parties to divorce voluntarily and to enter into a written divorce agreement; Article 1078 provides that if the marriage registration authority ascertains that both parties are indeed acting of their own free will and have reached a consensus on child custody and the disposition of property and debts, it shall register the divorce and issue a divorce certificate; Article 1080 further clarifies that the marital relationship is dissolved upon completion of the divorce registration or upon the entry into force of a divorce judgment or mediation statement.

This set of provisions state that the act of registration takes effect as soon as it is completed. The registration authority only looks at whether the application materials are complete, whether the parties are present in person, and whether the formal expressions are consistent. It is impossible to verify whether two people love or not, why they are married or divorced. The parties colluded to register the property in order to circumvent purchase restrictions, obtain home-buying eligibility, and facilitate household registration; this purpose merely constitutes the motive behind their actions. In the theory of expression of intent, motives are characterized by their primacy, concealment, and instability, and are generally not considered part of the expression of intent itself. Where the parties actively seek the legal effect of “dissolving the marital relationship” and the act of expression is free from defects, the validity of the personal status relationship remains unaffected.

This has long been reflected in the attitude of the Supreme People's Court and civil affairs departments. The Supreme People's Court's 1979 "Reply to the Report on the Request for Instructions in the Case of Chen Jianying v. Zhang Haiping" False Divorce "" held that if both parties voluntarily, with complete documents and legal procedures, the marriage relationship has been legally dissolved, and the parties do not have the right to request cancellation. Office of the Ministry of Civil Affairs Document No. 71 [2003] also responds that a request to declare a divorce invalid on the ground of using a sham divorce to evade debt has no legal basis. In recent years, judicial opinions have made the reasoning more straightforward: “sham divorce” is not a legal concept in itself and, from a legal perspective, it is no different from what is referred to as a “genuine divorce.”

It should also be noted that "false" can neither invalidate an established marriage nor be a cause for revocation. Article 1051 of the Civil Code defines invalid marriages as those involving bigamy, a prohibited kinship relationship, or marriage before the statutory age; Articles 1052 and 1053 limit voidable marriages to cases of marriage entered into under duress and cases in which one party conceals a serious illness. Collusion, deception (except in cases involving the disclosure of serious illnesses), and material misrepresentation are not included among the statutory grounds. Courts generally do not uphold requests to invalidate the registration on the grounds that “we entered into a sham marriage or sham divorce.”

The effect of 2. false marriage: external is a legal couple

Some people think that fake marriage is only a nominal relationship and will not affect property and responsibility. This is a misunderstanding. Once the registration takes effect, the parties are recognized as a legally married couple in their external relations, and the entire set of rights and obligations under marriage law automatically applies to them, without being altered by any private agreements.

• property in common. During the subsistence of the marriage, wages, bonuses, remuneration for services, and income from production, business operations, and investments are, in principle, considered marital property, and both spouses have equal rights to manage such property.
• Mutual support. Spouses have a mutual obligation to support each other; when one spouse is in financial hardship, the other spouse has a legal duty to provide assistance.
• Statutory Succession. After the registration of the marriage, the spouse is the legal heir in the first order, and the other party may receive a share of the estate on the death of one party.
• joint debt. The debt incurred by one party in his or her own name for the daily needs of the family belongs to the joint debt of the husband and wife, and the debt signed by both parties or recognized by one party afterwards also belongs to the joint debt.
• Child support. Children born during the marriage establish a parent–child relationship with both parents, and the obligations to nurture, educate, andGuardianship do not lapse merely because the marriage is deemed “invalid.”

The real problem is that divorce is difficult. The parties in a sham marriage typically have no emotional bond; once one party changes their mind and demands a “breakup fee,” or if one party incurs debts or becomes involved in legal disputes, the other party will find it very difficult to extricate themselves unscathed. To dissolve the marriage, one must either file for a divorce by mutual agreement or initiate a divorce lawsuit, which entails a cooling-off period, division of property, determination of debts, and a host of other issues. If the other party refuses to consent to the divorce and the circumstances do not meet the statutory grounds for divorce, the process may drag on for an extended period.

Risk of 3. fake marriage settlement

The risks of using marriage registration as a tool for settling down, buying a house and enrolling children are concentrated in the following areas.

First, the settlement policy reviews the real marriage relationship. In most cities, the policies of settling down, introducing talents and moving with them are all conditional on the status of spouse, common residence and the duration of marriage. If household registration eligibility is obtained through a sham marriage, once such conduct is verified, the public security authorities may, in accordance with the law, revoke the household registration transfer and cancel the false household registration; any benefits—such as home purchases, social security, or educational entitlements—obtained on this basis may also be reclaimed or invalidated.

