Marriage is a major event in life, and entering into a legal marriage relationship with others means a change in a person's social status.
Similarly, divorce is also a major event in life, and all aspects of personal life will be affected by changes in the marital relationship.
In order to avoid "hot-headed" divorce, the civil code of our country includes the divorce cooling-off period in the divorce registration procedure.
divorce cooling off period
It is closely related to the calculation of the joint property of husband and wife
According to the provisions of the Civil Code, the cooling-off period for divorce is 30 days from the date when the marriage registration authority receives the application for divorce registration.
If either party is unwilling to divorce within 30 days, it may withdraw the application for divorce registration to the marriage registration authority.
Within 30 days after the expiration of the time limit, both parties should apply in person to the marriage registration authority for the issuance of a divorce certificate; if they fail to apply, the application for divorce registration shall be deemed withdrawn.
The establishment of the divorce cooling-off period system provides a "buffer period" for couples who are in emotional crisis, so as to avoid regrets due to impulsiveness.
In addition to "cooling down" for angry couples, the divorce cooling-off period system is also closely related to the calculation of the couple's joint property. Neglecting these short 30 days will cause unnecessary property disputes, and resentment will add new "enemies".
Then, during the divorce cooling-off period, if one of the husband and wife adds new property, does it belong to the joint property of the husband and wife?
Mother dies suddenly during divorce cooling-off period
Wife's request for division of estate is supported
In 2021, husband Zhang and his wife Wang agreed to divorce due to a breakdown in their relationship and signed the "Voluntary Divorce Agreement". Because their daughter lived with Wang, the two agreed that Zhang would voluntarily pay Wang 1 million in custody compensation.
After the two divorced, Zhang did not pay the money to Wang for a long time, so Wang filed a post-divorce property dispute lawsuit with the court.
It was originally an ordinary post-divorce property dispute case, but due to the divorce cooling-off period, unexpected situations occurred.
During the trial, Wang accidentally learned from Zhang's statement in court that Zhang's mother died during the cooling-off period of their divorce and left a house. Zhang and other heirs handled the estate notarization to sell the house.
The compensation has not yet been clarified, and an extra house has been created out of thin air. The joint property of the husband and wife is really "cutting constantly, and the management is still chaotic."
Wang believed that the death of Zhang's mother occurred during the divorce cooling-off period, when the plaintiff and the defendant were still in the marriage relationship, so the share of the house inherited by Zhang should belong to the joint property of Zhang and Wang, and requested to divide Zhang's income from selling the house. of house sales.
Regarding the ex-wife's claim, Zhang believes that it is simply unreasonable. On the one hand, the two have been separated for more than ten years. There are more support obligations, so Zhang's mother made a will before she died, and gave Zhang a larger share of the inheritance.
On the other hand, when the two divorced, Wang knew that he was unable to pay the compensation of 1 million yuan and could only pay it after inheriting Zhang’s mother’s estate. Therefore, Wang had actually agreed to pay the compensation with the proceeds of the sale of the house. There should no longer be a requirement to split the sale price.
The two insisted on their own opinions and debated endlessly about this, so whether the share of the house inherited by Zhang during the divorce cooling-off period is the joint property of the husband and wife?
After hearing, the Beijing Xicheng Court held that Zhang and Wang were still married when Zhang’s mother passed away in this case, and Zhang’s mother’s self-written will did not clearly state that Zhang’s inheritance of real estate shares belonged to Zhang. Or it does not belong to the joint property of husband and wife.
Although according to the divorce agreement between the two parties, Zhang voluntarily paid Wang 1 million yuan in compensation, the "Voluntary Divorce Agreement" did not mention how Zhang's share of the real estate inherited from Zhang's mother should be divided, nor did it clearly stipulate The proceeds from the sale of the house were compensation paid by Zhang to Wang based on the inheritance of the property.
Zhang stated that Wang knew that the compensation of 1 million yuan could only be paid by selling the inherited house, but how to pay the compensation was not the same concept as the nature of the compensation itself.
Zhang's share of the house sale proceeds from the sale of the inherited real estate belongs to a newly added, undivided joint property of the husband and wife, and has nothing to do with the previously agreed compensation.
Therefore, the share of the real estate inherited by Zhang belongs to the joint property of the husband and wife and is jointly owned by Zhang and Wang.
With regard to Zhang’s claim that Wang has not fulfilled his duty of support to his mother-in-law and has no right to share the house sale price, because Wang’s request to split the house sale money is based on the fact that without a clear agreement, the property inherited during the marriage belongs to the The joint property of the husband and wife was not based on Wang's direct inheritance of Zhang's mother's estate, so the court rejected this defense.
In the end, the Beijing Xicheng Court ruled that Zhang should pay more than 2.18 million yuan for the sale of the house inherited by Wang.
