Contents
 
 
      In practice, there are couples that hope to get the divorce certificate as soon as possible so that in the process of divorce registration, they don’t clearly explicate the amount of common property and methods for division but with the characters “Division of common property has been negotiated”. However, after divorce, they may have disputes on the fulfillment of property division and unnecessary lawsuits are inevitable.
Relevant case
      Mr. Zhang and Ms. Li got married on October 1995 at the Civil Affairs Bureau of XYZ District in Shanghai. After the marriage, they have altogether purchased three premises registered under the name of Zhang and a car under the name of Li. Owing to emotional disharmony, both parties decided to make divorce registration at the civil affairs bureau on November.3.2003. In their divorce agreement, it puts, the male party Zhang and the female party Li get divorced by mutual consent due to emotional disharmony and they have come to agreements on the issues as follows: The division of common property has been negotiated and both parties have no objection against them. The male party shall bear the responsibility of bringing up two sons. Beside, both parties promise to perform the above-mentioned obligations. In case any acts of hiding or deceiving in terms of contents, the party concerned should bear the corresponding consequences.
However, the female party Li brought a case to court concerning property disputes after divorce, as both parties had disagreements on division of common property.
      The plaintiff Li claimed that both parties got divorced in 2003 at Civil Affairs Bureau of X District in Shanghai. Because both parties only reached agreements on the issues of personal relations and child custody without specific information about the division of common property in their divorce agreement, the plaintiff took a legal action concerning property division such as real estates. The plaintiff found that the amount of common property was quite at odds with the original figure in the divorce agreement.
      The defendant Zhang argued that both parties had reached agreements on division of common property: i.e.: cars and bank deposits under the name of the plaintiff belong to the plaintiff, while property under the name of the defendant belong to the defendant and the defendant shall take the responsibility of bringing up two sons. The defendant maintained that the divorce agreement made at civil affairs bureau should be actual and valid, so there is no fact or legal ground that the division of common property had not been concluded by both parties. Therefore, the defendant besought the judge to reject the plaintiff’s lawsuit.
      Generally speaking, it is relatively easy to solve the disputes concerning child custody through the court, but as for division of common property, the characters “Division of common property has been negotiated” refer that both parties have reached agreements on the specific amount, methods of division and allotment of common property and they have gone through the corresponding procedures. However, the fact is just on the contrary. Two different opinions may arise on the amount of common property and methods of division.
      1) From the opinion of the defendant, there is no need to re-divide the common property as both parties have reached agreements on this issue, i.e.: Possession of common property is divided subject to the ownership.
      2) From the opinion of the plaintiff, since there are no specific information on the detailed items and methods of division on common property in the divorce agreement, it should be regarded as invalid division. So, re-division of common property should be carried out pursuant to the relevant laws.
      The People’s Court of XX District in Beijing defines that common property refers to property possessed during the existence of conjugal relation and such property belong to both parties. Both parties shall negotiate for the division of common property in the process of divorce. Agreements on division of common property and child custody reached by both parties at the civil affairs bureau shall be regarded as the final agreement made on their true wills. Furthermore, the characters “Division of common property has been negotiated” reflect that both parties have reached agreements on this issue by mutual consent and such agreements contain no deceit or threat, etc, which are legally binding to both parties. Therefore, the property the plaintiff appealed to re-divide didn’t belong to common property the defendant hid or concealed on purpose in the process of divorce. In the divorce agreement, both parties mentioned agreements on child custody of two sons and the plaintiff has specific obligations concerning this, so it is natural that the defendant can possess more property than the plaintiff. Anyway, equality in quantity upon consideration cannot be the only criterion for dividing common property. In short, since both parties have come to agreements that common property under each name belongs to each party, the plaintiff’s request for re-division after divorce registration shall not be supported by the court in lack of relevant facts and legal ground.
      However, both parties cannot accept the judgment and have lodged an appeal to a certain intermediate people’s court. At present, the case is in the course of the trial.