Second, the registration itself may be revoked. If there are major defects in marriage registration, such as impersonation, forged documents, etc., the registration authority may correct the error, and the parties may also apply for administrative reconsideration or file an administrative lawsuit to cancel it. It should be noted that such defects do not fall under the grounds for invalidity of marriage set forth in Article 1051 of the Civil Code; a civil action seeking a declaration of marital nullity will typically be dismissed. The proper course of action is to pursue an administrative remedy.

Third, the hidden danger of identity being used is more worthy of vigilance. In practice, there have been cases where one party borrows the identity information of others to register for marriage: the marriage certificate records the fraudulent person, but the actual person living together is another person. At this time, the registration only binds the party named on the certificate; the person actually living in the household and the person whose identity has been misused are neither spouses nor do they constitute a de facto marriage (since February 1, 1994, China no longer recognizes de facto marriages), and can only be treated as cohabitants, placing them at a significant disadvantage in providing evidence when property or child-related issues arise.

Fourth, divorce is difficult. The impostor may be "married" many years later when he or she takes out a loan or buys a house. To clarify the relationship, the wrong registration must be canceled first, and then the subsequent property and credit problems must be dealt with. The process is long.

The effect of 4. false divorce: registration is the real divorce.

The situation at the divorce end is the opposite of that at the marriage end: fake divorces are more likely to suffer because the parties often make substantial property arrangements in the agreement.

A divorce by agreement becomes effective upon registration. Pursuant to Articles 1076 to 1078 of the Civil Code, where both parties enter into a written divorce agreement and apply in person, they must undergo a cooling-off period before reapplying for issuance of the certificate. Upon verifying the circumstances, the registration authority shall register the divorce on the spot and issue a divorce certificate; the marital relationship is dissolved upon receipt of the certificate. Thereafter, to restore the marital relationship, the parties must reapply for marriage registration (re‑marriage registration). If either party does not consent, the other party has no right to demand “restoration to the original state.”

The property division and debt-bearing provisions in the divorce agreement are valid in principle. As a person with full civil capacity, the party should have foreseen and borne the corresponding consequences when signing the registration document. In practice, courts tend to hold that the divorce agreement filed with the registration authority has the effect of public notice and credibility; therefore, a party should not be permitted to unilaterally alter it after registration on the grounds of a “sham divorce,” as such conduct would undermine the order protected by the marriage registration system. The judgment that has come into effect clearly states that the legal meaning of "false divorce" is no different from that of the so-called "true divorce". After the registered divorce, the identity relationship has been dissolved, and the divorce agreement retained in the registration authority will not lose its effect due to "false divorce", and the risks arising therefrom shall be borne by the parties themselves.

What needs to be distinguished are the two levels of identity and property. The dissolution of the identity relationship is irreversible from the completion of registration; the effect of the property division clause can be examined separately. If the parties can prove that the parties did not have a true intention to divide at the time of the signing, which is a conspiracy to hypocritical, there is a possibility that the provision may be found invalid (article 146 of the Civil Code). But this is the exception, and the burden of proof is on the proponents-it is very difficult to prove that "we didn't want to really score at the time. In most cases, the "false divorce" claimed by the party who repented afterwards was not accepted due to lack of evidence.

5. the risks of buying a house with a fake divorce

False divorce in order to avoid purchase restriction and loan restriction policy is the most concentrated scene of such disputes. The risks can be seen from four aspects.

• Home Purchase and Loan Eligibility. Changes in the property and loan records under the name of the divorce may indeed allow the parties to regain their first or first loan eligibility, but this is based on the legal fact that "the marriage has been dissolved.
• Ownership of newly purchased homes. The ownership of a house purchased in the name of one party after the registration of a divorce is generally determined according to the capital contribution and registration, and is no longer treated as the joint property of the husband and wife. Even if both parties contribute capital jointly, as long as the divorce agreement already specifies the ownership of such funds, the court may still deem the contribution to belong to the party in whose name the assets are registered.
• The other does not remarry. This is the most common breaking point. Judicial opinions that have already been incorporated into the legal system hold that, as parties with full civil capacity, when they register for divorce, they should fully consider the consequences and assume the associated risks; therefore, it is not permissible to subsequently seek to modify the divorce agreement on the grounds of a “sham divorce.”
• The joint and several consequences of the denial of the property clause.In a few cases, the court found that the division of property in the divorce agreement was fraudulent and invalid, and that the common property needed to be re-divided according to the contribution, fault and other factors during the marriage. This seems to be in the interest of the losing party, but only if he can complete the proof.

That is to say, whether the wishful thinking of "buying a house-remarriage" can be fulfilled depends on whether the other party keeps the contract; the law only recognizes the state after the registered divorce, and does not provide special protection for "false divorce. A recurring reminder in the judgment is that people often fail to anticipate the fragility of marriage; once one party treats a pretense as reality, the other party frequently ends up losing both their relationship and their assets.

