Insights

How to divide calligraphy and painting, antiques and famous wine during divorce in Ningbo

Ningbo Author：LuXu WANG

When divorcing, a batch of calligraphy and paintings, antiques and famous wines are put on the table. In fact, the most likely quarrel is not "who belongs to", but "whether it is common property" and "how much is it worth". To begin with, let’s state the conclusion clearly: the division of collectibles involves two steps. First, determine their nature—whether they constitute marital property or the personal property of one spouse. Second, address how they should be divided. If it belongs to personal property, it belongs directly to me and does not enter the division list; if it belongs to common property, priority negotiation shall be given to one party to retain the physical object and compensate the other party at a discount according to the value; if both parties do not want it, or both want it and do not agree on the price, they will go to the evaluation, bidding, auction and sale after the division of the price. In a nutshell: Qualify first, then set the price; the discount compensation of the important things, and the realization of the unwanted auction. Collectibles are much more troublesome than real estate and deposits: there is no uniform quotation, no registration book, it is difficult to distinguish the authenticity, and they are often "unable to find, moved and sold". So in cases like Ningbo, proof and preservation are often more of a prerequisite than valuation. Next, I will explain the identification, valuation, and division in sequence.

1. First, determine the nature: Is this item jointly owned property or personal property?

The first issue in dividing a collection is always ownership. Article 1062 of the Civil Code lists property acquired during the marriage and, in principle, jointly owned by the husband and wife, including wages and bonuses, income from investment in production and operation, and property inherited or donated (except where a will or contract of gift is determined to belong only to one party); article 1063 includes as personal property a party's premarital property, compensation or compensation for personal injury, property determined to belong only to one party by a will or contract of gift, and household goods used exclusively by one party. On which side the collection falls, it usually depends on four things: when it was obtained, where the money came from, how it was obtained, and whether there was a written agreement.

obtained before marriage, generally belongs to the individual. The calligraphy and paintings, antiques and famous wines bought, inherited or collected for many years before the registration of marriage belong to the personal property before marriage, and shall not be transformed due to the continuation of the marriage, and shall not participate in the division in the event of divorce. A detail that is often overlooked is that the pre-marital collection appreciates after marriage due to the rise in the market. As long as the two parties do not jointly invest in operation, mounting and repair, this part is naturally value-added and still belongs to the original holder. The price increase of collectibles and famous wines is mostly passive value-added, and generally does not compensate each other additionally.

acquired after marriage, in principle, it belongs to the common. Collections bought with common income during marriage, even if only one party selects, keeps and plays with them, in the absence of a special contract, the law defaults to common property and should be included in the list at the time of divorce. In practice, it is common for one party to say "this is my personal hobby, it has nothing to do with you", but this does not change the ownership, what really matters is the purchase time and the source of funds. Beijing No.2 Middle School (2021) Beijing 02 Minzhong No. 6976 Wang Mou and Tao Mou's case involves Maotai liquor, calligraphy and painting and other physical objects. Due to the inability to inspect and the inability of the two sides to reach an agreement, the court did not deal with them and let the parties resolve them separately-it can be seen that the ownership and physical conditions are not brought by a "personal hobby.

Inheritance or donation depends on whether there is "only one party". The collection inherited or donated after marriage, if it is stated in the will or gift contract that only belongs to the husband or wife, it is personal property; if it is not clearly specified, it is regarded as a gift to both husband and wife in principle, it is common property. Many elders verbally said "this is for my son", but did not leave a written word. Afterwards, it is often recognized as common property. It is best to fix the evidence when receiving the gift.

Purchase with personal property, look at the funding link. If you pay directly with personal deposit and personal account before marriage, and can prove that the source of the funds is clear and not mixed with common property, the purchased collection is still personal property in general; on the contrary, if the pre-marital property and the post-marital income are mixed in the same account for a long time and the entry and exit are not clear, the appearance of personal property is easy to be destroyed. Article 1065 of the Civil Code allows husband and wife to agree in writing that pre-marital property and post-marital income shall be owned separately, jointly or partly separately or partly jointly, and a clearly written agreement is often more effective than any proof afterwards.

