Can a gift of a house between spouses be revoked on divorce?
Where spouses agree, before or during the marriage, to give a house owned by one of them to the other or to hold it in common, and the donor revokes the gift before the transfer is registered, the courts deal with the dispute under Article 32 of the judicial interpretation on marriage and family and Article 658 of the Civil Code. The donor may revoke before the right in the property passes, unless the gift has been notarised or is of a public-interest or moral character. Once the transfer is registered the right to revoke at will is lost.
The text of the provisions
Article 32 of the Judicial Interpretation (I) of the Supreme People's Court on the Book on Marriage and Family of the Civil Code
Where, before or during the marriage, the parties agree to give a house owned by one of them to the other or to hold it in common, and the donor revokes the gift before the change is registered, the people's court may deal with a request by the other party for an order of continued performance in accordance with Article 658 of the Civil Code.
Article 658 of the Civil Code
A donor may revoke a gift before the right in the donated property is transferred. The preceding paragraph does not apply to a gift contract that has been notarised, or to one of a public-interest or moral character, such as a gift for disaster relief, poverty alleviation or assistance to the disabled, that may not be revoked in accordance with law.
01 When the right to revoke at will may be exercised
The interpretation makes clear that a donor may revoke a gift where particular conditions are met.
(1) The spouses have concluded a contract of gift of the house
Revocation presupposes an agreement between the parties to give the house. Without such an agreement, whether because no contract was signed or because the contract has not validly come into being, there is no basis for exercising the right to revoke at will.
(2) The subject of the gift is a house
Where what is given is movable property, the rules in the property part of the Civil Code apply: in principle the transfer of the right is complete once the thing is delivered, and the right to revoke at will can no longer be exercised.
(3) The house has not yet been registered as transferred, nor the registration changed to add a name
A house is immovable property, and the right in it changes on registration; only then does ownership pass. Even if one spouse is in actual occupation of the other's immovable property, ownership does not pass without registration of the transfer or of a change adding a name, and, unless the gift has been notarised, the donor may still revoke at will. Once the transfer is registered, ownership passes lawfully to the donee and the donor's right to revoke at will is extinguished.
02 The statutory right to revoke
Beyond the period before registration and notarisation, in which the donor may revoke, the law also provides that in certain circumstances a donor may still revoke the contract of gift.
The text of the provisions
Article 663 of the Civil Code
A donor may revoke a gift where the donee:
(1) seriously infringes the lawful rights of the donor or of the donor's close relatives;
(2) having a duty to support the donor, fails to perform it; or
(3) fails to perform an obligation stipulated in the contract of gift.
The donor's right to revoke shall be exercised within one year from the date the donor knew or ought to have known of the ground for revocation.
Where any of those three grounds exists, the person entitled to revoke may do so within one year of knowing, or of ought to have known, of it, whether or not the contract has been notarised, whether or not the property has been delivered, and whether or not the gift is of a public-interest or moral character.
03 Is an agreement not to go back on the gift effective?
To guard against a change of mind, spouses may stipulate in the contract of gift that the donor gives up the right to revoke at will. Is such a stipulation effective, or can the statutory right to revoke be used to undo an agreement not to go back on the gift?
The Supreme People's Court's civil division, in its Understanding and Application of the Judicial Interpretation on the Book on Marriage and Family of the Civil Code, observes that an agreement to give up the right to revoke at will expresses the autonomy of both spouses, that the donor weighed the clause carefully before signing, and that the donor, as the holder of the right, voluntarily gave up his or her own property right, which accords with the rule that a party may dispose of his or her civil rights within the limits allowed by law. The agreement is therefore effective and binding on the donor.