It is quite common for one spouse to request adding their name to the property purchased solely by the other spouse before marriage, either before or after marriage. However, if the property is purchased with a mortgage loan, the formal title change registration cannot be completed directly until the loan is fully repaid.
For this reason, many couples sign a prenuptial or marital property agreement, stipulating that the property purchased by one party before marriage shall be regarded as marital joint property of both spouses.
In judicial practice, does signing such a property agreement settle the matter completely? May one party unilaterally exercise the right of revocation before completing title transfer registration? Let us analyze a real case.
Case Brief
Zou and Zhao registered their marriage in 2007. Due to marital discord, they began living apart in 2012. In 2013, Zou filed a divorce lawsuit against Zhao.
During the litigation, Zou submitted a Housing Co‑ownership Agreement signed by both parties on November 30, 2011. The agreement stipulated that the residential property purchased solely by Zhao before marriage would be jointly owned by Zhao and Zou, with each holding a 50% property share, yet no title change registration was ever completed. Zou now claims partition of the property. Zhao contends that he is entitled to revoke the gift since the property has not been transferred.
Court Judgment
The first-instance court held that pursuant to Article 6 of the Judicial Interpretation (III) of the Marriage Law of the People’s Republic of China:
Where parties agree, either before marriage or during the subsistence of marriage, to gift real estate owned by one party to the other, and the donor revokes the gift before title registration of the gifted real estate is completed, while the donee requests specific performance, the people’s court shall handle the case in accordance with Article 186 of the Contract Law.
In this case, the disputed property remained registered under Zhao’s name without title alteration. Zhao is legally entitled to revoke the gift, and the clause granting Zou a 50% share under the Housing Co‑ownership Agreement has not taken legal effect.
Dissatisfied with the first-instance judgment, Zou filed an appeal. The second-instance court confirmed that no title registration was completed after the agreement was signed. The original court’s ruling that the agreement had not come into force was well‑founded in both fact and law. The appeal was dismissed, and the original judgment upheld.
Legal Commentary
In judicial practice, two mainstream views exist on whether one party may unilaterally revoke a marital property agreement concerning adding a spouse’s name to a pre-marital property.
View One
Under Article 19 of the Marriage Law, spouses may agree that property acquired during marriage and pre-marital property shall be owned separately, jointly, or partially separately and partially jointly.
A marital property agreement voluntarily concluded by both parties reflecting their true intent, without violating mandatory provisions of laws and administrative regulations, and without harming public interests or the legitimate rights and interests of third parties, shall be valid and legally binding on both sides. Accordingly, neither spouse has the right of unilateral revocation.
View Two
Under Article 6 of Judicial Interpretation (III) of the Marriage Law, where parties agree to gift real estate owned by one party to the other before or during marriage, the donor may revoke the gift prior to title registration. The court shall apply Article 186 of the Contract Law, which provides that a donor may revoke a gift before the transfer of rights over the gifted property. This rule does not apply to gift contracts for public welfare or moral obligation purposes such as disaster relief and poverty alleviation, or notarized gift contracts. Hence, one spouse may unilaterally revoke the agreement.
The author endorses the first view. The Contract Law primarily regulates commercial civil acts between equal private parties, whereas marital property agreements involve marriage, property, personal status, emotional bonds and other complex factors, representing a comprehensive balance of interests between husband and wife.
Once a marital property arrangement takes effect, both parties must exercise rights and perform obligations in accordance with the agreement, and the distribution of marital property interests shall be governed strictly by the valid arrangement.
Pursuant to Article 136 of the General Principles of the Civil Law, a civil juristic act takes effect upon formation, unless otherwise prescribed by law or agreed by the parties. An actor may not arbitrarily alter or rescind a civil juristic act unless permitted by law or consented to by the other party.
Therefore, both spouses shall strictly abide by the property agreement and may not alter or revoke it at will. Any necessary alteration or revocation must be reached through mutual negotiation and documented in written form.