"The marital property agreement and the gift between husband and wife are contracts signed by husband and wife for the distribution and ownership of property, and are important systems for family property. However, Article 1065 of the Civil Code and Article 32 of the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's Republic of China (I) do not clearly distinguish between the application of the marital property agreement and the gift between husband and wife, and the parties have not clarified the relationship between the two in practice.", This article aims to clarify the relationship between the two through question and answer methods and clearly distinguish the consequences of different legal relationships, which can help effectively curb the deterioration of the crisis and protect family and personal property when a family crisis occurs.

1、 On the marital property agreement

(1) What is a marital property agreement?

The marital property agreement refers to a written agreement between a husband and wife or a person who is about to become a husband and wife on the property acquired before marriage or after marriage, stipulating the property relationship between them, thereby excluding the application of the statutory joint system of marital income and the personal property of the husband and wife.

(2) Scope of marital property agreement

It is possible to stipulate relevant rights such as property ownership, use rights, management rights, usufruct rights, and disposal rights, as well as the burden of family living expenses, debt repayment responsibilities, and the liquidation and division of property upon the termination of marriage.

(3) Time of marital property agreement

Both men and women can make an agreement before and after marriage. "At the time of conclusion of the contract, both parties may not necessarily have a marital relationship, but according to the nature of the marital property contract, the marital property agreement should take the conclusion of the marital relationship between the two parties as a prerequisite for its establishment. If it is concluded before marriage, but if it is not married, it will not have any effect.".

(4) Ways of marital property agreement

"There are only three forms of agreement: pre marital or post marital property owned by each other, jointly owned or partially owned by each other, and partially jointly owned by each other, but this does not include the case where one party agrees to own personal property for the other party.".

(5) Does the "real estate" in the marital property agreement need to be registered for change

The agreement meets the following constitutive requirements: (1) Both parties' expressions of intention are true; (2) Not violating the mandatory provisions of laws and administrative regulations; (3) This legal act is effective without harming the public interest and the legitimate rights and interests of third parties. Compared to the provisions of the Property Right and Contract Sections of the Civil Code, the provisions of the Marriage and Family Section on the property relationship between husband and wife are special provisions. The marital property agreement does not need to strictly comply with the property right change conditions stipulated in the Civil Code, and can directly have the effect of the property right change, that is, one party can obtain property ownership according to the agreement.

(6) Effectiveness of external liabilities in marital property agreement

"It is limited to one of three types of property agreement, that is, the creditor knows that the husband and wife have agreed to" own the property after marriage ". Under this agreement, the debt is paid off with the personal property of the husband or wife, and the other party is not liable.". However, the husband and wife should bear the burden of proof for the creditor to know.

2、 About gifts between husband and wife

(1) What is a gift?

A gift is a contract whereby the donor gives his or her property to the donee for free, and the donee expresses acceptance of the gift.

(2) The difference between gifts and gifts between husband and wife

A gift between husband and wife is different from a general gift, and its purpose is to "make a gift conditional on marriage.". The gift between husband and wife occurs between husband and wife, or between men and women who are about to register for marriage, and is based on the existence of the marriage relationship or the desire to form a family. The gift behavior of the donor is not motivated by fearless generosity, but rather by the beautiful hope for a long-term stable marriage relationship or the formation of a marriage. In terms of legal application, the provisions on gifts in the contract section of the Civil Code do not specify the exception of gifts between husband and wife, so gifts between husband and wife can be subject to the provisions on gifts in the Civil Code.

(3) Scope of gift property

Including all property that can bring benefits, including movable property, real estate, equity, intellectual property, and even property that can be acquired in the future.

(4) Can couples renege on property gifts

Yes, according to Article 209, Paragraph 1, of the Civil Code, "The establishment, alteration, transfer, and extinction of real estate property rights shall take effect upon registration in accordance with the law; they shall not take effect without registration, unless otherwise provided by the law." The principle of registration effectiveness is adopted for changes in real estate property rights in China, even if one party actually possesses the real estate, if no ownership transfer registration or "name addition" registration procedures (or notarization) are handled, The property donor may exercise any revocation right to revoke the gift.

