What to do if there are differences in the statute of limitations of the marriage agreement

Article 31 of the Judicial Interpretation of the Marriage Law (1) stipulates that the parties shall bring a lawsuit to the people s court in accordance with the provisions of Article 47 of the Marriage Law. Calculation. However, in some special cases, there are still differences in the statute of limitations on marital property agreement. What should we do? Next, the editor of Hualu.com compiled a statute of limitations on marital property agreement for everyone. Cases of how to disagree, welcome everyone to read!

The plaintiff Xiao Nan and the defendant Liu Nu were originally married. In 2004, the two parties reached a divorce agreement and dealt with their children, property and debts, but did not register for divorce. In 2005, Liu Nu brought a divorce lawsuit to the court. In the lawsuit, the two parties signed a divorce agreement again (the agreement did not mention property and debts) and submitted it to the court for confirmation. The court produced a mediation letter to confirm the divorce. In September 2010, the plaintiff Xiao Nan sued in court, asking for the division of the couple s common property and common debt.

This case is an ordinary dispute over the division of common property of husband and wife after divorce, but because the plaintiff filed a lawsuit with the court within 5 years after the divorce, asking for the division of common property of the husband and wife, a common case has different opinions:

The first view is that the statute of limitations has expired in this case, and the prosecution should be dismissed if the defendant files a statute of limitations. After the divorce, the property dispute is essentially a continuation of the divorce dispute. It is still a divorce dispute and is regulated by the Marriage Law. Therefore, the provisions of the Marriage Law on the division of common property of spouses at the time of divorce shall apply. According to Article 47 of the Marriage Law, After divorce, if one party discovers that the other party has hidden, transferred, sold, or damaged the common property of the husband or wife during divorce, or forged debts in an attempt to invade the other party s property, they may file a lawsuit in the people s court and request a second time. According to the provisions of dividing the common property of husband and wife, the plaintiff Xiao has the right to sue. However, Article 31 of the Supreme People s Court s Interpretatio n of Certain Issues in the Application of the Marriage Law (1) The party has filed a lawsuit with the People s Court in accordance with Article 47 of the Marriage Law, and the time limit for the suit requesting the division of the husband and wife s common property again is two years. According to the provisions of the calculation from the next day , the suit of the plaintiff Xiao Mou to the people s court for re-dividing the common property of the husband and wife is two years, and the suit has already passed the suit.

The second view also holds that the case has expired. In the case where the defendant filed a limitation of action, the court should reject the lawsuit, but the legal basis and opinion differed. Article 188 of the General Principles of the Civil Law of the People s Republic of China, which came into effect on October 1, 2017, provides for the limitation of lawsuits: The limitation period of a lawsuit for protection of civil rights from a people s court is three years. In this case, the disputed property (including the positive property and the negative property) of the two parties is the common property during the existence of the husband and wife relationship. If either of the husband and wife thinks that the property ownership has been infringed and initiates a lawsuit, it shall be a general civil tort. In this case, since the two parties divorced in 2005, Xiao knew the husband and wife s common property from the beginning, and should also know that if the property was not divided at the time of divorce, their ownership of the common property would be violated, but only after a lapse of five years. It was filed that it has clearly exceeded the limitation period for litigation prescribed by law, and there are no legal reasons for the suspension , interruption and extension of the limitation period for litigation. Therefore, it has lost the right to claim the people s court to protect its rights. The people s court shall not protect it according to law and shall dismiss its claim in accordance with law.

The third view is that although the parties in this case confirmed the divorce by the court, the essence was still the parties agreed to divorce. Although the two divorce agreements were signed in time, both parties expressed their intentions at that time and did not Contradiction , it can be considered that the two parties have divided the common property at the time of the agreement. According to the Supreme People s Court s Interpretation of Several Issues concerning the Application of the Marriage Law of the People s Republic of China (II) (hereinafter referred to as Marriage Law Interpretation 2 ), Article 8 Articles on the Division of Property in Divorce Agreements or the Agreement reached by the Parties on the Division of Property Due to Divorce It is legally binding on both men and women , Article 9 If a man and a woman agree to regret the division of property within one year after divorce, and request a change or revocation of the division of property agreement, the peo ple s court shall accept it. After the people s court has not found any property, Where there is fraud, intimidation, etc. in the division agreement, the parties claims shall be rejected according to law, but the Marriage Law and its interpretation are special laws, and according to the basic principle that special law takes precedence over common law, its limitation period shall apply: The one-year rule provides that the statute of limitations in this case is one year. However, in this case, there was no legal situation of fraud or duress when the two parties of the plaintiff and defendant signed the divorce agreement. The divorce agreement must not be revoked or changed, and the plaintiff s claim should be rejected.