How to determine the 2. value: negotiate first, then evaluate, and finally refer to the market price

The sex is fixed, followed by pricing. Real estate has an evaluation system, deposits have a book balance, and a calligraphy and painting, a batch of old wine value, who said it does not count. The order is roughly determined in three tiers.

The first step is mutual negotiation. The two sides have little difference in value, or simply agree on "compensation according to a certain number", the court generally adopts it directly, saving time and money, as long as it is not unfair and does not harm the interests of third parties. Negotiated pricing is especially common for items such as famous wines with clear years, brands and quantities.

The second stage is commissioned assessment and appraisal. If the price cannot be negotiated, a report will be issued on the application for a qualified asset appraisal or cultural relic art appraisal agency. The authenticity, age, author, appearance, kiln mouth, material and repair of antiques will all affect the conclusion. The organization will also give a reference price based on recent auction records. The evaluation report also has a "shelf life": the calligraphy and painting market fluctuates greatly. For the report six months ago, the other party may apply for re-evaluation on the grounds of market changes. The base date is usually based on the date of the hearing or the time point determined by both parties through negotiation.

The third gear is the reference market price. If the parties do not apply for an appraisal, or if the collection is difficult to appraise, the court may determine it at its discretion in conjunction with the recent auction price, purchase price, and statements of both parties for similar items. It should be noted that public auction records are usually only for reference, because the transaction is not the subject matter of this case, the court will not directly copy.

There are still two challenges surrounding the question of “how much it’s worth.” First, the dispute over authenticity precedes the dispute over value. If one party says it is true and the other says it is imitation, it is often necessary to identify it first, and the appraisal opinion itself will become a new point of contention. The second is the burden of proof: the party who claims that the collection is common property and how much it is worth should give evidence; the party who claims that it has been sold, lost or does not exist should also provide a basis for its claim. In the case of Zhang mou and Li mou, no 2933, Beijing 02 people's court (2020), Zhang mou advocated dividing calligraphy and painting, antiques and antique stones according to the purchase price. because the other party denied it and did not want stones and did not apply for evaluation, the court held that the value could not be determined and should not be divided-if the valuation was not implemented, there would be no division.

Four ways of 3. segmentation: physical object, discount, bidding and auction realization

After characterization and pricing, it is the turn of "how to divide". Article 1087 of the Civil Code stipulates that at the time of divorce, the joint property of the husband and wife shall be dealt with by agreement between the two parties, and if the agreement fails, the court shall make a judgment in accordance with the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman and the party without fault. Falling on specific objects such as collectibles, the ways can be classified into four categories, echoing the provisions of article 304 of the Civil Code on the division of common objects.

Physical Partition. It is suitable for sets that can be divided and separated without affecting the value, such as several boxes of the same famous wine, sets of collections that are independent of each other. The premise is "separate, not devalued". calligraphy and painting, antiques often open on the fall in price, generally do not apply. It should also be noted that where the division of the common property is requested, the court should not directly determine the right to use the division, but should fall on the physical ownership or distribution of the price.

Discount Compensation. This is the most commonly used type of collection division: one party wants something, one party wants money, and the party that acquires the collection pays the other party a compensation equal to its share of the value determined. It can not only keep the collection intact, but also meet the demands of collectors in their hands. The difficulty lies in the basis of the price-how to determine the value is often the most fierce link between the two sides.

Bid acquisition. When both parties want the same collection and cannot agree on a price, the court may organize a bid on the basis of a prior assessment, with the higher bidder obtaining the physical object and compensating the other party according to the bid. The guidelines for the trial of marriage and family cases in courts in Jiangsu and other places also make it clear that when both parties advocate common property and the conditions are the same, they can seek the opinions of both parties and bid for it. The higher bidder obtains it and gives the other party compensation equivalent to half of the value.

Dividing the price after auction and sale. Both sides don't want it, or the price is completely different, they will cash in the collection and divide the price. It is suitable for situations where everyone is too troublesome and wants to take money, but it is necessary to be prepared: the liquidity of collectibles is poor and it takes time to realize them; It may be sold out and the transaction price may be lower than the assessed price. There are also commissions, taxes and other costs, which may not be equal to the assessed price.