The Effectiveness of 6. False Divorce to Evade Debt

Unlike buying a house, the purpose of avoiding debt is not only unprotected, but also actively corrected. Creditors have at least two paths to relief.

The first is the exercise of the creditor's right of avoidance. Article 538 of the Civil Code provides that if a debtor disposes of its property rights gratuitously by waiving claims, transferring property without consideration, or through other means, thereby impairing the realization of the creditor’s rights, the creditor may request the court to revoke such act. Article 539, addressing onerous dispositions such as the transfer of property at an obviously unreasonable low price, stipulates that the disposition may also be revoked if the counterparty knows or ought to have known of such circumstances. The exercise of the right of avoidance is limited to the extent of the claim, exercised within one year from the date on which the creditor knew or should have known of the cause of avoidance, and extinguished within five years from the date of the act (articles 540, 541).

The second is that malicious collusion is invalid. Article 154 of the Civil Code stipulates that civil legal acts in which the perpetrator and the counterpart maliciously collude to damage the legitimate rights and interests of others are invalid. The husband and wife know that one party has external debts, still through the divorce agreement to return almost all of the property to the other party, all the debt left to the debtor, creating the illusion of "inability to perform", in line with this article. In Jiangsu and other regions, there are already established case precedents and judicial guidelines that clearly state: for divorce property division agreements entered into with the intent to evade debt, creditors may bring suit to seek a declaration of their invalidity, and courts will uphold such claims; once declared invalid, the relevant assets shall still be treated as liability assets and used for debt repayment.

From the debtor's point of view, the consequences are multiple: the identity relationship will not be restored by the revocation of the property clause. Attempting to evade debt through a “sham divorce” is almost never effective.

The impact of the death, remarriage and childbirth of the 7. party on the "false divorce"

The parties to a fake divorce often pin their plans on the future, but the changes that occur during the period can make the whole arrangement lose its foundation.

One party died. Once divorce registration is completed, the parties are no longer spouses, and in the event of one party’s death, the other party does not have statutory inheritance rights. However, if at the time of divorce it is true that the joint property of the husband and wife has not been disposed of, the other party may claim separate property and division, and such claims are considered to be exempt from the statute of limitations. It should be emphasized that what may be asserted is the “undivided co-owned property,” not the inheritance share attributable to the status of spouse.

To remarry. After a sham divorce, if one party registers a marriage with another person, that new marriage is legally valid; conversely, the original spouse cannot claim the prior divorce is invalid on the grounds that it was a sham, nor can they prevent the other party from remarrying. Once this situation occurs, the "remarriage" agreement is completely lost.

Childbirth. For children born after a fake divorce, the parent-child relationship is still established, but because the two parties are no longer husband and wife, the child is a child born out of wedlock, the biological father needs to claim or confirm the parent-child relationship through litigation, and the maintenance and upbringing relationship need to be determined separately.

8. risk prevention and suggestions

Put the above points together, there are actually only two core suggestions.

• Don't use marriage registration to make deals. Registration is an act of establishing legal identity; once completed, it gives rise to the full range of legal consequences and is irreversible. Any arrangement that involves “divorcing first and then remarrying” or “getting married first and then dividing the property” essentially places one’s fate in the hands of whether the other party will honor their commitments.
• If you really need a divorce, talk about property and debt.If the marriage is indeed unsustainable, instead of claiming afterwards that "it was fake at the beginning", it is better to write clearly the true ownership of real estate, deposits, equity and debts in the divorce agreement, so as to avoid leaving the tail of "undivided common property. The clearer the agreement, the fewer disputes there will be in the future.

In addition, if you suspect that you are "married" or "divorced" without knowing it (such as being registered under a false name or signing an agreement on behalf of you), you should apply to the marriage registration authority for correction as soon as possible, or cancel the wrong registration through administrative reconsideration or administrative litigation, and fix the relevant evidence at the same time. Where the other party is maliciously evading debt, the creditor shall file a lawsuit within the statutory time limit.

9. Frequently Asked Questions

1. Is the "guaranteed remarriage" agreement signed during the fake divorce valid?

Generally invalid. Freedom of marriage is the principle established in article 1046 of the Civil Code, and the agreement that "remarriage must be remarried in the future" is essentially a restriction of one party's freedom to marry, which is an interference with the freedom of marriage of others, and the court usually finds that the provision is invalid and cannot force the other party to remarry accordingly.

2. If the other party refuses to remarry after a sham divorce, can I file a lawsuit to compel remarriage?

can't. The marriage relationship cannot be established through litigation, and the court will not judge the parties to remarry. The status relationship has been dissolved since the completion of divorce registration. To resume, both parties can only apply for marriage registration again voluntarily.

