Simon Says: Can a spouse give away a property in common without consent of the other?

Published
08/30/2017 by

This is the twenty-seventh in a weekly series of legal advice provided in a short and entertaining story format.

 

每周轻松有趣法律常識故事系列 - 第27篇

 


Keywords: Marriage Law, Property in Common, Tenants in Common, Consent

 

关键词:婚姻法、共有财产、共同共有人、同意 

 

 

Can a spouse give away a property in common without consent of the other?


未经另一方同意,夫妻一方是否可以捐赠双方的共有财产?

 

 

Jackson and Jill are a couple for more than 10 years. Jackson, 40, is the Vice President of Beijing Jack Film Limited. Jackson and Jill are super fans of Mei Lanfang, the most distinctive Beijing Opera Guru in the past century. As a tin wedding gift, Jackson bought Jill a quadrangle at XiCheng nearby the Forbidden City. With this Quadrangle, they can visit the Mei Opera House owned by the son of Master Mei at the adjacent Hutong as often as they wish.

 

马小刚和杨小兰结婚有十年了。40岁的马小刚是北京马大刚电影有限公司的副总裁。马小刚和杨小兰两人都是上世纪中国最杰出的京剧大师—梅兰芳的铁杆戏迷。马小刚在西城区故宫附近给杨小兰买了一间四合院,作为结婚十周年的礼物。有了这个四合院,他俩就可以随时去只隔一个胡同、由梅兰芳大师之子所经营的梅兰芳剧院了。


After Jackson’s dad passed away, he naturally became the new CEO. He decided to get a new secretary, a pretty fresh graduate. After a week of choosing, his eyes fell on a beautiful graduate from the Beijing Film Academy, Angelina.

 

父亲去世后,马小刚顺理成章地接任公司总裁一职。马小刚决定新招聘一名秘书,最好是年轻漂亮的大学生。挑了一个礼拜后,他最终确定了人选,北京电影学院一位漂亮的毕业生——冰冰。

 

Jill decided to investigate after she heard about the ‘business trip’ in the Fiji Islands. No business trip would require a 7-star hotel with any client. She found out about the new secretary and was furious. She obviously knew what was up.

 

杨小兰听说丈夫前往斐济群岛“出差”,就决定开始对其进行调查。出差去见客户根本不需要订七星级酒店。发现丈夫找了这位新秘书后,杨小兰勃然大怒。她当然知道这是怎么回事。

 

Without telling Jackson, who was on the trip, she gave away her RMB200 million Quadrangle to charity as a punishment.

 

于是,为了惩罚丈夫的行为,她没告诉正在出差的马小刚,就把那座价值2亿人民币的四合院捐赠给了慈善机构。

 

Jackson, after realizing this, went straight to his wife. “What happened to our Quadrangle?” he yelled, outraged. “Well, was the girl worth it? That is the result of cheating on me.” Jill replied snugly. “Get me the Quadrangle back, or I’m divorcing you.” Jackson threatened. “Divorce me then. You divorce me, I get half your assets, and you are not getting the Quadrangle back anyways.”

 

马小刚一发现这件事,就勃然大怒,直接去找杨小兰,“你把四合院弄到哪里去了?。“你以为那个小姑娘值这么多么?这就是你背叛我的结果。”杨小兰幸灾乐祸道。“把四合院要回来,不然就离婚,”马小刚威胁道。“那就离婚吧。离了婚,你的四合院要不回来,还得分一半财产给我。”杨小兰嚷道。

 

Is what Jill doing lawfully?

 

杨小兰的做法是否合法?

 Simon Says - Episode 27 Can a spouse give away a property in common without consent of the other?

 

Prof Simon Says:

西门教授说法:

 

No, Jill has no right to give away the Quadrangle without getting Jackson’s consent.

 

The Quadrangle was bought after the marriage, so in the eyes of Chinese Marriage Law, it is considered as a property in common and Jackson and Jill are tenants in common. Before disposal of the Quadrangle, the couple has to agree to sell or dispose of it together, as they are considered as a family being a unit. Giving away the Quadrangle is considered as causing damage to the property in common. Unless otherwise a prior agreement made by the couple, doing so is against the Chinese Marriage Law and is not enforceable under Chinese Law. Jackson can initiate legal proceedings against the donor and donee and the court shall set aside the donation agreement.

 

不合法。杨小兰无权在未征得马小刚同意就捐赠四合院。四合院是在婚后购买的,因此,根据中国婚姻法,是马小刚和杨小兰的共有财产,而双方是该财产的共同共有人。因为夫妻组成的家庭属于一个整体,只有夫妻双方同意才可以处置四合院。杨小兰捐赠四合院是损害双方共同共有人财产的行为。除非夫妻双方事先协商一致,否则就违反了中国婚姻法,按照中国法是不可执行的。马小刚可以向赠与人及赠与受益人提出诉讼,法院会取消该份赠与合同。

 

For more about this or to contact Professor Simon Choi at www.acmeardent.comsimonhkchoi@163.com, +86 13823677853 or by WeChat: simonhkchoi. 

 

ACME Ardent's Simon Choi WeChat QR Code

 

 

Simon Choi

About the Author: Professor Simon Choi

Prof Simon Choi, solicitor and linguist, is an international lawyer, qualified to practise law in England & Wales and in Hong Kong, China. Simon graduated from law schools of the Peking University, the University of London and the University of Hong Kong respectively, with an in-depth knowledge of Chinese laws and common laws and with more than 20 years experience in China practice and international trade, investment, finance, merger & acquisition. He is an adjunct professor of laws at the Zhongnan University of Economics and Law. Simon is the founding partner of Acme Ardent and can be reached at simonhkchoi@163.com or +86 13823677853.

 

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