If one spouse transfers money to a "mistress," does it constitute a gift? Can the legal spouse reclaim it?
Case review
Li, female, and Zhao, male, registered their marriage on August 14, 1996. During the marriage between Li and Zhao, Zhao developed an improper relationship with Wang, female. From 2015 to 2017, Zhao transferred a total of 390,000 yuan to Wang through the account of a third party, Chen, in 26 installments. On November 7, 2017, Wang transferred 100,000 yuan to Zhao.
Relevant legal provisions
1.
Article 106 of the Property Law of the People's Republic of China
[Bona fide acquisition] Where a person without the right to dispose of immovable or movable property transfers it to a transferee, the owner has the right to recover it; except as otherwise provided by law, the transferee acquires the ownership of the immovable or movable property if the following conditions are met:
(1) The transferee was in good faith at the time of the transfer of the immovable or movable property;
(2) The transfer was made at a reasonable price;
(3) The transferred immovable or movable property that requires registration according to law has been registered, and that which does not require registration has been delivered to the transferee.
If the transferee acquires ownership of immovable or movable property in accordance with the preceding paragraph, the original owner has the right to claim compensation for losses from the person without the right to dispose.
If a party acquires other real rights in good faith, the provisions of the preceding two paragraphs shall be applied by reference.
2.
Article 17 of the Marriage Law of the People's Republic of China
[Community Property of Spouses] The following property acquired by the spouses during the period of their marriage shall be jointly owned by them:
(1) wages and bonuses;
(2) income from production and business operations;
(3) Income from intellectual property rights;
(4) Property acquired through inheritance or gift, except as provided in Article 18, Item 3 of this Law;
(5) Other property that should be jointly owned.
Husband and wife have equal rights to manage jointly owned property.
[1] Court Opinion
1. Does the transfer from Zhao Moumale to Wang Moufemale constitute a gift? If so, what is the amount of the gift?
The transfer from Zhao Moumale to Wang Moufemale, for which Wang Moufemale provided no consideration, was a gratuitous grant by Zhao Moumale. Wang Moufemale actually accepted the transfer, and this situation should be recognized as a gift. From 2015 to 2017, Zhao Moumale transferred a total of 390,000 yuan to Wang Moufemale, and Wang Moufemale transferred 100,000 yuan back to Zhao Moumale on November 7, 2017. After offsetting, Zhao Moumale gifted a total of 290,000 yuan to Wang Moufemale.
Although Wang argued that the funds involved in this case were economic dealings between himself and Zhao, claiming that Zhao used Wang's account for stock trading and incurred losses, thus paying Wang afterward, and that part of the money was an investment from Zhao for jointly opening a clothing store, Wang failed to provide valid evidence to support these claims, so the court did not accept them.
Regarding the 100,000 yuan transferred by Wang to Zhao on November 7, 2017, Zhao argued that this amount was a repayment of a loan Zhao had previously given Wang in cash, but Zhao also failed to provide evidence for this argument, and Wang did not acknowledge it, so the court did not accept it either.
2.
Effect of a gift
In the absence of a special agreement between spouses regarding property, they hold joint ownership of marital property. During the marriage, marital property is an indivisible whole, with both spouses jointly owning all property without specific shares and having equal rights to dispose of it.
When either spouse needs to make an important decision regarding marital property for non-daily living needs, both must negotiate equally and reach a consensus; neither party has the right to dispose of marital property alone. Zhao, without Li's consent, gifted marital property to Wang for non-daily living needs, which constitutes unauthorized disposal of marital property. Additionally, spouses should remain faithful and respectful to each other; Zhao's extramarital affair with Wang and the gifting of substantial marital property to Wang violate public order and good customs.
In summary, Zhao's act of gifting 290,000 yuan to Wang is invalid, and Wang must return it. This 290,000 yuan is marital property jointly owned by Li and Zhao without specific shares, and Wang must return the full amount. Regarding Li's claim for interest, considering that both Zhao and Wang are at fault and should bear corresponding responsibility, the interest claim is not supported.
[1] The author's perspective
[1] The author believes that during the marriage, unless the couple has agreed on a separate property system, they jointly own the common property without divided shares. Any important decision regarding the common property should be made through equal consultation and mutual agreement. Neither party has the right to dispose of the common property individually for reasons unrelated to the couple's joint living needs.
[2] If one spouse establishes a romantic relationship with another person during the marriage, it violates public order, good customs, and relevant legal provisions. The act of privately gifting money to another person constitutes improper disposal of the common property. If the other spouse does not consent, the gift is invalid, and the recipient must return the gifted amount.
[3] It is hoped that those with ill intentions can learn from this case. After all, relationships are not commercial transactions. Couples should take loyalty and fidelity as basic requirements, and lovers should adhere to moral standards. Do not violate public order and good customs or cross legal boundaries, or the outcome will only be a "pipe dream."
