Can father take back my property
Can father take back my property
□ Yu Xukun
According to the law, minors also enjoy property rights, and their parents or other guardians should properly manage and protect the minor’s property.
However, sometimes parents become the ones who infringe on the property of minors, especially when there are rifts in the parental relationship or marriage problems, the parents are more likely to have differences, which damage the rights of minors.
In this case, minors must understand and study relevant legal knowledge.
Xiaohong is 14 years old this year. Two years ago, her father had a lover outside and often did not go home. This caused a lot of harm to Xiaohong's mother.
Because Xiaohong's father has been clamoring for a divorce, Xiaohong's mother reluctantly agrees to divorce with him.
However, during the negotiation process, Xiaohong's parents disagreed on the issue of property division.
After many communications, Xiaohong's parents finally agreed to leave a set of real estate jointly owned by the husband and wife to Xiaohong, and when Xiaohong became an adult in the future, the real estate would be transferred to her name.
In this way, Xiaohong's parents broke up peacefully.
But what I didn't expect was that now Xiaohong's father wanted to mortgage the property in order to invest in his girlfriend's business. Xiaohong and her mother disagreed.
What makes Xiaohong angry is that Xiaohong's father intends to revoke the "gift" to Xiaohong and prepares to file a lawsuit in court.
So, can Xiaohong's production capacity be maintained?
How to define the nature of divorce agreement?
How to deal with real estate issues in divorce?
First of all, divorce by agreement is one of the important ways to dissolve a marriage relationship.
According to Chinese law, there are two main ways to dissolve a marriage relationship. One is the divorce by agreement between the husband and wife, and the other is the divorce by the people's court. The first method adopted by Xiaohong's parents is to go through the divorce procedures after negotiation.
Article 1076 of our Civil Code stipulates that if both spouses divorce voluntarily, they shall sign a written divorce agreement and go to the marriage registration office to apply for divorce registration in person.
The divorce agreement should contain the intention of both parties to divorce voluntarily and their consensus on matters such as child support, property and debt handling.
From Xiaohong’s description, it can be known that Xiaohong’s parents have reached an agreement on the child rearing and property issues. On the one hand, Xiaohong is raised by his mother, and Xiaohong’s father pays monthly maintenance fees; on the other hand, Xiaohong’s parents unanimously agree to A set of real estate is left to Xiaohong, who will be transferred to Xiaohong's name when Xiaohong reaches adulthood.
Because the parents had reached a consensus, the two went to the marriage registration office to apply for divorce registration.
Second, the divorce agreement is different from the general contract.
A contract is an agreement between civil entities to establish, change, and terminate a civil legal relationship. Xiaohong's parents leave the real estate to Xiaohong, which is a legal gift.
If according to the ordinary contract, the gift can be revoked.
However, my country's Civil Code also stipulates that marriage and other agreements related to identity relations should be adjusted by marriage legal relations.
In other words, although Xiaohong's parents donated the real estate to her, because the divorce agreement is a personal contract, it should not be adjusted by the legal relationship of the contract.
Moreover, the divorce agreement at that time was a package solution to the problems of marriage, child support, and joint property of the husband and wife, and it was interrelated and indivisible.
Therefore, if there is no legal reason, this kind of real estate donation cannot be revoked.
If Xiaohong's father filed a lawsuit in the people's court on the grounds of revoking the gift, his claim would not be supported.
Third, there must be statutory circumstances to cancel the divorce agreement.
If the husband and wife repent on the issue of property division after divorce through an agreement and request to revoke the property division agreement, the people's court shall accept it.
However, the "Interpretation of the Supreme People's Court on the Application of the "Civil Code of the People's Republic of China" Marriage and Family Edition (1)" also stipulates that after the people's court, if there is no fraud or coercion in the conclusion of the property division agreement, it shall be in accordance with the law Dismiss the litigation claims of the parties.
According to the above regulations, the people's court will rule to revoke the divorce agreement only when there are legal circumstances such as fraud and coercion.
If Xiaohong’s father did not file a lawsuit on the grounds of revocation of the gift, but went to the people’s court to apply for revocation of the divorce agreement, this would be procedurally legal.
However, from the situation described by Xiaohong, Xiaohong’s mother did not deceive Xiaohong’s father. The property and other property of the family are clear at a glance; Xiaohong’s mother did not use coercion to force Xiaohong’s father to divorce. Both parties are on an equal and voluntary basis. Negotiations conducted.
Moreover, from the perspective of judicial practice, the people’s courts have stricter standards for the determination of fraud and coercion. If there is no obvious evidence to prove the existence of fraud, coercion, etc., the people’s courts will generally respect the original opinions of both men and women and will not easily revoke the divorce. protocol.
Xiaohong is at least 8 years old and is a person with limited capacity for civil conduct. She can independently perform civil juristic acts for pure benefit or civil juristic acts suitable for her age and intelligence.
The father and mother had jointly decided to leave a set of real estate to Xiaohong at the time of the divorce. This is a civil legal act for Xiaohong to gain pure benefits. It is legal and effective; when the father intends to mortgage the house, he already has a certain cognitive ability. Xiaohong expressed opposition, and she has the right to express her will, and the people's court will also consider it.
In summary, it can be seen that Xiaohong can keep the property, and her father has no right to revoke the gift to Xiaohong.
(The author is a partner lawyer of Beijing Zhicheng Law Firm, and deputy director of Beijing Youth Legal Aid and Research Center)