1、 Does the division of property between husband and wife directly transfer ownership in a divorce agreement?

No, you need to go through change registration to have a change in property rights. The following precedents are helpful for analysis, Supreme People's Court (2021) No. 2847: "After review, our court believes that the house in question was purchased during the marriage between Huang Aiju and Chen Yuguang, and was originally their joint property. Although the divorce agreement between Chen Yuguang and Huang Aiju stipulates that the house in question belongs to Huang Aiju, the divorce agreement is only an internal agreement between the two parties, and does not have the legal effect of directly causing changes in the property rights of the house." (2021) No. 7090 of the Supreme Law and People's Republic of China: "The divorce agreement signed by Deng Lihong and Li Ge states that the house involved in the case belongs to Li Jingyuan. Although the agreement on the house involved in the divorce agreement does not directly have the legal effect of changing the property rights, the house involved in the case is the common property of the husband and wife during the marriage relationship between Deng Lihong and Li Geyuan. When the marriage relationship is dissolved, both parties agree that the house involved in the case belongs to their son Li JingyuanIt has a life support function. "Li Jingyuan has the right to request that the ownership change of the house involved be registered in his name." Both support this view, but the opposite party has the right to request that the ownership change of the house be registered in its name. 

2、 Can the agreement on the ownership of immovable property in a divorce agreement resist enforcement?

Yes, when the agreement on the ownership of immovable property in the divorce agreement cannot result in a change in property rights, and the rights enjoyed on immovable property other than ownership are superior to the creditor's rights of the applicant for enforcement, the enforcement of immovable property can be excluded. The following conditions need to be met: (1) In terms of the formation time of rights, the divorce agreement is agreed to be earlier than the formation time of the applicant's creditor's rights; (2) In terms of the nature of rights, the parties to the real estate agreed upon in the divorce agreement have the right to request a change of registration, and there is only one item left for them to enjoy full ownership. As the general liability property of the person subjected to enforcement, the real estate cannot compete against claims arising from the divorce agreement when the person applying for enforcement only enjoys ordinary monetary claims; (3) In terms of social value, the real estate agreement in a divorce agreement may involve one party's basic survival rights. If it cannot be proven that there is malicious collusion or debt evasion, it should also be superior to general creditor's rights in terms of social value. 

3、 In the divorce agreement, it is agreed that "joint property or personal property shall be given to the husband or wife". Can we retract before transfer?

"Cannot be revoked. The provisions on the division of property in a divorce agreement or the agreement reached by the parties on the division of property due to divorce are legally binding on both men and women.". "If a man and a woman renege on the issue of property division within one year after the divorce agreement is reached, and request a change or revocation of the property division agreement, and if the people's court, after hearing the case, finds no fraud, coercion, or other circumstances in the conclusion of the property division agreement, it shall dismiss the litigant's claim according to law.". 

4、 Can the agreement on the ownership of the house to the children be reneged on?

No, because the agreement on the ownership of the house to the children in the divorce agreement belongs to a gift. 

The conditions for the establishment of a gift: A gift is a promissory contract, and the establishment needs to meet the following requirements: first, the donor donates the gift property to the recipient free of charge; The second is that the recipient agrees to accept the gift. As for adult children, based on the blood relationship between parents and children, in practice, as long as there is no indication of non acceptance, a gift is established; "The legal representative of a minor child is his or her parents, who indicate the gift and accept the gift on behalf of the minor child based on the legal agency relationship. The gift contract is established.". 

Reasons for not being able to retract: The gift to children in the divorce agreement is a gift of a moral obligation and cannot be arbitrarily revoked. According to Article 658 of the Civil Code, "gift contracts that are legally irrevocable and have the nature of public welfare and moral obligations such as disaster relief, poverty alleviation, and disability assistance", both spouses, based on the reason for terminating their identity relationship, donate jointly owned or personal property to their children, which is essentially a conditional and purposeful gift and has a moral obligation nature, even if the property has not been changed and registered in the name of the child, And shall not be arbitrarily revoked. However, it does not directly have the effect of a change in property rights. Children have the right to request their parents to register the change in property rights in their own name. 

