Family is the cell of society and an important foundation for social harmony. In recent years, with the increasing divorce rate and high housing prices, couples often request that one party add their name to their personal property before or after marriage for various purposes. Once the name registration is completed, the personal property immediately becomes the joint property of the couple. Therefore, the issue of property name addition has always been a troublesome problem for couples. In the popular TV series "Elite Lawyer", Jin Dong plays the male lead Robin Lawyer and his college classmate Lan Hong Lawyer. They have been in love for a long time, and before their wedding, the woman's mother proposed to add her name to the man's personal property. Due to different understandings of the meaning of adding the name, the two parties ended up having a falling out and breaking up! In addition, in the past, the application of relevant laws emphasized whether the registration of property name addition and change has been completed, and emphasized the legal effect of registration! If one party agrees to add a name but ultimately fails to complete the registration of the name change, and the giving party reneges, Article 658 (1) of the Civil Code can generally be applied to treat the commitment to add a name as revocable

On January 15, 2025, the Supreme People's Court issued the "Interpretation of the Supreme People's Court on the Application of the Marriage and Family Part of the Civil Code of the People's Republic of China (II)", which will be implemented on February 1, 2025. It has made breakthrough provisions on issues such as the provision of real estate between spouses, parents' contribution to the purchase of a house by their children after marriage, and the violation of the duty of fidelity by giving joint property to others. In particular, Article 5 of the new regulations (hereinafter referred to as "Article 5") has undergone significant changes compared to previous relevant legal provisions and judicial interpretations regarding the provision of real estate between spouses, thus bringing new challenges and opportunities to marriage and family lawyers.

1、 Interpretation of the Specific Content of the "Five New Regulations"

1. As long as there is a naming agreement between both parties, even if the naming registration is not completed at the time of divorce, the property can still be treated as joint property of the couple and divided!

According to the first paragraph of Article 5 of the New Regulations, before marriage or during the existence of the marriage relationship, if the parties agree to transfer and register the property owned by one party to the name of the other party or both parties, and the ownership of the property has not been transferred and registered at the time of divorce proceedings, and there is a dispute over the ownership or division of the property between the parties and no agreement can be reached through negotiation, the people's court may, based on the parties' litigation requests and considering factors such as the duration of the marriage relationship, cohabitation and the birth of common children, divorce fault, contribution to the family, and the market price of the property at the time of divorce, judge that the property belongs to one party, and determine whether the party who obtains the property should compensate the other party and the specific amount of compensation.

The above provisions highlight the agreement between both parties regarding the gift. As long as there is an agreement and the agreement is legal and valid, during the marriage, even if one party violates the agreement and does not cooperate with the registration process, in the event of divorce, based on various factors, the judge can still award the property involved to the non property registration party. This clause highlights the importance of "agreement" and reminds property owners not to take shortcuts and agree to allow the other party to add their name to their personal property. As long as they agree, especially when both spouses have lived together for a long time and have children, the law does not allow the promisor to revoke the agreement arbitrarily.

2. Even if the property name is added, the party being added may not necessarily receive half of the property's share!

According to the second paragraph of Article 5 of the New Regulations, before marriage or during the existence of a marriage relationship, if one party transfers and registers all of their property to the other party or both parties, and there is a dispute over the ownership or division of the property and no agreement can be reached through negotiation in divorce proceedings, if the marriage relationship has existed for a short period of time and the giving party has no major fault, the people's court may, based on the litigation request of the parties, rule that the property belongs to the giving party. Taking into account the purpose of giving, the situation of living together and conceiving common children, the fault of divorce, the contribution to the family, and the market price of the property at the time of divorce, the court may determine whether the party who obtained the property should compensate the other party and the specific amount of compensation.