4. typical disputes: hobby, appreciation, whereabouts unknown, gift to the third party

Putting the rules into a real case, there are four types of disputes that repeatedly arise, covering almost all the difficulties of the division of the collection.

The first category, this is my personal hobby, not common property.This type of defense usually does not hold up. Collections purchased with common income during marriage will not become personal property just because one party likes and keeps them. What really depends on is the time of purchase and the source of funds. Conversely, if the collection is indeed pre-marital or purchased with personal property, the claim to personal property can be held.

The second category, how to calculate the appreciation of the collection before and after marriage. In principle, the natural appreciation of personal collections collected before marriage due to the rising market after marriage still belongs to me and will not be divided due to appreciation. However, if one or both parties to the marriage have invested in the management of the collection, such as continuous sale and circulation, exhibition operation, mounting repair, rental fees, these proceeds with the nature of active business may be recognized as common property and need to be divided or compensated. The proceeds of personal property before marriage, except for fruits and natural appreciation, are generally recognized as common property, and this line should be kept in mind.

The third category, the whereabouts of the collection is unknown or transferred. This is the trickiest category. If one party denies in court that "things are long gone" and the other party fails to provide evidence, the court will not believe empty verbal claims. Article 1092 of the Civil Code makes it clear that if one party conceals, transfers, sells, destroys or squanders common property, or forges debts in an attempt to usurp the property of the other party, it may be divided less or not at the time of division; if the other party discovers it only after divorce, it may sue for another division within three years from the date of discovery. Therefore, once the other party may transfer the collection, as soon as possible to apply for property preservation is the key action. Collectibles are small in size, easy to handle, and hidden in different places are very common. The sooner the collection is preserved, the more active it is.

The fourth category, how to recover the calligraphy and painting donated to the third party. Husband and wife have equal right to deal with the common property. If one party gives the common property with greater value to others without authorization, it may constitute no right to dispose. If the recipient is a third party outside marriage and the purpose of the gift violates public order and good customs, the gift may be found invalid, and the other party has the right to request the return of property or compensation at a discount. The recovery of such calligraphy and painting should be prepared from two lines at the same time: one is to prove that it belongs to the common property of husband and wife (source, purchase record), and the other is to prove the fact of donation (transfer, chat record, delivery voucher).

Key points of 5. proof: first prove the existence of something, how much it is worth, and in whose hands

The outcome of a collectibles case is usually divided in half at the stage of proof. Materials should be prepared around three facts to be proved: the objective existence of the collection, how much it is worth, and who owns and controls it at present. The usual evidence is--

  • purchase proof: invoice, receipt, auction transaction confirmation, sales contract, proving the purchase time and price, is the key to distinguish between before and after marriage.
  • Transfer records: screenshots of bank transfer, WeChat or Alipay, corresponding to the purchase funds, judge whether to use common property, whether to mix with personal property.
  • Collection photos and images: real photos, videos, storage or exhibition images at home prove the existence, quantity and appearance of the collection.
  • insurance policy: the insurance policy for the collection often contains the standard, quantity and insured amount, which is the strong evidence of value and existence.
  • authentication certificate and evaluation report: the authenticity, age and value documents issued by the authority directly support the pricing.
  • Source and collection records: inheritance documents, donation contracts and collection files, which are used to identify the acquisition method and ownership.
  • chat records and witness testimonies: the communication contents involving the collection can be used as evidence clues, but the independent use of the evidence is limited.

The proof should form a chain: money (source), material (existence), value (pricing), possession (in whose hands). Any broken link could defeat the claim. Courts usually do not accept oral statements such as "I remember he bought a painting.

6. special circumstances: after the divorce and storage damage responsibility

Can the collection not disposed of at the time of divorce be divided again after the divorce?Sure. At the time of divorce, a common property is not involved, or one party conceals or omits, and the other party may sue for division after the divorce. The focus of the Ningbo court's review is whether the property is indeed common property not involved in the divorce, which is usually divided according to law. If a request for re-division due to concealment, transfer, etc., is made within three years from the day following the discovery.