3. If you gave all your property to the other party during a sham divorce, can you still get it back?

It depends on whether evidence can be presented. The identity relationship cannot be restored; the property division clause is valid in principle. The clause may be denied only if it can be proved that the parties were conspiring to be hypocritical at the time of the signing and that there was no real intention of dividing, and such proof is often difficult. In practice, most claims are not supported due to insufficient evidence.

4. What should I do if the other party refuses to divorce after the fake marriage?

can only be dissolved according to law: both parties can negotiate to divorce by agreement, and can not negotiate to file divorce proceedings. If there are major defects in the registration, such as impersonation, forged documents, etc., the registration can be revoked through administrative reconsideration or administrative litigation, instead of claiming that the marriage is invalid.

5. What are the consequences of registering marriage by borrowing other people's identity information?

This kind of registration restricts the subject specified in the certificate. The actual cohabitation relationship does not constitute a marriage relationship between the actual cohabitation and the registered subject, and the de facto marriage is not established. The person whose identity is fraudulently used may apply for cancellation of the erroneous registration and hold the fraudulent party accountable.

6. Can I claim the right to remarry or die after a fake divorce?

can no longer be claimed as a spouse. If the other party remarries, the new marriage is valid and you cannot ask for remarriage. If the other party dies, you have no legal right of inheritance, but if there is any joint property of the husband and wife that was not processed at the time of divorce, you can file a separate lawsuit for property analysis and division.

10. Practical Legal Insights

came to a lawyer and asked us if we were fake divorces and whether we could count. Most of them had already suffered a round of losses. First, correct one's cognition: once the registration is completed, the identity relationship will go according to the real one. inner calculations and private agreements cannot enter the registration materials and will not have legal effect. Where there is really room for operation, it is not whether the registration can be canceled, but how the property, debts and children were written in the agreement at that time. Therefore, in case of such consultation, the first thing is to call up the divorce agreement and registration materials, to see one by one whether the common property has been hastily allocated to one party, whether the other party has owed debts, whether arrangements have been made for remarriage and childbirth, and then to judge which can be discussed and which can only be recognized, instead of pestering, which should have been false.

If there is a dispute after a fake divorce, the remedy should be made in time. If you still live together after divorce and jointly contribute to buy a new house, whose name the house is registered in and whose account the money goes from, you can directly decide whether you can claim rights and interests when you break up. Therefore, you should fix the capital contribution certificate, loan repayment flow and the chat record of the two parties regarding the house as soon as possible. If the other party has transferred property and evaded debts through a fake divorce, the damaged party can still pursue it through the path of cancellation, confirmation of invalidity, etc., instead of registering and recognizing everything. There are more difficult points: one party remarries, gives birth or even dies during this period. These facts will completely fail the remarriage. If inheritance and property are involved, it is necessary to sort out the ownership as soon as possible.

From the perspective of prevention, if you really want to get a license for the purchase qualification and settle down, you have to think clearly about the risks that the other party may bring: after registration, you will be a legal husband and wife externally, and you may be implicated by the other party's debts, business operations and even financial transactions of the bride price nature, and the presumption of inheritance and common property under the status of spouse will also take effect. A safer way to do it beforehand is to write a written agreement on the capital contribution, the ownership of the property and how to divide it in the future, leaving traces of money transactions and clear accounts, rather than just saying it orally. If a dispute has already occurred, don't wait passively just because it was fake at that time. It is often much more useful to fix the evidence first and then talk about the plan than to wait for the conscience of the other party to find out.

Back to the original question: The so-called "fake marriage" and "fake divorce" are not independent concepts in law. Once the registration is completed, the marriage is established; once the divorce certificate is obtained, the marriage is dissolved. The "fake" on the lips of the person concerned will not change the nature of the act, nor will it leave a door that can be returned at any time.

From this, three practical conclusions can be refined. First, marriage registration is a system of formal examination and public trust. The registration authority has no way or need to inquire into the real motives of the parties. Therefore, the defense of "my original intention is false" can hardly shake the validity of registration. Second, the price of fake marriage is a full set of rights and obligations of husband and wife, especially in the settlement, debt, inheritance, identity being used and other links of risk increased sharply. Third, the only substantial relief is the invalidity of the property clause for complicity or malicious collusion, and the exercise of the right of avoidance by creditors in accordance with the law, all of which are premised on sufficient evidence.

Therefore, instead of trying to prove that "we are fake" afterwards, it is better not to do it beforehand; when it is really necessary to adjust the marital status, it is the right way to protect oneself by writing the true arrangement of property, debt and children into the agreement completely.