The two agreed in the divorce agreement that a house in Binjiang District, Hangzhou City, which they jointly purchased with a mortgage, would be put up for sale immediately, and the man would cooperate with the woman in handling the house sale, signature, transfer and other proce

Divorce due to relationship breakup

The couple divorced by agreement

They agreed to sell the property purchased with a joint mortgage and split the price

But the ex-husband repeatedly refused to cooperate with the deal

The agreement could not be fulfilled

What to do if the property is divided

Facts of the case

In January 2020, Wang Fang and Zhang Hua Divorce by agreement. The two agreed in the divorce agreement that a house in Binjiang District, Hangzhou City, which they jointly purchased with a mortgage, would be put up for sale immediately, and the man would cooperate with the woman in handling the house sale, signature, transfer and other procedures. After the buyer makes a down payment, both parties move out of the house. The proceeds from the transfer of the house will be distributed 80% to Wang Fang and 20% to Zhang Hua. After the

agreement was signed, Wang Fang actively looked for buyers and led the buyers to view the house again and again. However, Zhang Hua always refused with "the house is sold below the market price and I don't agree to sell it." The house has been unable to be transferred. In addition to raising two children, Wang Fang also has to pay back the mortgage every month, making her life increasingly difficult. At the same time, both parties lived under the same roof and lived a life of divorce without leaving "home". Quarrels continued and conflicts escalated.

Unable to bear it, Wang Fang filed a complaint against Zhang Hua in Binjiang Court, asking the court to divide the house.

"I didn't stop her from selling the house. It was because she failed to find a suitable buyer to sell the house at the market price." During the trial, Zhang Hua believed that Wang Fang's action in going to court to request division of the house violated the "transfer" clause in the divorce agreement between the parties. According to the agreement, Wang Fang is the party who defaults on the contract. Zhang Hua said that he did not have the financial ability to acquire the house. If the court wanted to auction the house, Wang Fang would have to bear all the appraisal fees and other losses.

"I can compensate Zhang Hua for the discount of the house according to the court's appraisal price." Faced with Zhang Hua's excuse to shirk the sale, Wang Fang proposed that the house be appraised by the court, take over the house himself, and compensate Zhang Hua for the discount of the house as agreed in the agreement. Methods.

The court ruled

In this case, the man and woman agreed in the divorce agreement that the house would be sold immediately after the divorce, and the net value of the house would be distributed in the proportion of 20% to the man and 80% to the woman. The terms of the house division agreement were legal and valid. After the agreement is concluded, the two parties should sell the house through intermediary agencies and other methods, and cooperate with the buyer to handle the signing and transfer procedures. However, because the two parties cannot reach an agreement on the sale price of the house, the division agreement agreed by both parties is in fact invalid. Even if both parties reach an agreement on the sale price of the house, Zhang Hua still needs to cooperate with the buyer to complete the signature and transfer procedures, and these obligations are not suitable for enforcement. In this case, the stipulation in the divorce agreement regarding "transfer of the house division price" cannot be performed, and Wang Fang, as a co-owner of the house, cannot realize the purpose of the contract. Therefore, the People's Court can legally terminate the division of the houses between the parties based on Wang Fang's request. The rights and obligations stipulated in the agreement shall be divided by referee. In this case, Wang Fang requested to obtain the ownership of the house, but Zhang Hua clearly gave up.

After trial, the court ruled that the house belonged to Wang Fang. Wang Fang compensated Zhang Hua for the discounted price, and both of them were responsible for half of the appraisal fee. Zhang Hua appealed, and the court of second instance upheld the decision.

The judge said

When a couple divorces, the method of dividing joint property can be divided into agreement division and judicial division. The division by agreement is a credit contract. After the real estate is registered and the movable property is delivered, the effect of property rights changes will occur. When the people's court adjudicates division, the judgment it makes is a formation judgment, and the change in property rights will take effect when the judgment takes effect.

In this case, because the two parties could not reach an agreement on the sale price of the house, the agreement on the "divided price of the transferred house" in the divorce agreement could not be fulfilled. Therefore, the people's court can terminate the rights and obligations stipulated in the house division agreement between the two parties according to law according to the request of one party, and make a judgment on the division.

Links to legal articles

"Interpretation of the Supreme People's Court on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China (1)"

Article 69, Paragraph 2 The parties shall comply with Civil Code Article 1076 The provisions on property and debt settlement in a divorce agreement signed by a divorce agreement are legally binding on both men and women.After the divorce is registered, if the parties have disputes over the performance of the above-mentioned agreement and file a lawsuit, the People's Court shall accept the case.

"Civil Code"

Article 580 If one party fails to perform a non-monetary obligation or the performance of a non-monetary obligation does not comply with the agreement, the other party may request performance, except in the following circumstances: (1) Legal or de facto impossibility of performance ; (2) The subject matter of the debt is not suitable for compulsory performance or the cost of performance is too high...

If there is one of the exceptions stipulated in the preceding paragraph, resulting in the failure to achieve the purpose of the contract, the people's court or arbitration institution may terminate the contract at the request of the parties rights and obligations, but does not affect the liability for breach of contract.

Article 304 The co-owners of can negotiate to determine the method of division. If an agreement cannot be reached and the jointly owned real estate or movable property can be divided and the value will not be reduced due to division, the physical property shall be divided; if it is difficult to divide or the value will be reduced due to division, the price obtained from the discount or auction or sale shall be divided.

Author: Fei Jing

Comprehensive: Hangzhou Binjiang District Court, Xiaojun Family Affairs

Source: Shandong High Court