(4) The fourth point of view is that there is no statute of limitations in this case, nor does it involve the issue of statute of limitations. According to the Marriage Law, the property (including positive property and negative property) acquired by one party during the existence of the marriage is generally the common property of the husband and wife. Therefore, if the property is acquired during the duration of the marriage, the spouse should be the co-owner of the property; when there is no division at the time of the agreement or litigation, the man and woman after the divorce will still be the co-owners of the property, but according to the Article 99 of the Law of the People s Republic of China stipulates that … the common co-owner may request a division when the common ground is lost or there is a major reason for division, both men and women at this time may request a division of the common common property.. The right to a division of the common property belongs to the category of real rights, and the limitation of action is not applicable.

How this case should be handled and whether the time limit for litigation is applicable depends on the qualitative nature of the plaintiff s request for splitting the spouse s property and debt: If the qualitative request is the first split, the plaintiff s common property of the spouse is undivided at the time of divorce. It is a common and common relationship. According to Article 99 of the Law of the People s Republic of China on Property Rights, … the common co-owner may request a division when the common ground is lost or there are major reasons for division . Next, you can apply to the court to divide the things that are commonly shared during the existence of the husband and wife relationship. The property law does not stipulate the time limit for exercising this right. At the same time, according to the basic theory of the Real Right Law, the property rights owner does not apply the provisions of the limitation of action to the exercise of the right of in-person claim on the objects in which the real right is enjoyed (such as the common property of the husband and wife in this case). If it is determined that the common property of the husband and wife is to be split again, it is no longer a lawsuit against the division of the common property (it has been divided, and of course it is no longer a common property), but the previous common property division agreement and the corresponding division are completed. To raise objections to the ownership of the original husband and wife s common property, the general rules of civil law, in particular the Marriage Law and its interpretation of the limitation provisions of the law concerning the re-separation of the married couple s common property should be directly applied. It is only based on the specific regulations and the limitation period of litigation that they should be combined with the merits of the case.

The key to distinguishing whether the case is a first division or a second division is the determination of the validity of the divorce agreement signed by the original defendant in May 2004. If the divorce agreement is found to be valid, this case is a case of re-segmentation; if it is found to be invalid, it is a first-segment case.

Although the divorce agreement is also a result agreed by the two parties, but its nature is different from the general agreement, it exists for the purpose of achieving divorce, and should be regarded as an anonymous contract with conditions for entry into force. It is premised that the divorce agreement is registered by the marriage registration authority. Article 14 of the Interpretation of the Supreme People s Court on Several Issues concerning the Application of the Marriage Law of the People s Republic of China (III) clearly stipulates: The property division reached by the parties subject to the registration of a divorce or agreement with the people s court for divorce Agreement, if the two parties agree that the divorce has not been completed and one of the parties has repented in the divorce proceeding, the people s court shall determine that the property division agreement has not taken effect, and according to the actual situation, the common property of the husband and wife shall be divided according to law. The divorce agreement signed must take divorce as an effective element. According to this, in this case, the two parties did not register the divorce with the marriage registration department with the divorce agreement signed in 2004, and did not have the effect of dividing the common property of the husband and wife according to the law.

In summary, this case is essentially a case where the common property owner (spouse and husband and wife together) made an initial request for the division of real property rights against the common property (spouse and husband and wife common property). It is a real property dispute and does not involve the limitation of lawsuit. The first and second views consider that the limitation period in this case has been wrong. Because the original defendant in this case divorced under the mediation of the court, and there was no valid spouse s common property division agreement before, it does not comply with Article 9 of Marriage Law Interpretation II, The men and women agree to repent on the issue of property division within one year after the divorce. The provisions of Opinion 3 are not applicable to this case. The author agrees with the fourth point of view. This case is an action for the right to request for the division of common property in accordance with the Property Law of the Pe ople s Republic of China. The plaintiff requested the division of his common property in accordance with the provisions of the Property Law to achieve his full ownership of the corresponding common property. The exercise of the real right is direct and exclusive, and the provisions of the limitation period of litigation are not applicable. At the same time, the property right law does not stipulate the time limit for exercising this right. According to the basic private law principle of freedom is not prohibited by law, the plaintiff may exercise the right to request for division at any time. Therefore, the plaintiff s exercise of this right within a reasonable period of 5 years after marriage does not violate the provisions of the civil law and other civil laws, nor violates the basic principles of civil law such as good faith, public order and good customs and prohibition of abuse of rights. Legal support.

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