Shenzhen Professional Marriage and Family Lawyer Tang Yunhong Discusses Cases: Protecting Rights in Execution Objection Litigation from Three Typical Judgments

Marriage and Family Affairs Dispute (Mediation/Litigation) Practical Expert

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Guangdong Dao Hua Law Firm, Tang Yunhong, Dao Hua Family Law Team, Shenzhen's renowned divorce litigation lawyer, professional inheritance and succession lawyer, Guangdong and Shenzhen's top ten family law firms, specializing in: major complicated divorce mediation/court litigation, property small property division, will and inheritance disputes, will notarization, divorce property division, post-divorce property disputes, divorce/marital agreement, custody disputes, will inheritance disputes, legal inheritance disputes, land and property inheritance, rural house demolition inheritance, will drafting, will validity determination, etc. Non-litigation and disputes. Service area: Futian, Nanshan, Luohu, Longgang, Bao'an, Longhua, Guangming, Pingshan, Dapeng, Yantian.

Introduction:In marital and family disputes, the division of property has always been the core point of contention. When the property after divorce faces compulsory enforcement due to the debt of the former spouse, the protection of rights and interests is even morefell into a dilemma. The marriage and family team of Guangdong Dao Hua Law Firm, led by lawyer Tang Yunhong, has been deeply involved in marriage and family cases for 10 years, drawing experience from thousands of cases. These experiences cover various core dispute scenarios in divorce property execution objections — from the identification of the boundary between the validity of the divorce agreement and the conflict with external creditors, to the calculation of the rights and interests share of pre-marital house purchase and post-marital repayment, and to the evidence strategy when the property registration is disconnected from the actual rights. The team has deeply realized that many parties have suffered damage to their legitimate rights and interests in the enforcement procedure due to neglecting the timeliness of property transfer, failing to retain key payment vouchers, or making mistakes in the judgment of the relevance of debt. These vivid lessons from the front-line cases not only provide rich samples for subsequent sorting out typical judgments but also ensure that each legal issue decomposition and practical suggestion is closely linked to the actual pain points, helping parties to avoid common risks such as the failure of "paper rights" and being involved in "beingdebts."

Lawyer Tang Yunhong recently sorted out three typical judgments in Guangdong Province concerning the litigation of execution objections to divorce property, and found that many parties have suffered damage to their legitimate rights and interests due to neglect of key issues such as property ownership registration and the scope of validity of divorce agreements. This article will analyze the details of the judgments, decompose the risk points of divorce property in the execution procedure, and provide professional legal guidance to readers.

One, Case Study: Three Typical Situations of Objections to the Enforcement of Divorce Property

Case One: Why is it still difficult to enforce the judgment despite the divorce agreement being signed first and the asset freeze coming later?

Lai Moumou and Yang Moumou were married in 1997 and purchased a house at No. XXX, Dongfeng West Road, Yuexiu District, Guangzhou during their marriage. On August 31, 2015, they signed a "Divorce Agreement," clearly stating that the house belonged to Lai Moumou and their daughter Yang Moumou, and they went through the divorce registration process. However, due to a dispute over a house sale and purchase contract between Yang Moumou and Yu Moumou, the house was first sealed by the court on July 13, 2015, and Yu Moumou also applied for a seal on the house subsequently.

Lai Moumou and her daughter, citing the divorce agreement that the house should belong to them, filed an objection to the enforcement order which was rejected, and then filed a lawsuit for an enforcement objection, requesting the suspension of enforcement and confirmation of ownership of the house. The first-instance court held that since the house had not been registered for transfer, the property rights had not changed, and the divorce agreement, as an internal agreement, could not override creditors, and therefore rejected their lawsuit request. The second-instance court further pointed out that the first seizure of the house occurred before the signing of the divorce agreement, Lai Moumou should have been aware of the seizure status of the house, and there was negligence in not promptly handling the transfer, so the original judgment was upheld, and it was only confirmed that Lai Moumou had a 50% share of the property.

Case Two: Why can the division of property in a divorce agreement be excluded from enforcement?

Huang Moumou and Chen Moumou were married in 2008, and in 2013, they jointly mortgaged to purchase a house at No. X, Zhongyang Avenue in the Zhongshan Torch (Yangxi) Industrial Transfer Industrial Park in Yangxi County, which was registered in Chen Moumou's name. On December 28, 2015, the two parties agreed to divorce, and it was agreed that the house would belong to Huang Moumou, with the remaining mortgage to be repaid by her, and the divorce registration was handled.

In May 2015, Chen Moumou borrowed money from the Yangjiang Branch of the Guangfa Bank and later defaulted on the repayment. The bank sued and applied for the seizure of the involved property. During the execution process, Huang Moumou raised an objection which was rejected, and then filed a lawsuit against the execution objection. The court found that the divorce agreement was signed and filed before the seizure of the property, Huang Moumou actually possessed and used the property, and the failure to transfer ownership was due to the outstanding mortgage, without any subjective fault. Moreover, the bank's claim was Chen Moumou's personal debt, Huang Moumou was raising two underage children alone, and the property was her only residence, so her survival rights should be given priority protection. Therefore, the court ruled that the property could not be executed.