Who is responsible for the custody and damage of the collection?During the litigation, the collection shall, in principle, be kept by one party or jointly sealed by both parties, with records of handover and photographic evidence retained. If a party disposes of, sends for repair, or mounts without authorization during appraisal or litigation, resulting in a change in quality and a reduction in value, it may be found to be at fault, make adverse adjustments to the division ratio, or even be liable for compensation. Therefore, until the division plan is finalized, the most prudent approach is to maintain the status quo, securely preserve the assets, and ensure a complete audit trail throughout the process—rather than attempting to sort or liquidate them on your own.

7. Practical procedures in litigation: applying for appraisal, property preservation, and enforcement auction.

After entering litigation, there are usually three steps around the collection that deserve to be arranged in advance.

One is to apply for assessment.Before the expiration of the period of proof, submit a written application for evaluation to the judge in charge, and write down the name, quantity and storage of the subject matter. The assessment body is selected by mutual agreement, and the court randomly determines the costs in the roster; the costs are generally paid in advance by the applicant and ultimately shared by the losing party or in proportion to the split. Both parties shall be present at the time of evaluation, inspect the appearance, size, drawing, seal and other physical objects and take photos for filing.

The second is to apply for property preservation. Worried about the other party to transfer, hide the collection, early application to the court for preservation, seizure, seizure of relevant movable property, lock property. Collections are easy to move and transfer, and the earlier the preservation is, the more effective it will be; the application must have a clear subject matter and preliminary ownership and evidence of existence before the court can take measures.

The third is the realization of the auction in the execution stage. If the judgment determines the division of the price after the auction sale, the court shall entrust the auction or sale after the execution, and the proceeds shall be distributed according to the share determined by the judgment. There must be expectations: there may be a failed auction, there may be multiple price reductions, and there may be a gap between the transaction price and the assessed price, which will eventually be allocated based on the actual transaction price.

8. practical suggestions: check and register in advance, agree on ownership, and prevent transfer

Rather than being unable to locate or clearly account for assets during a divorce, it’s better to take proactive steps beforehand. Here are a few tips for collectors.

  • Establish the collection account: register the name, source, purchase price and date item by item, attach photos, invoices and identification certificates, and store them with unified numbers if necessary.
  • Clarification of funds: Pre-marital funds should be stored and paid separately as far as possible to avoid being mixed with post-marital income; when purchasing large collections with personal property, complete financial links should be kept.
  • Written agreement on attribution: for the collection with higher value, the husband and wife can sign a written property agreement, stating which belongs to the individual and which belongs to the common.
  • Insuring Valuable Collections: Protects against loss and damage while providing objective proof of value and existence.
  • timely preservation when finding signs: once the other party is aware of the signs of transferring and selling the collection, consult professionals as soon as possible and apply for property preservation.

Class Case Reference: In the case of property dispute after divorce between Lu and Qiu, the divorce agreement only specified the deposit and house, but did not specify the quantity, value and ownership of the gold, and there was no evidence to prove that the other party took the gold after the divorce, so the court rejected the appeal for returning the gold. Visible calligraphy and painting, antiques, wine and other valuable movable property, must be in the agreement to state the name, quantity, value and ownership and retain the certificate. Trial Court: Case No. of Yinzhou District People's Court of Ningbo City, Zhejiang Province:(2021) No. 16807, Minchu, 02

12City, Zhejiang Province

9. Frequently Asked Questions

Question 1: Do you want to divide the collection before marriage and keep it at home after marriage?In principle, there is no distinction. The collection acquired before marriage is personal property and ownership does not change as a result of the continuation of the marriage, unless the parties agree otherwise in writing, or the collection has been jointly operated after marriage to generate common income.

Question 2: If calligraphy and paintings purchased after marriage are registered under one person’s name, do they belong solely to that person?No. Collectibles are personal property and do not have a registry like real estate to determine ownership. If purchased with common income within marriage, even if it is kept by only one party, it is still common property in principle, and the name of holding does not change the nature.

