Insights

Ningbo separation agreement: how to agree on property, children and debts during separation.

Ningbo Author：LuXu WANG

When the relationship comes to a deadlock, many people will think: can we not divorce first, sign a separation agreement, write down the property, children and debts clearly, and calm down for a period of time? Yes, and a written separation agreement is really useful. But before you start writing, you must first clarify exactly what it can and cannot handle.

first put the conclusion in front: separation agreement is a special form of "property agreement between husband and wife" in legal nature. it takes the premise of not dissolving the marriage relationship. it can manage property, children, expenses and debts during separation, but it can't manage the "divorce" itself. By signing it, you will still be legally married, and no one can unilaterally terminate the marriage based solely on this agreement.

1. What is a separation agreement, and what is its purpose?

A separation agreement refers to a written arrangement entered into by spouses during a period of separation, without filing for divorce or obtaining a court judgment for divorce, that addresses matters such as living arrangements, property ownership, debt liability, and the custody and visitation of children. It does not change the survival of the marital relationship, but only adjusts the arrangements for property and personal affairs between the parties during the transition period of separation.

Its closest legal classification is the “agreement on marital property” stipulated in Article 1,065 of the Civil Code. This article allows a man and a woman to agree that the property acquired during the marriage and the pre-marital property shall be owned by each, jointly or partly owned by each and partly jointly, and specifies that "the agreement shall be in writing". The part of the separation agreement on property and debt is essentially this marital property agreement.

Its most significant difference from a divorce agreement lies in their respective purposes and the timing of when they take effect. The purpose of the divorce agreement is to "dissolve the marriage relationship" and will only take effect when the divorce registration or litigation divorce is processed. It usually deals with the division of property, child support and debt settlement after the divorce; the separation agreement does not touch the word "divorce" and solves It is a practical problem during the transitional period of "not yet separated, but living separately. Therefore, the separation agreement does not produce the effect of divorce, nor can it replace the divorce agreement.

What does it do? At least three points. First, turn vague verbal tacit understanding into black and white to reduce wrangling in the future. In a case heard by the Sichuan Jiange County Court, the husband and wife signed a separation agreement due to emotional discord, clarifying that "their respective income belongs to each other" and "their respective creditor's rights and debts shall be borne by each other", and agreed on the ownership of the company's equity and debts; later, the company's operation incurred debts, one party as the legal representative was jointly paid off and sued for compensation, the court based on the marital property agreement and separation agreement, the party ultimately responsible for the judgment shall return the 12,000 yuan paid by it. Second, this helps to secure evidence for any future divorce proceedings, ensuring that the scope of assets, the sources of debts, and the starting date of separation are all documented and verifiable. Third, give both sides a clear line of conduct.

What can and cannot be agreed upon by 2.

The content that can be agreed upon is roughly concentrated in four categories.

  • Property owned and managed separately. It is agreed that the wages, operating income and investment income earned during the period of separation shall belong to each other, and the ownership and use of specific property (real estate, vehicles, equity, deposit accounts) may also be agreed.
  • Assumption of debt. It is agreed that the external debts incurred by each party during the period of separation shall be borne by each party, and it shall be clear which are the old debts before the separation and which are the new debts after the separation.
  • Maintenance and visitation arrangements during separation. agree on which party the child will live with, how much the other party will pay for living expenses and education every month, how to share the medical expenses, and the time and way of visiting.
  • Living Arrangements. After agreeing to live separately, specify which party will remain in the original residence while the other party rents a separate place, and determine who will be responsible for expenses such as the mortgage, property management fees, and utilities.

There are four kinds of content that can't be agreed upon, which are either invalid or can't restrain people at all.

  • An agreement stipulating “automatic divorce”—“once signed, it’s considered divorce.” There are only two ways to divorce: to the civil affairs department for divorce registration, or divorce through court judgment and mediation. Any formulation of "separation is divorce" does not have the effect of dissolving the marriage relationship.
  • Restriction of marital freedom. Conditional restrictions such as "whoever files for divorce first will leave the house clean" and "no divorce within ten years" may be deemed invalid for violating the freedom of marriage and public order and good customs, or at least it is difficult to obtain support.
  • Disposing of another person’s property. A marital agreement may only govern the disposition of the couple’s own property and may not stipulate to whom real estate, equity interests, or other assets registered in the names of the parents, children, or third parties shall be assigned. In a second-instance case heard by the Intermediate People’s Court of Weifang, Shandong Province, an agreement in a divorce settlement concerning the disposition of a house registered under the name of a third party was deemed to constitute unauthorized disposal, rendering that portion of the agreement invalid.
  • Exemption from or evasion of legal obligations. It is not permissible to stipulate in an agreement that “the child shall be entrusted to one party, with the other party having no further involvement,” thereby completely absolving oneself of parental support obligations. Nor is it lawful to transfer all assets under the guise of a separation agreement in order to evade external debts.