Case Three: If a house is purchased before marriage and the loan is repaid after marriage, can it prevent the executor from exercising the mortgage right?

Wu Moumou purchased a house in Nansha District, Foshan City in 2003, registered in his personal name, and obtained a mortgage loan in 2004. In 2005, Wu Moumou married Yu Moumou, and after marriage, they jointly repaid the mortgage loan, which was settled in 2014. In 2017, Wu Moumou borrowed money from Jingneng Company by mortgaging the house. Later, he failed to repay the loan as agreed, and after Jingneng Company won the lawsuit, it applied for compulsory enforcement and seized the house involved in the case.

Yu claims that the house is the joint property of the couple, files an action for execution objection, requesting to stop the execution, confirm the ownership share, or deduct rent. The court believes that the house was purchased by Wu before marriage and registered in his name, which belongs to personal property, and the joint repayment after marriage does not change the ownership. Jinger Company, as the mortgagee, has the priority right to be compensated. Yu's rights and interests are not sufficient to exclude compulsory execution, so the court rejects all of his claims.

Two, Decomposition of Core Legal Issues: The Key Judicial Logic of Execution Objections to Divorce Property Cases

(1) Can the division of property in a divorce agreement resist external creditors?

The division of property in the divorce agreement is essentially the disposition of joint property by both spouses, which belongs to an internal legal relationship. According to the principle of public notification and credibility of property rights, immovable property rights are determined by registration. If the divorce agreement has not been registered for transfer, the property rights do not change, and cannot directly counter external creditors.

But under certain conditions, the division of property in a divorce agreement can exclude enforcement.One, the divorce agreement was signed and legally registered before the house was sealed, and it has a certain public announcement effect; two, the case outsider actually occupies and uses the house; three, the transfer registration was not completed due to no subjective fault of the case outsider, such as outstanding mortgages, policy restrictions, and other objective reasons; four, the rights and interests of the case outsider take precedence over the creditor's claim, such as situations involving the guarantee of survival rights, lack of other residential houses, etc.

The core difference between the two aforementioned cases lies here:In Case One, the house was sealed before the divorce agreement was divided, and the third party failed to transfer the property in a timely manner, thus committing an error; in Case Two, the divorce agreement was signed first, the third party was not at fault, and their right to subsistence needed to be protected, hence the judgment results were completely different.

(2) How should the ownership of the property purchased before marriage and repaid after marriage be determined?

Pursuant to the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Article of the Civil Code of the People's Republic of China

Article 78 stipulates that if one spouse signs a real estate purchase and sale contract before marriage, pays the down payment with personal property and takes out a bank loan, and uses the joint property of the couple to repay the loan after marriage, and the real estate is registered in the name of the party who paid the down payment, the real estate shall belong to the party registered with the property rights at the time of divorce. The joint repayment amount paid by both parties after marriage and the corresponding increase in property value shall be compensated by the party registered with the property rights to the other party.

In the case of an action for challenging the execution, the court usually determines such houses as the personal property of one party who has registered the ownership, and the joint repayment after marriage forms a creditor relationship, not a share of property rights. As shown in Case Three, although Yu has jointly repaid the loan after marriage, he cannot obtain the joint ownership of the house, and the mortgagee has the priority right to be compensated, and his claim cannot prevent the execution. Only after the house is disposed of, the joint repayment and the appreciation part can be returned as the common property of the couple.

(3) How to safeguard legitimate rights and interests when the property rights registration does not match the actual rights?

The ownership certificate of real estate property is a proof of the right holder's ownership of the real estate property, but it is not absolute. In the division of property in divorce cases, it is common to encounter situations where the "nominal owner" and the "actual right holder" are inconsistent, such as when the house is registered in one party's name, and the divorce agreement stipulates that it should belong to the other party but has not been transferred.

At this time, the actual rights holder must prove the authenticity and legality of the divorce agreement, as well as the non-malicious fault of not having transferred the property. If the house has not been sealed, the actual rights holder may sue to request the transfer registration; if it has been sealed, evidence must be provided in the lawsuit against execution objections to prove the civil rights and interests sufficient to exclude compulsory execution. However, it should be noted that if a mortgage has been established on the house, the priority claim of the mortgagee is usually superior to the rights and interests stipulated in the divorce agreement, as shown in Case Three.

III. Practical Risk Prevention: Lawyer's Advice on Divorce Property Rights Protection

(1) Handle the real estate transfer registration promptly during divorce to avoid "paper rights"

The divorce agreement stipulates that the property shall belong to one party. The transfer registration should be handled as soon as possible after the divorce, which is the key to ensuring property rights. In practice, some parties delay the transfer due to reasons such as mortgages and tax burdens. Once the former spouse is involved in a debt dispute and the property is seized, they will face execution risks.