Question 3: What should one party do if he says that the collection has been sold but he can't get the money?It depends on whether the fact of the sale and the destination of the funds can be proven. If it is true that the common property is sold without authorization, the other party may claim a division of the amount, and if the circumstances are serious, it may also claim a small or no division of the seller. The key is to secure evidence of the leads related to the disposal of assets and the flow of funds.

Question 4: Are famous wines, stamps and literary games also divided according to the rules of calligraphy, painting and antique? is basically the same: first qualitative, then pricing, and then choose physical, discount, auction or auction realization. Fine wines are easier to price through negotiation because their vintage and brand are clearly identified, and complete sets may even allow for physical division.

Question 5: The other party gave a calligraphy and painting to a third party, can I have it back?You can give it a try. If the common property is disposed of without authorization, or the purpose of the gift violates public order and good customs, the gift may be deemed invalid, and the other party may request the return of the property or compensation at a discount. Whether success can be achieved depends on whether the evidence regarding ownership and the fact of the gift is solid.

Question 6: Both parties do not want the collection, only want to take money, what will the court do? generally, both parties will be asked about their wishes first. when both parties do not advocate the physical objects, the collection will be auctioned and sold, and the price will be divided according to the share; if it is difficult to evaluate and inconvenient to divide the physical objects, it may also be evaluated first and then treated at a discount according to the evaluation price.

10. Practical Insights from a Lawyer

When dealing with such collectibles as calligraphy and paintings, antiques and famous wines, the most common mistake made by the parties concerned is to argue "who belongs to this" as soon as they come up. What really decides the outcome is the first two steps: defining the nature first, then pricing. In practice, it is necessary to find out the time of acquisition, the source of funds and whether there is a written agreement before judging whether it belongs to common property or personal property. Obtained before and after marriage only rise with the market, which is usually not converted into common property. However, bought with common income during marriage, even if only one party chooses and keeps it in the whole process, it is still generally included in the division list. If you get the qualitative assessment right, only then will the subsequent discussions be meaningful.

Collectibles do not have a standardized market price, nor is there a registry; therefore, gathering evidence often takes precedence over valuation. Judging from the experience of handling cases, three things should be done simultaneously when dividing property: fixing the existence, quantity and general value of the goods, taking photos and videos and keeping purchase vouchers, auction or transfer records and appraisal certificates; Confirm who has the things now and whether they have been removed or sold off; For high-value objects that may be transferred, apply to the court for property preservation as soon as possible. When the amount and authenticity are not agreed upon, it can be settled through appraisal or bidding, and the valuation method can be written into the agreement, which is much more stable than verbally saying "at market price.

During the negotiation, the value of collectibles is highly subjective, which just gives both parties space for their own interpretation, and is also a piece that is easy to be underestimated and hidden. You can first find out whether the other party wants things or money: if you want to keep things, you should compensate at a discount according to the assessed price, and don't let him use the word "worthless" to suppress the compensation. If you want to cash in, you should agree to share the price after the joint sale to avoid a stalemate in pricing. Also beware of the other party to "this is my personal hobby, has nothing to do with you" or "things can't be found" to dilute, encounter this kind of statement back to the source of funds and custody of the fact to ask. To secure your own share, registering early and obtaining proof of ownership is far more effective than pursuing recovery afterward.

The division logic of calligraphy and painting, antique and famous wine in Ningbo divorce case can be condensed into one sentence:First determine the nature, then set the price, and finally choose the method. In terms of nature, those acquired before marriage, which are clearly inherited and donated by only one party, and purchased with clear personal property belong to personal property and do not participate in the division; those purchased with common income within marriage without special agreement belong to common property and should be included in the list. Pricing, first negotiation, negotiation can not apply for appraisal appraisal, difficult to assess the reference market price and combined with case-by-case discretion. In terms of methods, it can be divided into physical objects without devaluation, one party wants to compensate for the discount, and both parties compete for the evaluation bid, and neither wants to share the price after the auction and sale. Throughout the process, whether the evidence is solid and whether the preservation is timely is often more decisive than the valuation itself.