Civil and Commercial Perspective... Analysis of the validity of the husband and wife's property agreement.
Published:
2023-03-30
Introduction Now, more and more people choose to get out of the siege of marriage, and the subsequent division of property has become a very thorny issue for both parties, especially when some people face divorce after a short marriage. At this time, if the property is divided by the other party Half of it is unfair to the other party. In order to avoid and reduce troubles and property losses, more and more couples will choose to pre-engage and post-marital property agreements during the marriage relationship to pre-dispose the property. So, what about the effect of the marital property agreement? Hot Spot Focus The legal property system applicable in our country is the joint system of income after marriage. The so-called "joint system of income after marriage" means that if both men and women get married, there is no explicit written agreement to change the property system, and there is no property other than the personal property belonging to one of the spouses as stipulated in the the People's Republic of China Civil Code, it is shared by the husband and wife. Therefore, in order to avoid property losses caused by divorce, one party often signs a marital property agreement with the other party. This property agreement is legally binding on both parties. A party to a movable property that is capable of immediate performance and has been delivered is not entitled to the right of avoidance. However, if the real estate is involved, the two parties fail to perform the corresponding transfer procedures in accordance with the agreement of the husband and wife property, and the agreement does not agree to be irrevocable, the agreement may face the risk of being revoked. judicial practice In practice, if one party gives his personal real estate to the other party through the husband and wife property agreement before marriage or during the marriage, but fails to register the transfer of ownership, in the event of divorce, one party claims to cancel the property agreement, while the other party claims to continue to perform, what should be done? In judicial practice, although there is no unified standard of adjudication, there are two different ways of adjudication. First, it is believed that the agreement on property between husband and wife, as long as it is the true intention of both husband and wife and does not violate the mandatory provisions of laws and administrative regulations, it should be recognized as an agreement that is valid and legally binding on both parties. The second is that the agreement between the husband and wife on the property is legal and valid, but according to the relevant provisions of the gift contract, "the donor can cancel the gift before the right to the gift property is transferred"; "if the donated property needs to go through registration and other formalities according to law, it shall go through the relevant formalities"; "the gift contract with the nature of social public welfare and moral obligations such as disaster relief and poverty alleviation, or the notarized gift contract, if the donor does not deliver the donated property, the donee may demand delivery." Agreements in the field of marriage and family often involve the terms of property ownership, and the conclusion, validity, revocation and modification of such agreements do not exclude the application of contract law. The author thinks The agreement between husband and wife to return the real estate to one party belongs to the contents of the property agreement, which is legally binding on both parties. However, there is a risk that the party involved may be revoked if it fails to register the change as agreed. 1. If one party agrees to own the real estate under the individual's name to the other party, but cannot handle the transfer registration because the loan has not been returned or fails to handle the transfer registration for other reasons, does the other party have the right to request continued performance? (1) For the property owned by one of the spouses, the individual shall have full ownership and may carry out the act of disposition on his own, although he may agree to give it to the other party. However, if the transfer is not processed and the agreement provides for an irrevocable clause, the autonomy of the parties' consciousness at the time of signing the property agreement should be respected and irrevocable. One party is obliged to assist the other party in the transfer registration procedures. (2) Combined with the understanding and application of relevant provisions in the judicial interpretation (I) of the Civil Code of the Supreme People's Court, the provisions of the Civil Code on the property relationship between husband and wife are special provisions, and the provisions of the Civil Code on Marriage and Family should be applied in priority. Therefore, the agreement on real estate agreement between husband and wife does not need to go through the formalities of property right change, but should be handled in accordance with the agreement. (3) The property between husband and wife is essentially a contract of marital property system, because the act is based on the identity relationship, and often has the purpose of maintaining feelings or living with each other permanently, so it should be presumed that the contract of marital property system is more reasonable, and the provisions of the agreed property system of husband and wife should be directly applied. 2, because China's current real property rights changes in principle to adopt the registration of effective doctrine, if not in accordance with the agreement to handle the transfer procedures, in the context of contract law, one party should enjoy the right of arbitrary revocation. The real estate given by one party to the other party in accordance with the property agreement may be revoked in accordance with the relevant legal provisions of the contract before the transfer procedures have been completed. China's real estate property rights change is based on the principle of registration effectiveness, therefore, has not yet gone through the real estate transfer procedures of the gift, the real estate donor can revoke the gift at any time, the people's court on the gift of the property party divorce claim to cancel the gift contract request should be supported. Legal provisions 1. Article 209, paragraph 1, of the the People's Republic of China Civil Code stipulates that the establishment, alteration, transfer and elimination of real property rights shall be effective upon registration in accordance with the law. 2. The Civil Code of the People's Republic of China provides that the giver may revoke the gift before the right to the gift property is transferred. The provisions of the preceding paragraph shall not apply to a notarized gift contract or a gift contract with the nature of public welfare and moral obligations such as disaster relief, poverty alleviation and assistance to the disabled, which shall not be revoked according to law. 3. Paragraph 2 of Article 464 of the the People's Republic of China Civil Code stipulates that the legal provisions on identity relations such as marriage, adoption, guardianship and other agreements shall apply; if there are no provisions, the provisions of this part may be applied by reference according to their nature. 4. Article 1065 of the the People's Republic of China Civil Code stipulates that men and women may agree that the property acquired during the marriage and the pre-marital property shall be owned by each, jointly or partly by each or partly jointly. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 1062 and 1063 of this Law shall apply. The agreement between the husband and wife on the property acquired during the marriage and the pre-marital property shall be legally binding on both parties.