3. Property ownership during the period of separation

This part should distinguish two situations. If there is no agreement, separation does not mean the end of the marriage relationship. Nominally you are still husband and wife. Wages, bonuses, remuneration for labor services, income from production, operation and investment, income from intellectual property rights, inherited or donated property, etc. obtained during marriage, in principle, still belong to the joint property of husband and wife. In other words, if the separation agreement does not mention property, the money earned and things bought during the separation may still be legally recognized as common property and will be divided together in the future divorce.

If there is an agreement, follow the agreement. The parties may stipulate: “Effective as of [year] [month] [day], the spouses shall live separately, and any property acquired by each party during the separation shall be owned solely by that party.” In this way, the statutory regime of joint ownership is converted into a regime of separate ownership between the two parties. In a case heard by the Fengtai District Court in Beijing, the husband and wife signed a written property agreement during their marriage, and the agreement on multiple sets of real estate, vehicles, and deposits was owned by one party; one party later repented and claimed to be revoked by fraud, coercion, and obvious unfairness. The court held that the agreement was in written form and the content did not violate the legal provisions, and the evidence was insufficient to prove that there was a revocable cause, and finally rejected the request. It can be seen that the effect of a written agreement is far better than a statement of regret afterwards.

Also, remember three more points. First, it must be in writing, as oral agreements are virtually impossible to prove in the event of a dispute. Second, to write specific, property ownership should not only write "property to their own", it is best to list the location of the property, vehicle model license plate, account number, equity ratio. Third, when it comes to property (real estate, equity, etc.) that needs to be registered before it can be changed, it is not enough to have an agreement alone. Those who can transfer ownership and change registration should be handled in a timely manner, otherwise they may still be considered that the obligee has not changed.

4. Who is responsible for debts incurred during the period of separation?

This is the most easy part of the separation agreement to step on, and the judgment standard should go back to Article 1064 of the Civil Code.

The rules established in this article are: the debts that the husband and wife jointly sign or one party ratify after the fact, and the debts that one party bears for the daily needs of the family in his own name during the existence of the marriage relationship belong to the joint debts of husband and wife; the debts that one party bears in his own name beyond the daily needs of the family do not belong to the joint debts of husband and wife, unless the creditor can prove that the debt is used for the husband and wife to live together, to produce and operate together, or on the basis of the common will of both parties.

When it comes to the scene of separation, it is usually understood that: after separation, the two parties no longer live together, and the factual basis of family affairs agency weakens. If the money borrowed by one party in his own name during the separation period is not used for living together, it is generally not recognized as the joint debt of husband and wife, but borne by the borrowing party. However, this is not an absolute rule—if the creditor can prove that the funds were indeed used for the couple’s common living expenses or joint business operations, or if the other spouse subsequently ratifies the debt or jointly signs the relevant documents, it may still be deemed a joint debt.

There is a key distinction here: debt "inward" and "outward" are not the same thing. A marital agreement stipulating that “during the period of separation, each party shall be responsible for their own debts” is valid between the spouses. If one spouse has paid a debt that should have been borne by the other, they may seek reimbursement from the other pursuant to the agreement. But for creditors, if the debt itself is a joint debt, creditors can still demand joint repayment, how can the husband and wife not be divided against unwitting creditors. Therefore, the main function of the debt clause is to "settle the accounts and facilitate recovery", not "make creditors unable to find you".

It should also be noted that if one party wants to use the property agreement to get rid of the debt, which is identified as malicious evasion of debt and harms the interests of creditors, the relevant agreement may be denied.

5. child support and expenses

The separation is not equal to divorce, which is the key to understanding this section. Regardless of whether parents are living apart or divorced, their obligations to support, educate, and protect their children remain unchanged. Therefore, during the period of separation, one party’s obligation to care for the child and the other party’s obligation to pay child support are statutory duties; they are not acts of favor and cannot be terminated at will.

What can be agreed upon? You can agree on which party the child will live with, how much the other party will pay monthly or quarterly support, how to share education and medical expenses, and how to arrange visits. After the two parties have reached a written agreement on the maintenance arrangement, if one party fails to perform, the other party may claim rights accordingly.

Can you sue for alimony? Yes. Article 1067 of the Civil Code stipulates that if parents fail to perform their duty of raising children, minor children or adult children who cannot live independently have the right to require their parents to pay support. In other words, even if the parents have not divorced, as long as one party should pay but not pay, the other party raising the child or the child himself can claim payment according to law. The standard of alimony is generally determined in the light of the actual needs of the children, the affordability of parents and the local standard of living; if there is a fixed income, it is usually paid at 20% to 30 of the total monthly income, and those who bear more than two children can be appropriately increased, but generally not more than 50%, and the period of payment is generally until the child is

18years old.