There is no necessary connection between the divorce cooling-off period and the joint property determination of husband and wife
It is worth noting that during the divorce cooling-off period, the newly added property cannot be determined to belong to or not belong to the joint property of husband and wife.
It is not the same property, but should be based on whether it meets the legal conditions.
That is to say, there is no necessary connection between the divorce cooling-off period system and the determination of the joint property of husband and wife.
my country's relevant laws and judicial interpretations have clear regulations on the joint property of husband and wife.
Article 1062 of the Civil Code stipulates that the following properties acquired by husband and wife during the existence of the marriage relationship shall be the joint property of the husband and wife and shall be jointly owned by the husband and wife: (1) wages, bonuses, remuneration for labor services; 1. Investment income; (3) intellectual property income; (4) inherited or donated property, except for those stipulated in Item 3 of Article 1063 of this Law; (5) other properties that should be jointly owned property.
Husband and wife have equal rights to dispose of common property.
Article One thousand and sixty-three stipulates that the following properties are the personal property of one spouse: (1) pre-marital property of one party; (2) compensation or compensation obtained by one party for personal injury; Property belonging to only one party; (4) daily necessities for the exclusive use of one party; (5) other properties that should belong to one party.
Article One thousand and sixty-five stipulates that a man and a woman may agree that the property acquired during the marriage relationship and pre-marital property shall be owned separately, jointly or partly separately and partly jointly.
The agreement shall be made in writing.
Where there is no agreement or the agreement is unclear, the provisions of Articles 1,062 and 1,063 of this Law shall apply.
The husband and wife's agreement on the property acquired during the marriage relationship and the pre-marital property shall be legally binding on both parties.
The husband and wife agree that the property acquired during the marriage relationship shall belong to each other, and the debts owed by the husband or the wife to the outside world, if the other party knows the agreement, the personal property of the husband or the wife shall be paid off.
Specific to the above case, if Zhang’s mother clarified in the self-written will that the relevant share of the house belongs to Zhang’s personal property, then Wang has no right to divide the joint property of the above-mentioned house.
In addition, if Zhang and Wang made a clear agreement on the ownership of the property acquired during the divorce cooling-off period in the "Voluntary Divorce Agreement", unnecessary disputes could also be avoided.
It is recommended that both spouses expressly agree
Ownership of property acquired during the cooling-off period
Marriage is a combination of personal and property relations. Choosing divorce will inevitably lead to changes in personal and property relations. The divorce cooling-off period is a special "buffer period". On the one hand, during the divorce cooling-off period, both parties have not yet formally registered for divorce. In the legal sense, it is still a husband and wife relationship; on the other hand, after entering the divorce cooling-off period, both parties have clear expectations about the consequences of the divorce, which is different from the normal marriage duration.
Judge Cheng Le of the Juvenile Family Tribunal of Beijing Xicheng Court suggested that, first of all, the husband and wife should prudently dispose of property within 30 days of the divorce cooling-off period, and neither blindly purchase nor privately dispose of property that may involve division, especially regarding the purchase and disposal of houses. , small cars and other large pieces of real estate and movable property, to prevent problems before they happen.
If one party is found to have transferred the joint property of the husband and wife, the other party should collect relevant evidence and file a divorce lawsuit with the people's court as soon as possible.
According to the law, if one of the husband and wife conceals, transfers, sells, damages, or squanders the joint property of the husband and wife in an attempt to occupy the property of the other party, when the joint property of the husband and wife is divided in divorce, the other party may receive less or no division.
Secondly, when the "Divorce Agreement" is concluded, in the relevant agreement on the property agreement of the husband and wife, it clearly stipulates the related issues of obtaining property and bearing debts during the divorce cooling-off period.
The content of the agreement must be based on the true meaning of both parties, and must not violate the law, nor violate public order and good customs. Once signed, it will take effect, and both parties should take it seriously and sign carefully.
Arbitrary agreement may lead to flaws in the effectiveness of the agreement, and random signing may damage one's legitimate rights and interests.
When necessary, the agreement can be notarized to truly avoid unnecessary disputes in the future and achieve "one difference and two leniency, no grievances".
Finally, marriage, as an important way to form a family, enables society to continue to operate, and also makes it possible for each independent individual to find spiritual warmth in the smallest unit of organization.
The divorce cooling-off period does not hinder the freedom of divorce. It is set to buffer the conflicts between husband and wife, improve the degree of prudence in divorce, and avoid impulsive and rash divorce, so as not to regret the mistake in divorce.
It also increases the cost of divorce to urge couples to think more calmly about the relationship between husband and wife, adjust their lives, and increase their sense of responsibility to the family and society.
During the divorce cooling-off period, fully communicate and negotiate on property arrangements and child care during the marriage, especially the custody of minor children, so as to truly achieve good reunion and good separation.
Text/Tian Jing Luanjie (Beijing Xicheng Court)