If the house has a mortgage and cannot be transferred immediately, the following measures can be taken:One, negotiate with the bank to change the subject of the mortgage loan contract, transfer after prepaying the mortgage loan; Two, clearly stipulate the transfer time, liability for breach of contract, and the obligation of the former spouse to cooperate in the transfer in the divorce agreement; Three, promptly apply to the real estate registration department for handling the objection registration to prevent the former spouse from arbitrarily disposing of the house.

Before signing the divorce agreement, check the property rights status.

Before dividing the property in a divorce, it should be checked through the real estate registration department whether there are any rights restrictions such as seizure or mortgage. As shown in Case One, if the property has been seized, the division agreement in the divorce agreement cannot counteract the seizure action, and may be regarded as having the suspicion of evading enforcement.

If the property is found to be sealed, the sealing issue should be resolved first, such as by raising an objection to enforcement, negotiating with creditors to settle debts and lift the seal, and then proceed with the division. At the same time, the divorce agreement should clearly specify the restrictions on property rights and the subsequent handling methods to avoid subsequent disputes.

(3) Purchase a house before marriage and repay the loan after marriage, retain relevant evidence

In the case where one party purchases a house before marriage and the two parties jointly repay the loan after marriage, the party jointly repaying the loan should keep bank transfer records, repayment vouchers, and other evidence to prove the fact of joint repayment. If property division is involved in the divorce, the party can claim compensation for the joint repayment and appreciation based on the relevant evidence; if the property is enforced, the party can claim priority for repayment of the joint repayment and appreciation after the property is disposed of.

In addition, if the house is renovated or rebuilt after marriage, relevant evidence should also be kept, and the investment in this part and the corresponding increase in value can be claimed as joint property of the couple.

Be vigilant of the risks associated with real estate mortgages and avoid being "burdened with debt."

After divorce, if the property is still registered in the name of the former spouse, the former spouse may secretly mortgage the house for a loan, leading to the execution of the property. To prevent such risks, it is advisable to handle the transfer registration as soon as possible after divorce. If temporary transfer is not possible, a mortgage pre-registration can be handled at the real estate registration department to restrict the former spouse from secretly mortgaging.

At the same time, the divorce agreement explicitly stipulates that the former spouse shall not dispose of the property arbitrarily, and if the agreement is violated, the party shall bear the compensation liability. If it is found that the former spouse has arbitrarily mortgaged the house, it can file a lawsuit to declare the mortgage contract invalid, or claim in the enforcement procedure that the mortgage action has damaged its legitimate rights and interests, and exclude the enforcement.

(Five) In the face of property enforcement, take legal measures in a timely manner

If the property is seized and enforced due to the former spouse's debt after divorce, an execution objection should be raised within the statutory period. If the execution objection is rejected, an action for execution objection should be filed within 15 days to avoid exceeding the statute of limitations.

When filing a lawsuit against enforcement, it should be emphasized to prove the following facts: the authenticity, legality, and the fact that the divorce agreement was signed earlier than the sealing time; evidence of actual occupation and use of the house, such as property fees, utility bills, and residence certificates; evidence that the transfer registration was not carried out due to non-self fault; reasons why the rights and interests of the individual take precedence over the creditor's claim, such as the guarantee of survival rights, lack of other residential houses, etc.

Four, Tang Law states: Use the law as a shield to protect the property rights of divorce houses

The protection of property rights in divorce cases involves the handling of marital and family relationships, as well as the intersection of legal relationships such as property rights and creditor rights. In practice, the situation is complex and there are many risk points. From the above three cases, it can be seen that the effectiveness of the divorce agreement, the status of property rights registration, restrictions on property rights, and the subjective fault of the parties involved, all affect the judgment results of the lawsuit against enforcement objections.

As a family law attorney, it is recommended that parties pay attention to the legality and compliance of property division during the divorce process, promptly handle the registration of property rights change, keep relevant evidence, and prevent subsequent risks. If faced with the execution of property, it is necessary to consult a professional lawyer in a timely manner, take legal measures such as execution objections and lawsuits for execution objections under the guidance of the lawyer, and maximize the protection of their own legitimate rights and interests.

Daohua Family Law Firm, specializing for ten years in major property, marriage, and family legal services, is an expert in marriage inheritance and family disputes (mediation/trial). It is one of the influential brands in [Shenzhen] for marriage inheritance and wealth management legal services. The team has handled over 1000 cases of marriage inheritance and has extensive practical experience in mediation and litigation in major complex marriage and family disputes, inheritance disputes, will drafting, and family property distribution. The team applies local wisdom, excels in handling difficult divorce property division cases involving Shenzhen small property rights houses, village committee shares, will drafting and notarization, and inheritance disputes, winning unanimous praise from clients.

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