A man divorced with his wife after ¡°having an affair¡±, chose to ¡°abandon the community property¡± and gifted the share of the common house property to his wife and child. 15 years later, he went back on his word and requested to recover the property. Can a divorce agreement be ¡°reversed¡±? Under what circumstances can a divorce agreement be revoked?

[Case Review]

In 2007, Mr. Zhao divorced with his wife, Ms. Zhang by agreement due to marital infidelity, their son, although an adult, was frail and sick and required long-term care of the mother. Both parties agreed in the divorce agreement that Mr. Zhao voluntarily abandoned his own 50% share of the house property, and gifted it to Ms. Zhang and her son. A few years later, the two parties did not handle the registration formalities for transfer of house ownership.

In 2013, the son died due to illness. Before his death, he made a will which says that his share in the aforementioned house property and other properties are all left to his mother Ms. Zhang.

In 2022, Mr. Zhao, whose later years of life were not happy, met with Ms. Zhang, hoping that Ms. Zhang could return that part of the house property back to him, so that he could spend his remaining years in comfort. Ms. Zhang angrily refused and sued to Shanghai Hongkou District People's Court (hereinafter referred to as the ¡°Hongkou District People's Court¡±), requesting confirmation of full property rights to the house, and Mr. Zhao's cooperation in registering the change of ownership.

Mr. Zhao believed that the divorce agreement was a contractual relationship, and the limitation of action of two years had expired. After the death of his son, the change of ownership was not registered, so that the gifting act was not completed, and he had the right to request the revocation of the gifting.

[Case Study]

After trial, Hongkou District People's Court concluded that: first, this case is a dispute for confirming the ownership of property rights, and the request for assisting in obtaining a certificate is of property right nature, for which the limitation of action does not apply; second, the divorce agreement has identity and property attributes, is made for the purpose of divorce of the two parties, and is a holistic legal instrument (not purely unilateral gift) that cannot be revoked at will; third, the will made by Mr. Zhao (son) is legal and valid. Considering the relevance of the will and the house, the court handled the ownership confirmation and inheritance by will together, and made a judgment that the above property belongs to Ms. Zhang, and Mr. Zhao should cooperate in handling the registration formalities for the change of house ownership.

In recent years, there are more and more couples who sign a divorce agreement for peaceful divorce. Sometimes, in order to achieve a quick divorce, one party chooses to alienate his/her property rights, and voluntarily signs a divorce agreement involving ¡°abandonment of community property¡±. This case is a typical dispute involving the reversal of ¡°abandonment of community property¡±, and focuses on whether the limitation of action for Ms. Zhang's claim has expired, and whether Mr. Zhao can revoke the gifting in the divorce agreement.

I. The limitation of action for the division of the common house property

According to the Civil Code of the People's Republic of China, the limitation period for civil litigation is generally three years, unless otherwise provided by law. The provisions of limitation of action are not to encourage the debtor to delay the performance of obligation, or encourage the debtor to reap without sowing or not to perform the debt, but urge the parties to actively exercise their rights through appropriate limitations, and stabilize the relevant civil rights and obligations, in order to maintain stable social relations and order.

In this case, the two parties had disposed of the common house in the voluntary divorce agreement, Ms. Zhang requesting to divide the common property not divided at the time of the divorce is the exercise of the right to claim in rem, for which the limitation of action should not apply.

II. The divorce agreement is legal and valid, and should not be revoked without just cause

In order to determine the effectiveness of ¡°abandonment of community property¡± in the divorce agreement, multiple factors should be taken into account, such as the capacity for act of husband and wife when signing the agreement, whether it is the true will, whether there are other illegal acts or acts contrary to public order and good morals. If both parties have the subjective conditions to sign the divorce agreement, voluntarily sign and accept the content of the agreement, and the agreement does not violate the restrictive provisions, the agreement should be recognized as legal and valid and be legally binding on both parties.

Divorce agreement is general solution made by the husband and wife in consideration of various factors, which settles the dissolution of marriage, child support, common property division, common credit and debt disposal, and other personal and property issues. It specifies the obligations both parties promise to fulfill in exchange for consent to divorce, and the terms affect each other and constitute a unified whole. If the divorce agreement stipulates that the property is given to the other party or common children, which is usually the prerequisite and condition with the dissolution of marriage, child support, and common property division. Once the condition of registered divorce is met, the commitment of ¡°abandonment of community property¡± will take effect. This agreement does not conform to the gratuitous nature of the gift contract, and the right of arbitrary revocation for general gift contract shall not apply.

III. The divorce agreement shall be signed with caution to avoid repentance behavior due to ¡°act on impulse¡±

Marriage is not easy, and divorce is no joke. Once decided to divorce, the couples must prudently consider child support, property division and other issues before signing divorce agreement, and try to avoid repentance after signing the divorce agreement. Repentance due to ¡°act on impulse¡± not only goes against the principle of good faith, but also will not be supported by law. In addition, once the divorce agreement is signed successfully, the division of related properties should be handled as soon as possible to avoid new disputes and conflicts in the future.

[Relevant Legal Provisions]

Civil Code of the People's Republic of China

Article 188 The limitation period for a person to request the people¡¯s court to protect his civil-law rights is three years, unless otherwise provided by law.

Unless otherwise provided by law, the limitation period begins from the date when the right holder knows or should have known that his right has been harmed and that who is the obligor. However, no protection to a right is to be granted by the people¡¯s court if 20 years have lapsed since the date when the injury occurs, except that the people¡¯s court may, upon request of the right holder, extend the limitation period under special circumstances.

Article 196 The limitation period does not apply to the following rights to claim:

(1) a claim for cessation of the infringement, removal of the nuisance, or elimination of the danger;

(2) a claim for return of property of a person who has a real right in an immovable or a registered movable property;

(3) a claim for payment of child support or support for other family members; or

(4) any other claims to which the limitation period is not applicable in accordance with law.

Article 234 Where a dispute arises over the attribution or contents of a real right, an interested person may request for confirmation of the right.

Article 1123 After succession opens, it shall be processed as an intestate succession, or where there is a will, as a testate succession by the successor(s) or donee(s)-by-will; or be processed in accordance with the agreement on testamentary gift for inter vivos support, where there is such an agreement.

Article 1134 A holographic will is one written by the testator¡¯s hand and signed by him, specifying the year, month, and day of its making.

(Case compiled by: Cao Yanmei, Zhu Yonghao, Yu Yue, Hongkou District People's Court)