Introduction
Now, more and more people choose to get out of the siege of marriage, and the subsequent division of property has become a very thorny issue for both parties, especially when some people face divorce after a short marriage. At this time, if the property is divided by the other party Half of it is unfair to the other party. In order to avoid and reduce troubles and property losses, more and more couples will choose to pre-engage and post-marital property agreements during the marriage relationship to pre-dispose the property. So, what about the effect of the marital property agreement?
Hot Spot Focus
The legal property system applicable in our country is the joint system of income after marriage. The so-called "joint system of income after marriage" means that if both men and women get married, there is no explicit written agreement to change the property system, and there is no property other than the personal property belonging to one of the spouses as stipulated in the the People's Republic of China Civil Code, it is shared by the husband and wife. Therefore, in order to avoid property losses caused by divorce, one party often signs a marital property agreement with the other party. This property agreement is legally binding on both parties. A party to a movable property that is capable of immediate performance and has been delivered is not entitled to the right of avoidance. However, if the real estate is involved, the two parties fail to perform the corresponding transfer procedures in accordance with the agreement of the husband and wife property, and the agreement does not agree to be irrevocable, the agreement may face the risk of being revoked.
judicial practice
In practice, if one party gives his personal real estate to the other party through the husband and wife property agreement before marriage or during the marriage, but fails to register the transfer of ownership, in the event of divorce, one party claims to cancel the property agreement, while the other party claims to continue to perform, what should be done?
In judicial practice, although there is no unified standard of adjudication, there are two different ways of adjudication. First, it is believed that the agreement on property between husband and wife, as long as it is the true intention of both husband and wife and does not violate the mandatory provisions of laws and administrative regulations, it should be recognized as an agreement that is valid and legally binding on both parties. The second is that the agreement between the husband and wife on the property is legal and valid, but according to the relevant provisions of the gift contract, "the donor can cancel the gift before the right to the gift property is transferred"; "if the donated property needs to go through registration and other formalities according to law, it shall go through the relevant formalities"; "the gift contract with the nature of social public welfare and moral obligations such as disaster relief and poverty alleviation, or the notarized gift contract, if the donor does not deliver the donated property, the donee may demand delivery." Agreements in the field of marriage and family often involve the terms of property ownership, and the conclusion, validity, revocation and modification of such agreements do not exclude the application of contract law.
The author thinks
The agreement between husband and wife to return the real estate to one party belongs to the contents of the property agreement, which is legally binding on both parties. However, there is a risk that the party involved may be revoked if it fails to register the change as agreed.
1. If one party agrees to own the real estate under the individual's name to the other party, but cannot handle the transfer registration because the loan has not been returned or fails to handle the transfer registration for other reasons, does the other party have the right to request continued performance?
(1) For the property owned by one of the spouses, the individual shall have full ownership and may carry out the act of disposition on his own, although he may agree to give it to the other party. However, if the transfer is not processed and the agreement provides for an irrevocable clause, the autonomy of the parties' consciousness at the time of signing the property agreement should be respected and irrevocable. One party is obliged to assist the other party in the transfer registration procedures.
(2) Combined with the understanding and application of relevant provisions in the judicial interpretation (I) of the Civil Code of the Supreme People's Court, the provisions of the Civil Code on the property relationship between husband and wife are special provisions, and the provisions of the Civil Code on Marriage and Family should be applied in priority. Therefore, the agreement on real estate agreement between husband and wife does not need to go through the formalities of property right change, but should be handled in accordance with the agreement.
(3) The property between husband and wife is essentially a contract of marital property system, because the act is based on the identity relationship, and often has the purpose of maintaining feelings or living with each other permanently, so it should be presumed that the contract of marital property system is more reasonable, and the provisions of the agreed property system of husband and wife should be directly applied.
2, because China's current real property rights changes in principle to adopt the registration of effective doctrine, if not in accordance with the agreement to handle the transfer procedures, in the context of contract law, one party should enjoy the right of arbitrary revocation.
The real estate given by one party to the other party in accordance with the property agreement may be revoked in accordance with the relevant legal provisions of the contract before the transfer procedures have been completed. China's real estate property rights change is based on the principle of registration effectiveness, therefore, has not yet gone through the real estate transfer procedures of the gift, the real estate donor can revoke the gift at any time, the people's court on the gift of the property party divorce claim to cancel the gift contract request should be supported.
Legal provisions
1. Article 209, paragraph 1, of the the People's Republic of China Civil Code stipulates that the establishment, alteration, transfer and elimination of real property rights shall be effective upon registration in accordance with the law.
2. The Civil Code of the People's Republic of China provides that the giver may revoke the gift before the right to the gift property is transferred. The provisions of the preceding paragraph shall not apply to a notarized gift contract or a gift contract with the nature of public welfare and moral obligations such as disaster relief, poverty alleviation and assistance to the disabled, which shall not be revoked according to law.
3. Paragraph 2 of Article 464 of the the People's Republic of China Civil Code stipulates that the legal provisions on identity relations such as marriage, adoption, guardianship and other agreements shall apply; if there are no provisions, the provisions of this part may be applied by reference according to their nature.
4. Article 1065 of the the People's Republic of China Civil Code stipulates that men and women may agree that the property acquired during the marriage and the pre-marital property shall be owned by each, jointly or partly by each or partly jointly. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 1062 and 1063 of this Law shall apply.
The agreement between the husband and wife on the property acquired during the marriage and the pre-marital property shall be legally binding on both parties.
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