The above regulations stipulate that after the giving party adds the name of their spouse to the property, the named party may not necessarily receive half of the added property in the event of divorce. The court will make a judgment on the ownership of the property and the amount of compensation based on various factors, especially the length of the marriage, the status of having common children, and the reasons for divorce. The proportion of about 25% of the property obtained by the named party is a basic reference ratio for many court judgments! The law does not allow anyone to use marriage as a tool for wealth seeking! In recent years, the so-called "fishing for women" in society have obtained the man's name on his huge property through a brief marriage. After the name was successfully added, they quickly divorced and then repeated the same method again and again, causing extremely negative social impact and seriously violating the socialist core values. The "5 new regulations" this time are completely aimed at putting an end to this unhealthy trend!

3. The "New Regulations Article 5" clarifies the revocable situations after the completion of property naming, giving the giving party more remedies!

According to the third paragraph of Article 5 of the New Regulations, if the giving party has evidence to prove that the other party has committed fraud, coercion, seriously infringed upon the legitimate rights and interests of the giving party or its close relatives, or failed to fulfill the obligation of supporting the giving party, and requests the revocation of the civil legal acts stipulated in the preceding two paragraphs, the People's Court shall support it in accordance with the law. The incident between Su Xiangmao and Zhai Xinxin, where Zhai Xinxin, as a "fishing girl", obtained Su Xiangmao's two properties and nearly ten million yuan in other assets through marriage, if she had not been greedy and extorted, ultimately forcing Su Xiangmao to jump off a building and die, she would not have ended up not only losing all her money but also being imprisoned. This satisfying verdict was actually achieved by the increasing social impact of the case after it was reported by the media, and Su Xiangmao's relatives were able to fight for it! After the implementation of the "New Rule 5", more situations will be given for the giving party to revoke gifts, so that the idea and action of linking marriage and wealth will no longer receive legal support!

2、 The impact of the "5 new regulations" on trials

1. Article 5 of the new regulations grants judges greater discretion

The "New Rule 5" requires judges to no longer solely determine property ownership based on property registration, weakening the effectiveness of property registration. Instead, judges are required to comprehensively review various specific circumstances of the case, such as the length of the marriage relationship, the situation of living together and having children, the fault of divorce, the contribution of both parties to the family, including economic contribution, household chores, child rearing, and other aspects, as well as the market price of the property at the time of divorce, in order to determine the specific amount of property ownership and compensation. This gives judges greater discretion in case adjudication and also puts higher demands on their comprehensive quality, judicial experience, and fairness and integrity.

2. The "New Rule 5" elevates the importance of the purpose of giving to a higher level

The "New Rule 5" requires judges to thoroughly investigate whether the real purpose of the transfer registration of the property to the other party or both parties is based on the long-term stability of the marriage, expression of love for the other party, the need for family living together, or other specific reasons! If the giving is conditional or has a specific purpose, the judge may make a judgment in favor of the giving party based on the specific circumstances when the conditions are not met or the purpose is not achieved.

3. Article 5 of the new regulations requires judges to make judgments that comprehensively balance the interests of both parties

The "New Rule 5" requires judges to carefully weigh the interests of both parties in the trial, protecting the legitimate rights and interests of the donor and preventing the other party from obtaining property benefits through improper means, while also considering the recipient's contributions and contributions in the marriage, ensuring that the judgment result is fair and reasonable, and maintaining the stability of the marriage and family relationship. The law cannot make the one who is wholeheartedly devoted to the family both sad and financially damaged, nor can it make marriage a tool for obtaining improper benefits!

3、 The opportunities and challenges brought by the "5 new regulations" to marriage lawyers

1. The "5 new regulations" break the traditional concept of equal division and provide lawyers with more agency space

Traditionally, once the property name is added, divorce often tends to divide the shares equally. But the "New Regulations Article 5" clearly stipulates that even if the registration is completed by adding a name, it is no longer simply a matter of dividing the property in half, but rather a comprehensive consideration of multiple factors to determine the ownership of the property and the amount of compensation. This breaks the previous simple property division model, requiring lawyers to abandon their inherent thinking, analyze the case in more detail, and provide clients with more accurate legal opinions. This also provides more professional representation space for marriage lawyers in such cases.