A case of Shaoyang County Court in Hunan is worthy of reference: The husband and wife reached an agreement under the auspices of the People's Mediation Committee, which agreed that one party would pay a fixed monthly payment of 3,000 yuan as the daily living expenses of the family. Later, this party stopped paying on the grounds that "the other party has been separated, the other party has financial resources, and he is overburdened. The court held that the agreement was true and legal and should be performed in good faith without rescission or change, and that the party who stopped paying failed to prove that the separation was caused by the other party's fault, nor that the payment seriously affected his own life, so he decided to continue to pay as agreed. This shows that separation does not constitute a ground for suspension of performance.

Evidence of 6. separation and "two years of separation"

Let's start with a key conclusion: signing a separation agreement can prove that "you agree to live separately", but it is usually not enough to prove that the legal cause of divorce is "separated for two years due to emotional discord. Because the separation required by law has two meanings: one is the fact of separation objectively, and the other is that the reason for separation is "emotional discord", rather than objective reasons such as work, study, working in different places, accompanying students, and taking care of the elderly.

Article 1,079 of the Civil Code provides that if one spouse requests a divorce, they may directly file a lawsuit with the court; where the parties have been separated due to incompatibility for a period of two years and mediation has failed, the court shall grant the divorce. The provision also stipulates that if, after a court has rendered a judgment refusing to grant a divorce, the parties have lived separately for another full year and one party subsequently files another divorce suit, the divorce shall be granted. It is evident that “separation for two years” is an important circumstance, but it is neither the only one nor a mandatory prerequisite for filing a lawsuit.

Then, what role can the separation agreement play? It is a strong supporting evidence: if the agreement states that "the two parties shall separate from each other from a certain day of a certain year", "rent a house to live in each other" and "do not fulfill the obligations of husband and wife", and signed and dated by both parties, it can at least prove that both parties have consistent written confirmation of the fact of separation and the starting time.

But only agreement is not enough, it is better to form a chain of evidence: first, evidence of residence, such as house lease contract, rent transfer record, water and electricity payment record; second, evidence of living conditions, such as entrance guard record, express delivery address, residence certificate issued by community or property; third, evidence of communication, such as chat record and total conversation recording reflecting emotional discord; fourth, witness testimony, for example, the statements of neighbors and relatives about the long-term non-living together of the two parties.

should also remind two points: first, the separation must be continuous and consistent, and generally it is not possible to accumulate the time of several intermittent separations for two years; second, simply living in different places does not mean "emotional discord and separation". One party works in other places, and the other party can claim the separation of two places caused by work. Evidence should be organized around the cause of "emotional discord.

Notes on 7. signing and performance

First, it must be in writing and signed by both parties. The separation agreement involves a marital property agreement, which is required by law to be in writing. At the end of the agreement, both parties should sign in their own handwriting and specify the date of signing. If conditions permit, the signature office will hold down the fingerprint and indicate the ID number to avoid denying the signature in the future.

Second, the content should be specific and executable. Write down the time of separation, the list and ownership of property, the division and assumption of debts, the amount of maintenance and the time of payment, and the specific arrangements for visits. A list that can be listed, and a tail number that can be written to an account tail number. Vague provisions effectively leave disputes unresolved for the future.

Third, be sure to keep records. The payment of alimony, living expenses and mortgage shall be carried out by bank transfer as far as possible and the purpose shall be noted, not only in cash; Important communication shall be kept in writing as far as possible; The original agreement shall be made in duplicate and kept separately. If necessary, the signing process shall be photographed or videotaped.

Fourth, notarization is not necessary, but it is beneficial. The matrimonial property agreement does not have to be notarized to take effect, but a notarized agreement is stronger in authenticity and proof, and is more difficult to be overturned in the event of a dispute in the future;If major property such as real estate and equity is involved, the transfer and change registration will be smoother after notarization. It can also plug loopholes such as "whether the agreement was signed by myself or not and whether it was later supplemented.

Fifth, if the registered property is involved, the formalities shall be completed after the agreement. Property transfer, equity change, vehicle registration, the agreement is only "internal basis", registration change is "external publicity". If you drag on, the risk is always there.