5、 After an agreed divorce, can the "divorce agreement" be signed again to change the property agreement in the original agreement?

This agreement is not a "divorce agreement" and is permitted in principle, but whether it can be changed depends on the circumstances. 

"A" divorce agreement "that is signed again after the dissolution of the marriage relationship, because both parties have no marriage relationship at this time, only changes are made to the content of the agreement signed again, such as the custody relationship, visiting rights, property ownership, etc. The agreement without an identity relationship is not a divorce agreement.". "The change in property ownership is limited to the rights that both parties still enjoy at the time of the change, and it is not allowed to dispose of the property that others have rights to. For example, the registration of" the division of property between husband and wife in the divorce agreement "has been changed, and the" agreement on the ownership of property to children in the divorce agreement "in the above paragraph, which is a gift of a moral obligation nature, cannot be arbitrarily revoked. In this case,", The original divorce agreement cannot be changed by agreement. 

6、 The Legal Consequences of "No Joint Property" Agreed in the Divorce Agreement

There are three types of understanding: first, during the duration of the marriage relationship, no common property has been acquired and no property can be divided; The second is to acquiesce in the state of ownership of property at the time of divorce, which should be considered as having disposed of the property under their respective names, that is, the property under their own names belongs to individuals; The third is that both parties have common property, but it is not divided in the divorce agreement, which requires separate division after divorce. The key to distinguishing between the latter two types of agreements is whether the parties have an intention or behavior to divide the property after divorce. The following precedents are helpful for analysis: 

Division not supported: Shanghai Second Intermediate People's Court (2016) Hu 02 Min Zhong No. 8255: "If both parties have confirmed in the divorce agreement that there is no common property division, it shall be deemed that the property under their respective names has been disposed of, and the property ownership status at the time of divorce is defaulted. This court agrees with this view in the first instance. Moreover, the property that Mr. Lu applied for division in this case is not objectively indivisible or missing when both parties signed the divorce agreement, nor is it the property that both parties agreed to separate separately"Therefore, Lu Moumou claimed that the joint property of the couple in dispute in this case was not actually divided at the time of the agreed divorce, which lacked factual basis and ran counter to the divorce agreement signed by both parties, without legal basis." 

Support for segmentation: Beijing Third Intermediate People's Court (2019) Jing 03 Min Zhong No. 13909: "In this case, based on the evidence submitted by both parties, it can be confirmed that the purchase of House 102 is a joint expression of intent by both parties. Both parties participated in the signing of the contract, the payment of the purchase price, the decoration of the house, and the common residence of the house. During and after the purchase of the house, both parties still considered each other as husband and wife and remarried. The court believes that taking into account the circumstances of this case, House 102 should be recognized as both husband and wife." Common property. "Although the divorce agreement signed by the two parties at the time of their second divorce agreed that there would be no common property after marriage, the agreement is not clear and specific. Considering the circumstances of this case, it is not appropriate to assume that the two parties have divided the 102 # house." 

Divorce Agreement (Model) (Transferred from Hunan High Court)

Divorce Agreement (Model) (Swipe down to view)

Male: ××，××××year××month××Date of birth. live××city×××road×××No., ID number No.: ××××××××××××××××××。

Female: ××，××××year××month××Date of birth. live××city×××road×××No., ID number No.: ××××××××××××××××××。

Both men and women on××××year××month××Day on××The Civil Affairs Bureau (Office) handles marriage registration procedures. 

Due to the incompatibility between the two parties, the couple's feelings have broken down and they cannot continue to live together, making it impossible for them to reconcile. Now, both parties have reached the following agreement on voluntary divorce: 

1、 In order to avoid reckless and impulsive divorces and maintain family stability, both men and women negotiate on an equal footing and voluntarily divorce. Both parties promise that within 30 days from the date of receiving the divorce registration application from the marriage registration authority, if either party is unwilling to divorce, they can withdraw the divorce registration application. "Within 30 days after the end of the cooldown period, both parties shall personally apply to the marriage registration authority for a divorce certificate.". 

