The person has fled, the money is gone—don't be fooled by a fake divorce.
Compiled from: Liubei Court, Legal Home, Beijing Legal Affairs
Recently, the Family and Juvenile Trial Division of Liubei District People's Court in Liuzhou City adjudicated a case where a couple used a fake divorce under the guise of buying a house, and the husband refused to fulfill the Supplementary Clause of the Divorce Agreement. The first-instance judgment ruled that the Supplementary Clause of the Divorce Agreement signed by both parties was legally valid, and the husband must pay the wife over 1.6 million yuan as agreed. The case was upheld in the second-instance final appeal, and the judgment has now taken legal effect.
Case review
The woman Tang Wei (pseudonym) and the man Miao Dongmin (pseudonym) registered their marriage in 2007, and their child was born in 2009. To improve their housing situation and take advantage of policy benefits, the couple planned to first have a "fake divorce," then purchase properties individually in their own names, and remarry immediately after buying the properties. Thus, they divorced in February 2018 and signed a "Divorce Agreement," which mainly stated: the child would be raised by the man, the woman would pay 500 yuan per month in child support, and there was no joint property or debts between the couple.
From April to July 2018, they each took out loans in their own names to buy properties in a certain community in Liuzhou City. The property in Building 12 was registered under the man's name, and the property in Building 16 was registered under the woman's name. During this period, the man also took out a loan in his own name to buy a car worth 150,000 yuan.
At the end of July 2018, the woman proposed remarrying, but the man refused and told her he had already married another woman. The woman felt that since the man had found a new partner just five months after the divorce, he must have been unfaithful during the marriage, deliberately concealing the truth and failing to honor the previous agreement to remarry. Therefore, she demanded that the man sign a "Supplementary Clause to the Divorce Agreement." In August 2018, both parties voluntarily signed the "Supplementary Clause to the Divorce Agreement," which mainly stated: 1. The woman owns the property in Building 16 of the community, and the man will pay the mortgage of 5,000 yuan per month from August 2018 to July 2046 on her behalf; 2. The car worth 150,000 yuan purchased by the man on loan will be paid off by the woman for the remaining 90,000 yuan car loan, and the car will belong to the woman. After signing the supplementary agreement, the man paid the mortgage for five months and then refused to continue. The woman had no choice but to pay the full year's mortgage in 2019 herself. During this period, the woman repeatedly tried to negotiate with the man but to no avail. In July 2019, the woman sued the man in court, requesting the court to order the man to fulfill his obligations under the "Supplementary Clause to the Divorce Agreement."
Focus of dispute: What is the validity of the "Supplementary Clause to the Divorce Agreement"?
In January 2020, the Family and Juvenile Division of the Liubei District Court heard the case. Both parties held opposing views on whether the signed "Supplementary Clause to the Divorce Agreement" had legal effect, leading to intense debate.
The woman argued that there was a prior gentleman's agreement between them about a "fake divorce" to buy a house and then remarry. Therefore, when signing the "Divorce Agreement," they only discussed child custody and did not address other matters. After discovering that the man had not honored the "remarriage" agreement and had engaged in deceptive behavior, the woman demanded that the man sign the "Supplementary Clause to the Divorce Agreement" as a supplement to unresolved issues from the previous marriage. The man voluntarily agreed to sign it, and the content of the supplementary agreement was legal and compliant, so the man should fulfill his responsibilities as agreed.
The man believes that divorce is simply divorce, with no so-called "remarriage" agreement, and that the two parties had already signed a Divorce Agreement at the time of divorce, which settled all matters during their marriage. After the divorce, the woman has no right to interfere with whom he marries or when he marries, and any subsequent marriage will not affect the woman in any way. The woman's request for a subsequent Supplementary Clause to the Divorce Agreement involved coercion, and the terms were manifestly unfair, rendering the agreement legally invalid. For example, as stated in the clause, the man's obligation to repay the woman's mortgage—the property in Building 16 of a certain community in Liuzhou City, purchased in the woman's name alone—was the woman's personal act, and after the divorce, the man should no longer have the duty to repay.
[1] Court Opinion
1.
Regarding the fake divorce
The court found that the woman claimed the divorce was a "fake divorce" for the purpose of buying a house, but legally, there is no distinction between real and fake marital relationships. As adults, both parties should have foreseen the legal consequences of registering the divorce, and they are hereby educated and criticized.
2.
Regarding the Supplementary Clause to the Divorce Agreement
Concerning the disputed cause of action in the lawsuit, since the property and car distribution stipulated in the Supplementary Clause to the Divorce Agreement involved assets purchased in each party's name after the divorce, which are not marital property, it is more appropriate to change the cause of action from a post-divorce property dispute to a contract dispute.