Common 8. Mistakes

  • "Signing a separation agreement is tantamount to divorce." No. A separation agreement does not dissolve the marriage. After signing, you are still husband and wife in law, and are still bound by legal rules such as husband and wife's property, debt and support. To get a real divorce, you have to go through divorce registration or go through court judgment or mediation.
  • "divorce automatically after two years of separation."That’s even more wrong. China does not have “automatic divorce.” The separation of two years is only a legal situation in which the court finds that the relationship is broken in the litigation and the divorce is granted, and the premise is that the mediation is invalid due to "emotional discord. Without going through the formalities or filing a lawsuit, the marital relationship remains intact no matter how many years the couple has been living apart.
  • “As long as the agreement is signed, the debt has nothing to do with me anymore.”It depends. The debt agreement within the husband and wife cannot be opposed to creditors, and the creditors of the common debt can still claim to both parties.
  • “Once you’re separated, you’re no longer required to pay child support or living expenses.”Wrong. Separation does not terminate the obligations of child support or spousal support. Suspension of payment must be based on a lawful reason and supported by evidence.

class case reference: in the case of property dispute after the divorce between jin and wang, the court held that the large loan of one party during the period of separation is personal debt in principle within the husband and wife, and the borrower must provide evidence for living together or operating together. It can be seen that the debt agreement and attribution during the separation period must be stated in the agreement and retained evidence of use, otherwise it is difficult to bind the other party. Trial Court: Zhoushan Intermediate People’s Court, Zhejiang Province Case Number: (2011) Zhezhou Minzhong No. 294

9. Frequently Asked Questions

1. Does a separation agreement need to be notarized? Is it valid if it is not notarized?

Notarization is not an effective requirement. It is valid if both parties sign in writing, the intention is true and the content is legal. However, notarization can enhance the authenticity and evidentiary force of documents; for matters involving significant property, it is advisable to have them notarized.

2. During the period of separation, to whom do each party’s wages and business income belong?

If there is no agreement, it is still the joint property of husband and wife; if it is agreed that "each income belongs to each other", it belongs to each other according to the agreement.

3. During the period of separation, one spouse borrowed money without the other’s knowledge—am I required to repay it?

generally does not belong to the joint debt of husband and wife, which is borne by the borrower himself; but if the creditor can prove that the loan is used for the husband and wife to live together and operate together, or if you ratify and sign together afterwards, it may still be regarded as a joint debt.

4. During the period of separation, I am not allowed to see my child. Can I file a lawsuit to seek visitation rights?

Sure. First, attempt to negotiate; if negotiation fails, you may bring a lawsuit to assert your right of access and request that the time and manner of such access be specified.

5. Can a separation agreement stipulate that “whoever initiates divorce first shall leave with nothing”?

It is not recommended to write it this way. Such agreements that condition the right to divorce on certain restrictions are likely to be deemed invalid or not upheld by the courts.

6. After signing a separation agreement, can you still file another lawsuit regarding the same matter?

Yes. If one party fails to perform the property, debt or maintenance obligations agreed upon in the agreement, the other party may sue the court for performance or recovery in accordance with the agreement.

10. Practical Legal Insights

Most of the parties who want to sign the separation agreement hold the mentality of "going through each other first and putting the ugly words in the front". The direction is right, but they should accept a premise first: it can't control divorce. Even after signing, they remain a legally married couple; no one can unilaterally end the marriage based solely on a written agreement. Therefore, it should be designed as a set of behavioral rules for the transitional period, rather than as a divorce certificate issued in advance. Because of this, there is no need to write "voluntary divorce" in the agreement. Instead, it is easy to confuse it with the divorce agreement, leaving disputes at the time of entry into force.

What is really useful is to write down four kinds of matters to death: who will live in the original house after separation, who will bear the mortgage, property, water and electricity; whether their respective wages, operating and investment income belong to their own, or are they still handled together; who will bear the new debts during separation, and distinguish the old debts before separation; who will the children live with, and how will the living expenses, education expenses and medical expenses be shared, how to arrange the visit. The section on property and debts is, in essence, a marital property agreement and must be in writing, specifying the particular assets and accounts involved. It should be noted that you should not write statements such as “separation for two years automatically results in divorce,” as this is both inaccurate and has no legal effect.

Another important function of a separation agreement is to formally establish the fact of “separation,” thereby preparing for potential future litigation. After signing, we should consciously keep the traces of independent residence, such as the contract of renting a house separately, the record of water and electricity payment, and the residence certificate. Don't live frequently while signing the separation agreement, interrupting the continuity of separation. In the performance, if the other party does not pay the maintenance fee or does not repay the loan as agreed, the first written reminder to leave a mark, and then consider the lawsuit, rather than a verbal quarrel. A contract is merely a tool; whether it can be effectively implemented depends on whether you treat it as a set of rules to be followed over the long term.

Give some suggestions to the parties who are ready to sign the contract or have already separated: first, write down the matters that can be thought of as early as possible; second, distinguish the "internal" and "external" of property and debt, and don't take "the creditor can't find me" as the goal; third, don't stop paying alimony and living expenses, and don't use the agreement to restrict the marriage freedom of the other party; the fourth is to consciously retain the evidence of separation around the reason of "emotional discord"; The fifth is the notarization of the notarization and the change registration of the change registration for such major events as real estate and equity.