2、 Both parties promise that there will be no situations such as domestic violence that are not suitable for a calm period of divorce. Voluntary divorce is the result of both parties' calm thinking and proper decision-making, which can not only ensure both parties' freedom of divorce, but also ensure both parties to make correct decisions. Both parties have comprehensively considered and made relevant plans to protect the interests of minor children and other family members of both parties. 

3、 Both parties promise that they have fulfilled their truthful, proper, and complete obligation to inform before marriage, and there are no circumstances where the underlying marriage relationship is invalid or revocable due to concealing major diseases before marriage. 

4、 Child rearing

1. Male and female on××××year××month××Birth of a child/daughter on the first day of the lunar month, named after×××，ID number: ××××××××××××××××××。

2. Both parties agree that the child××Raised by the man/woman and paid a fixed monthly maintenance fee by the man/woman×××Yuan per month××Pay in full before the 15th, until the child has completed a college degree, and the male/female partner agrees to increase the fixed maintenance fee every 3 years××%。Both parties shall bear 50% of the child's medical expenses, tuition fees, class registration and tutoring fees, and the male/female party shall pay within one month after the male/female party presents the above fee bills. 

(Note: Attention should be paid here to clarify the fixed maintenance fee and the maintenance fee for large expenses. In addition, currently, many children will attend college or even graduate students, and the payment period of maintenance fee is recommended not to take adult education as the standard, but to complete a special education as the standard, otherwise the court generally supports the child's adult education.)

3. The male/female partner can visit the child at any time without affecting the child's learning and life. But it should be done in advance××Inform the woman of the specific location and transfer method. If the child is larger than××At the age of, one should seek the child's opinion. With the child's consent, the number and duration of visits can be appropriately extended, but the maximum length should not exceed××Days. If the party raising the child hinders the other party from exercising the right of visitation without justifiable reasons, it shall bear××××damages. 

4. Currently present××××The money and pure gold pendants and other jewelry in the account belong to the child. On the date of signing this agreement, the bank card and related items should be handed over to the man/woman for safekeeping. The man/woman guarantees that they should be used for the benefit of the child and should not be misappropriated without authorization. 

5、 Division of property

1. [Deposit] Since the marriage relationship between the two parties has existed, they currently have a joint deposit××××RMB, current male account××××RMB, female account××××Both parties agree that the man/woman shall pay the man/woman within 3 days from the date of signing this agreement××××Yuan. 

2. [Property] Both parties have joint property located in the××road××residential quarters××A set of commercial housing with a value of RMB×××××RMB 10000, which is now negotiated to be owned by the man/woman, and the man/woman will pay the man/woman a one-time cash payment×××××RMB ten thousand, which shall be paid after the signing of this agreement××Pay off within days; The household appliances and furniture in this room belong to the man/woman. 

The owner's name change procedure for the property certificate shall be handled within one month after the divorce. The man/woman must assist the other party in handling all the procedures for the change, and the transfer fee shall be borne by the owner of the property. 

(Note: There are many forms of real estate division. Generally speaking, if there is only one house, it is usually for one party to take the house and the other party to provide monetary compensation, or to sell the house and split the house payment. Note that if the mortgage on the house has not been repaid, the bank or real estate registration center may be unable to handle the procedures for renaming the property right certificate. It is recommended to consult the bank and local real estate registration in advanceCenter. If it is not possible to make changes, both parties shall negotiate to extend the registration procedures for property rights changes or divide the property in other ways. 

In addition, it is currently relatively popular to give real estate to a child, and handle the transfer procedures after the child reaches adulthood. Before the child reaches adulthood, the party who raises the child enjoys the right to reside. This division is feasible and the gift is generally irrevocable. "However, the child's adult cycle is long, and after the other party has a new life partner, they often live together in the house, which can easily cause disputes. Therefore, this division method should be carefully considered, but there should be detailed agreements on the right to use the house." 

3. [Account] The male/female partner should be registered at××Move out of the account within months. 

(Note: After divorce, the household registration can be moved to the location of the property or transferred to immediate family members, usually with the "Household Register", "Divorce Certificate", and "Real Estate Ownership Certificate" Valid certificates such as kinship certificate or police investigation certificate should be handled at the window of the local police station where they moved in. "If one of the parties is unwilling to hand over the original household registration book, and if it is not effective after being mobilized and persuaded by the police station, the procedures for household division or transfer can be handled according to the judgment or mediation letter, and the date and reason for household division shall be indicated on the household registration book." 