(5) Can the donor waive the right of arbitrary revocation

Yes, the parties concerned have the right to dispose of their civil rights within the scope prescribed by law. The agreement that the donor voluntarily waives the "arbitrary revocation right" should be protected by law, and the recipient has the right to request continued performance of the gift contract and acquisition of the donated property.
(6) Part of the property donated between husband and wife has been fulfilled, and whether the unfulfilled part can be revoked

Yes, if one of the spouses has multiple properties, and some of them have been registered for transfer, the donor can exercise any right of cancellation, and the outstanding portion will not be fulfilled.

(7) The gift property has been transferred to the recipient. Can I cancel the gift

You can exercise the statutory revocation right to revoke the gift. According to Article 663 of the Civil Code, the recipient has seriously infringed upon the legitimate rights and interests of the donor or his close relatives; Failing to perform a maintenance obligation to the donor; "If the donor fails to perform the obligations stipulated in the gift contract, the donor may revoke the gift.". However, agreements that restrict personal freedom or violate the donee's obligations under public order and good customs cannot be supported. Note: The donor's revocation right shall be exercised within one year from the date on which he knows or should have known the cause of revocation.

3、 The difference between marital property agreement and gift between husband and wife

4、 Lawyer tips

"When making property agreements between a husband and wife or a man and woman who are about to register for marriage, a clear distinction should be made between the application of marital property agreements and gifts between the husband and wife.". "A couple's property donation is generally only aimed at situations where one party gives the property owned by the individual to the other party, either individually or jointly.". In practice, the agreement that the joint property acquired by both parties after marriage is the personal property of the husband or wife belongs to the "marital property agreement".

"The marital property agreement is different from the gift between husband and wife, and the property right changes when the agreement takes effect, without the need for registration of changes.". However, in order to avoid property losses and transfer risks, both cases should be subject to timely changes in property rights.
"A gift between husband and wife should be promptly notarized, registered for change, or agreed that" the donor waives the exercise of arbitrary revocation rights "to prevent one party from arbitrarily revoking the gift.". However, if the gift contract stipulates that the recipient should perform certain obligations, but fails to perform them, or if one party has seriously infringed upon the legitimate rights and interests of the donor or the donor's close relatives (in practice, it is generally judged by bigamy or cohabitation with others; domestic violence, maltreatment, abandonment of family members, etc., leading to the breakdown of marital relationships), the donor can revoke the gift based on the legal right to revoke. However, there are time constraints, and they are generally exercised within one year after the occurrence of the above situation.
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Article 32 of the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's Republic of China (I): Before marriage or during the duration of the marriage relationship, the parties agree to donate the property owned by one party to the other party or jointly owned by the other party, and the donor cancels the gift before the change of the donated property is registered, and the other party requests that the decree continue to be performed, the people's court may handle it in accordance with the provisions of Article 658 of the Civil Code.

Article 657 of the Civil Code states that a gift contract is a contract whereby the donor gives his own property to the donee without compensation, and the donee expresses his acceptance of the gift.

Article 1065 of the Civil Code: Both men and women may agree that the property acquired during the period of marriage and premarital property shall belong to their respective or joint ownership, or part of their respective or part of their joint ownership. The agreement shall be in writing. "In the absence of or unclear agreement, the provisions of Articles 1062 and 1063 of this Law shall apply.".

The agreement between a husband and wife on the property acquired during the duration of their marriage relationship and the premarital property shall be legally binding on both parties.

"The property acquired by the husband and wife during the duration of their marriage relationship is agreed to be owned by each other. If the other party is aware of the agreement, the debt incurred by the husband or wife to the outside world shall be paid off with the personal property of the husband or wife.".

Article 658 The donor may revoke the gift prior to the transfer of rights to the gift property.

The provisions of the preceding paragraph shall not apply to gift contracts that have been notarized or that have the nature of public welfare and moral obligations such as disaster relief, poverty alleviation, and disability assistance that cannot be revoked according to law.

Article 663 The donor may revoke the gift in any of the following circumstances:

（1） Seriously infringing upon the legitimate rights and interests of the donor or his near relatives;

（2） Failing to perform a maintenance obligation to the donor;

（3） Failure to perform the obligations stipulated in the gift contract.

The donor's revocation right shall be exercised within one year from the date on which he knew or should have known the cause of revocation.