Regarding the legal validity of the disputed Supplementary Clause to the Divorce Agreement, the supplementary agreement was voluntarily signed by both parties, and its content does not violate mandatory provisions of laws or administrative regulations, making it legally valid. Although the supplementary clause includes the phrase "to be paid by the man on behalf of," considering the content of the supplementary agreement, the man's statements, and the actual circumstances of the case, it can be determined that the parties agreed that the man would bear the mortgage payments for the property in Building 16 registered in the woman's name. Additionally, the man failed to provide evidence that the supplementary agreement was signed under coercion by the woman, so the court does not accept his claim. Regarding the vehicle under the man's name, the woman had already advanced 90,000 yuan to pay off the remaining car loan, and the vehicle has been transferred to the woman's name. The man should pay the woman the corresponding advanced amount as stipulated in the supplementary agreement.
In summary, the court of first instance ruled according to law: 1. Miao Dongmin shall pay Tang Wei the full year's mortgage for 2019 in the amount of 60,000 yuan; 2. Miao Dongmin shall pay Tang Wei the monthly mortgage payment of 5,000 yuan from January 2020 to July 2046; 3. Miao Dongmin shall pay Tang Wei the vehicle loan of 90,000 yuan.
After the first-instance judgment was rendered, Miao Dongmin, dissatisfied with the ruling, filed an appeal. The court of second instance, upon trial, held that the facts found by the first-instance court were clear, the applicable law was correct, and the judgment should be upheld. It ruled according to law to dismiss the appeal and affirm the original judgment.
[1] The author's perspective
I. On the issue of whether the marital relationship is dissolved in a "fake divorce"
The newly promulgated "Marriage and Family" section of the Civil Code, Article 1080, adds a provision on the effective time of dissolution of the marital relationship: "Upon completion of divorce registration, or upon the divorce judgment or mediation document taking effect, the marital relationship is dissolved." This clarifies the equal validity of registered divorce and litigated divorce; once the divorce registration is completed, the marital relationship is declared dissolved.
This provision aligns with the special nature of divorce. Divorce, as a significant civil legal act affecting the vital interests of the parties involved, is a status-based legal act that leads to major changes in marital and family relations. It encompasses factors such as the civil affairs authority's formal review, the public notice and trust effect of registration, and the principle of good faith, and has binding force; once divorced, the identity relationship is irreversible.
According to the relevant provisions of the "Marriage and Family" section of the Civil Code, a consensual divorce must satisfy three conditions: first, the parties have civil capacity; second, both spouses have a clear expression of intent to agree to the divorce; third, both spouses reach an agreement on issues such as child custody, property division, and debt handling, forming a written divorce agreement. The third point is a newly adjusted content in the Civil Code regarding the content and requirements of a divorce agreement, emphasizing the need for a clear written agreement and the main contents that the written divorce agreement must specify, thereby further standardizing divorce registration procedures and the review standards for consensual divorce. Therefore, from a legal perspective, as long as the parties had full civil capacity at the time of divorce, voluntarily signed the divorce agreement, and completed the divorce registration procedures, regardless of their true purpose, it has the legal effect of dissolving the marital relationship, and the parties do not have the right to request revocation.
II. Issues Regarding the Performance of Property Division Clauses in Divorce Agreements Signed Under "Sham Divorce"
The primary form and vehicle for registered divorce is the divorce agreement. In essence, a divorce agreement is a composite agreement arising from various identity and property matters derived from divorce. Although the essence of a marital relationship is an identity relationship, this specific identity relationship is accompanied by a statutory property relationship, which allows spouses to alter it through mutual agreement. Such an agreement constitutes a contract concerning property ownership. Therefore, the content of property division clauses in a divorce agreement is not only governed by the "Marriage and Family" section of the Civil Code but, where no conflict arises, the principles of the "Contract" section should also serve as the legal basis. In "sham divorce" cases, some spouses argue in litigation that the "sham divorce" was not intended to restore the original marital relationship, but rather because the property division during the "sham divorce" process was not the result of careful consideration, or was aimed at circumventing regulatory policies, thus not reflecting their true intent, or even increasing their own burden. Consequently, they request the court to redistribute the property.
When adjudicating such cases, courts generally distinguish between identity and property relationships. While affirming the validity of the parties' agreed divorce in handling identity relationships, the court must still examine the true intent behind the property disposition in the divorce agreement. The validity of property division clauses in a divorce agreement must satisfy the condition of genuine expression of intent. If no circumstances such as fraud or coercion in the formation of the property division agreement are found, the party's claim should be dismissed in accordance with the law. If evidence can indeed prove that the property division provisions in the divorce agreement do not reflect the true intent of both parties and violate the principle of consistency of rights and obligations, the court should redistribute the marital property in accordance with the law.
In summary, in "sham divorce" cases between spouses, identity and property relationships should be treated separately. The marital identity relationship between spouses is dissolved upon the completion of divorce registration or the entry into effect of a divorce judgment (mediation document), based on considerations such as the public trust effect of registration and the principle of good faith. However, regarding the property relationship during the marriage, it is necessary to determine whether the property agreement reflects the true expression of intent. According to Article 146 of the Civil Code of the People's Republic of China, "A civil legal act performed by an actor and the counterparty based on a false expression of intent is void." In this case, the supplementary agreement between the man and woman concerning marital property after divorce does not fall under the circumstances specified in Article 146 of the Civil Code. As long as it meets the conditions for validity under the Contract Law and lacks grounds for invalidity or revocability, it can be deemed valid.