4. [Vehicle] Both parties currently have××A car with a license plate number of××××××，Registered in the name of the man/woman, the vehicle will be owned by the man/woman after divorce, and the man/woman will make a one-time compensation×××××RMB to the other party as of the date of signing this agreement××The payment shall be made within days, and the man/woman shall cooperate with the other party to handle the change registration procedures within one month after receiving the compensation. 

(Note: Due to the significant depreciation of second-hand vehicles sold, it is recommended to adopt a split method in which one party takes the vehicle and the other party provides appropriate monetary compensation. If the vehicle registrant takes the vehicle, there is no need to change the procedures, and this clause can be simplified.)

5. [Equity] Held by the male/female party×××company××%The equity shall remain the property of the man/woman after divorce, and the man/woman shall pay RMB to the man/woman accordingly×××Compensation of $, starting from the date of receipt of the divorce certificate by both parties××One-time payment within days. 

6. [Virtual Property] The network account with property rights and interests in each network platform belongs to the man/woman, and can continue to use the original name. Each quarter or year, the other party shall be paid no less than the corresponding income yuan, and at the end of each year××%Dividend to the other party. 

(Note: Article 127 of the Civil Code clearly states that online virtual property also belongs to property. Bitcoin, Alipay accounts, various equipment in online games, online stores, and online property are often acquired through the labor of the holder, the payment of real property (such as buying game cards), and market transactions (such as buying and selling game equipment between players), "Having general commodity attributes, they should be equally protected." 

6、 Debt segmentation

Both parties confirm that the following debts are joint debts of the husband and wife: 1××××year××A monthly loan of xxx million yuan from XXX; Both parties shall bear 50% of the debts jointly incurred by the above couple upon maturity. If the remaining debts are discovered in the future, the debts in the name of the other party shall be borne by themselves, regardless of the other party. "If the male/female party assumes responsibility due to external borrowing by the male/female party, one party can recover the full amount from the other party at any time after the payment is completed. If the payment is overdue, the annual interest rate shall be applied." ××%Pay interest. 

(Note: The Civil Code clearly stipulates the scope of joint debts between husband and wife. Therefore, in principle, personal debts are no longer presumed to be joint debts of the husband and wife, and their respective debts generally do not need to be borne by the other party at present. However, to avoid actually being joint debts of the husband and wife, but being owed in the name of an individual, it is agreed in the agreement that the debts are joint debts of the husband and wife, which can prevent one party from paying the debts alone.)And cannot be recovered.)

7、 No transfer of concealed property



The property division of this agreement is based on the above listed property. "Neither party shall conceal, misrepresent, or transfer marital common property or premarital property.". If either party conceals or misrepresents property other than those listed above, or transfers or evades property within two years prior to signing this agreement, the other party shall have the right to obtain the full share of the property concealed, misrepresented, or transferred by the other party upon discovery, and shall be held responsible for the concealment, misrepresentation, or transfer of property. The party who misrepresents, transfers, or conceals shall have no right to divide the property. 

8、 Liability for breach of contract

If either party fails to fulfill the payment obligation within the time limit specified in this agreement, the annual interest rate shall be applied××%Pay liquidated damages and compensate the other party for other losses incurred as a result (including but not limited to legal fees, attorney fees, notarization fees, appraisal fees, evaluation fees, travel expenses, etc.). 

9、 Agreed Jurisdiction

"If any dispute arises during the execution of this agreement after its entry into force, both parties shall resolve it through consultation. If consultation fails, either party may file a lawsuit in the XXX People's Court.". The agreed content of the agreement shall be in printed form, and any alteration or writing shall be invalid except for the signed part. 

10、 Number of copies and effectiveness of the agreement

This agreement is made in triplicate, effective from the date of issuance of the "Divorce Certificate" by the marriage registration authority, with each party holding one copy and submitting one copy to the marriage registration office for filing. 

Male: Female: 

××××year××month××day