Unexpectedly, the property agreement stipulates that the house belongs to you, and it may not be yours at the time of the divorce!
After many follow-ups, one night, Xiao Rong was accompanied by a few friends Finally, the husband, Xiaoqiang, was caught and raped in bed in a hotel, and he was caught.
In order to have a guarantee in the future, Xiao Rong personally drafted a "property division agreement" and asked her husband Xiaoqiang to sign on the spot. Handprints. The agreement is as follows:
Xiao Rong is holding such a property Agreement, I thought I could rest easy.
But never expected, I signed itLess than a month after the agreement, the husband continued to cheat!
Xiao Rong had to file for a divorce and asked Xiaoqiang to sign such a divorce agreement:
After signing the divorce agreement, Xiaoqiang thought about it and thought It’s not the right way. If you divorce like this, you’re almost leaving home.
So, Xiaoqiang dragged on not going to the Civil Affairs Bureau to do the divorce.
Xiaorong had to sue to the court. Everyone thought Xiao Rong would have a steady chance of winning! But things are not that simple!
When Xiaoqiang went to court, he played his shameless skills, arguing:
The first property agreement was signed at the scene of the rape. The woman’s family put us under house arrest in the hotel. At that time, the two parties clamored for a divorce., The woman took out this agreement, and I signed it without taking it seriously. After signing, I found out that something was wrong, not a divorce agreement, so I quickly signed a divorce agreement. Therefore, both agreements are for the purpose of divorce and are invalid. Otherwise, how could I be so stupid to sign such an unequal treaty. At that time, I was thinking about getting a divorce soon.
The judge asked, since you said you were under house arrest, did you call the police?
Xiao Rong said she called the police. Xiaoqiang said that the mobile phones were all held by them and there was no way to call the police.
In addition, Xiaoqiang’s lawyer also put forward a defense:
The first set in the agreement The house was originally Xiaoqiang’s pre-marital property, and it was agreed to be a gift to the woman. Now Xiaoqiang has gone back, and the agreement is of course invalid.
At this time, many questions are coming!
Question 1. Why is an agreement for divorce invalid?
Article 14 of the "Marriage Law Judicial Interpretation III" stipulates that the parties reached a property division agreement on the condition of registration of a divorce or a divorce in a people’s court, if the parties agree If the divorce is unsuccessful and one party repents in the divorce proceedings, the people’s court shall determine that the property division agreement has not taken effect, and shall divide the joint property of the husband and wife in accordance with the actual conditions.
Accurately speaking, a property agreement that is conditional on divorce by agreement, if the divorce by agreement fails, can go back!
In layman's terms, if the spouse intends to break up peacefully, agree to divorce by agreement (go to the Civil Affairs Bureau or the courtDivorce), and signed a property division agreement. If one party disagrees in the future, the lawsuit goes to the court and becomes a divorce lawsuit. In this case, the previously signed "Property Division Agreement" will not be counted and invalid!
This is why Xiaoqiang has repeatedly emphasized that both agreements are for divorce.
Question two, how to distinguish these two protocols?
According to Article 19 of the Marriage Law, both spouses can agree on the ownership of the property before marriage, and can agree on the ownership of the property during the marriage relationship, such as all property AA System (you are yours, I am mine, all ministries are related), part of the property AA system (part of the property is distinct, others belong to common property), all properties are jointly owned.
In fact, it's just a situation of "dividing property but not family" between husband and wife! Generally speaking, in these three situations, this kind of "marital property division agreement" has a high probability:
1. When the man is caught and raped ;
2. When the woman feels that the marriage is on the verge of breakdown;
3. Both husband and wife Consciously distinguish between husband and wife property, That is, "divide property but not family"
The essential difference between these two agreements is:
1. The content of the "divorce agreement" can reflect the meaning of divorce between the two parties.
The "divorce agreement", as the name implies, is for the divorce agreement. Reflecting the intention of divorce between the two parties, there are generally clauses for voluntary dissolution of the marriage relationship.
2, the two have different agreements on the effective conditions
If it is a "divorce agreement" , Generally there are clauses similar to "to be effective after both parties sign and go through the divorce procedures by the marriage registration authority". And if it is a "marital property division agreement", it will not be so agreed. The most common form is "this agreement takes effect on the date of signing by both parties".
3. Don’t be confused by the name of the protocol, the core is still content
Remember a little, no matter What is the name of the agreement is not a matter. The key depends on the content of the agreement you signed. The content determines the essence.
Question 3. Why did Xiaoqiang's lawyer say that the property agreement is invalid if the house is not transferred?
This is again the fault of "Judicial Interpretation III of the Marriage Law"!
No matter whether you have signed a property agreement or a divorce agreement, you cannot go back.
This "Judicial Interpretation III of the Marriage Law" came out, everything was messed up, nothing was counted!
According to Article 6 of the Judicial Interpretation III of the Marriage Law, 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. The gift is cancelled before the registration is changed, and the other party can go back at will!
So, does the man agree to the woman’s personal property before marriage, is it considered a gift?
The man agreed on the joint real estate in marriage asDoes the woman’s personal property count as giving her share to her?
The supreme law tends to think that this is also a gift! Before the transfer, you can go back at will!
In short, it seems that one party can take advantage of the other party’s property, and it seems that it can be installed in this article!
Question four, the marriage law is chaotic, what should we pay attention to when signing this type of agreement?
When signing the "marital division of property Pay attention to the agreement" (for compatriots who need to sign this kind of agreement, you have to study hard):
1. The name of the agreement, try to be able to It highlights the essence of the agreement. It is more perfect to include the word "marital"
Similar to "marital property division agreement"The kind of name is the best to avoid ambiguity and confusion.
2, the very beginning part of the agreement clearly indicates the nature of the "divided property within marriage"
If the drafter of the agreement has some knowledge of marriage law, you may wish to directly list Article 19 of the "Marriage Law", and then write "This agreement is based on the "Marriage Law" Article 19, the agreement is as follows..." and so on.
3, the agreement should not contain words or clauses such as "if divorce"
Of course, if there must be a clause such as "if divorce..." (such as the clause that the woman requires compensation if divorce), then it’s best to write it clearly. The conditions for the entry into force of this article are irrelevant to other terms in the agreement. If you write "If you get divorced, follow the agreement"Distribution of property", it may be dangerous.
4. In the agreement The lieutenant will clearly list the properties that you want to agree to belong to (such as by real estate, car, parking space, bank deposits, etc.) What property!
5. After signing the agreement, you must go through the transfer procedures in time or go to the notarization
to avoid the marriage law. This kind of unscrupulous remorse, transfer the account as soon as possible after signing the agreement, or go to the notary office to notarize the property agreement.
Because a notarized gift contract cannot be revoked, it is necessary to have this risk awareness. If you can go through the transfer procedures, it is best to go through the transfer procedures in time. Insured. Can't handleIf the transfer is made, then go to the notary office for notarization (regardless of whether the transfer is transferred or not, you can also go to the notarization), so that you can be regarded as holding the property agreed to you in the agreement firmly in your hand.
Of course, if you want the agreement to be seamless, don’t risk losing 1-2 houses just to save thousands of dollars in legal fees. Download an agreement to apply online.
Note: This article was first published by the Divorce Master (lihundashivip), a human-speaking and in-depth original marriage legal public account. Please contact authorization for reprinting. About the author: Xiong Chengxing, member of the Marriage and Family Legal Affairs Department of Guangdong Guangqiang Law Firm.
Source: A class of law