2. The "5 new regulations" put forward higher requirements for lawyers' evidence collection work

Due to the fact that judges can determine whether to compensate the other party for the property and the specific amount of compensation based on the parties' litigation requests, combined with the purpose of giving, taking into account factors such as marital cohabitation and the birth of common children, divorce fault, contribution to the family, and the market price of the property at the time of divorce. This requires lawyers to pay attention to comprehensively collecting evidence related to various factors, such as chat records, emails, written agreements, etc. that prove the purpose of adding names to the property; Proof of income, bank statements, household expenditure vouchers, etc. that demonstrate the contribution of both parties to the family; Photos, videos, witness testimonies, etc. that prove the living conditions of both parties during the existence of the marital relationship; Evidence of infidelity that proves the other party's wrongdoing, records of domestic violence reports, hospital diagnosis certificates, and so on. Lawsuit is about evidence, and subsequent marriage and family cases will demand higher professionalism from lawyers. Marriage and family cases may seem like there is no threshold for lawyers, but in reality, the threshold is very high!

3. The "New Rule 5" requires lawyers to first clarify the true purpose of the property provided by the case provider, and to provide evidence of the key issues of concern to the judge in advance. Only then can they influence the judge's trial thinking and judgment results during the case representation process.

Lawyers need to have a deep understanding of the purpose, process, and various details of the granting party's operation of property name addition or transfer registration, which may involve various factors such as the parties' true intentions, marital status, and family relationships. These are crucial for determining the ownership and compensation amount of the property. Only by identifying the key issues that the judge is concerned about and organizing all evidence into a complete chain of evidence can lawyers persuade the judge to support the client's lawsuit request.

4、 Several suggestions for clients who plan to add names to their properties

1. Before adding a name, it is important to clarify the purpose and legal consequences of the addition

The act of adding a name to a property is legally classified as a gift from one party to the other. Although the Supreme People's Court has changed the word "gift" to "give" in its interpretation this time, there is currently no official explanation for this modification. However, I believe that the direct consequence of adding the name of the other party to a personal property is that the personal property will become joint property of the couple due to the addition. Before making a decision, the client must clarify the purpose of adding the name, such as to express love, enhance the other party's sense of security, or for other reasons; At the same time, it is important to be aware that once an individual's property is registered, in the event of divorce or other circumstances, the division of property will follow the principle of dividing joint property.

2. Before adding someone, it is necessary to have frank communication and fully negotiate before making a written agreement. Once the agreement is reached, it must be followed in good faith!

The author suggests that both parties should have frank communication regarding the matter of adding names. Real estate may be the largest asset in a lifetime for ordinary people. Before making the addition, one party should ensure that they understand the purpose of the addition, the future ownership changes of the property, and the possible consequences. A decision made after knowing the legal consequences is a prudent decision. Both parties can make decisions after reaching consensus on various issues, which not only prevents disputes after marriage, but also screens out unsuitable marriage partners. In addition, after both parties have fully discussed and made a decision to add names, it is recommended that both parties sign a written agreement that clearly defines their rights and obligations.

3. The donor should consider the financial situation of the family comprehensively, especially the remarriage and name addition

Before deciding to add a name, the donor needs to consider the overall financial situation of the family. If the family has a significant debt burden, adding a name may have an impact on the disposal of the property and debt repayment, and must be carefully considered. In addition, it is necessary to consider various possible situations that may arise in the future, such as children's follow-up education, personal pension security, etc. The granting party should ensure that the act of adding names will not have a significant adverse impact on the financial stability and personal life of the family, nor will it affect the realization of the creditor's rights of good faith creditors. Especially in remarried families where the other party strongly requests to add a name, it is even more important to be cautious!

The above suggestions from the author hope to help clients find a balance between asset preservation and a happy life between disposing of their important assets and entering into marriage, and select like-minded partners to spend their lives together!