Introduction

Generally speaking, a divorce agreement is a mutual expression of will voluntarily reached by a couple after deciding to part ways. It typically covers the divorce decision, property division, child custody, and handling of other debts and claims. Once signed and filed with the civil affairs department, it binds both parties. In real life, for various reasons, it is not uncommon for one or both parties to find the agreement unreasonable and request revocation of the divorce agreement terms. So what do the relevant laws say, and how is this reflected in judicial practice? This article aims to provide a brief exploration and research on this topic, offering reference for understanding how courts handle such cases.

Part I: Legal Basis for Divorce Parties’ Claims to Revoke Divorce Agreements

Upon reviewing the relevant legal provisions, China’s Civil Code provides for invalidity and revocability in the formation of marriage relationships, but does not specifically address the revocation of divorce agreements. However, the Judicial Interpretation of the Civil Code’s Marriage and Family Section (I) provides corresponding legal remedies in Article 70: “Where husband and wife after reaching a divorce agreement request the revocation of the property division agreement, the people’s court shall accept the case. After examination, if the court does not find fraud, coercion, or other circumstances existing at the time of signing the property division agreement, the claim shall be dismissed.” It is worth noting that the following key points should be particularly noted when interpreting this provision:

1. While both involve signed agreements, the right to claim revocation under this judicial interpretation is granted only to both parties who signed the divorce agreement and completed divorce procedures at the marriage registration authority, and does not include parties who reached a mediation agreement and concluded the case through mediation in the people’s court. The reason for this distinction, in the author’s view, is mainly that the mediation agreement is signed under the court’s主持 (chairmanship/supervision), and its content is reviewed by the court to ensure the authenticity of both parties’ expressions of will and the legality of the agreement. However, when parties complete divorce procedures at the marriage registration authority, the submitted agreement only undergoes formal examination by the registration authority, lacking guarantees regarding whether improper circumstances existed during the signing process and whether the agreement content is legal. Therefore, it is necessary to provide certain judicial remedies.

2. This judicial interpretation only addresses the situation where both parties to a divorce regret the property division issue and request revocation, and does not express whether the marriage relationship can be restored after revocation of the divorce agreement. That is, this judicial interpretation actually targets the contractual content within the divorce agreement aimed at dividing property, and does not include personal status rights. The author’s understanding is that the general provisions of the Civil Code regarding civil juristic acts do not automatically apply to the marriage and family field, which is evidenced by the fact that the Marriage and Family Section provides special provisions for voidable marriage registrations. Therefore, from the perspective of systematic interpretation, provisions regarding revocation within a divorce agreement should be strictly limited to the content of this judicial interpretation, rather than simply applying the general provisions.

3. In this provision, the expression “does not find fraud, coercion, or other circumstances existing at the time of signing the property division agreement” contains an “etc.” (等), which should not be overlooked. This means that regarding the applicable circumstances for the right to revoke divorce property division agreements, the law has not absolutely special-cased this issue. That is, in addition to fraud and coercion, the circumstances of “material misunderstanding” and “unconscionability” applicable to general civil juristic acts under the general provisions can serve as grounds for revoking property division terms in divorce agreements. The reason “material misunderstanding” and “unconscionability” are not explicitly listed may reflect the legislative intent that emphasizes the special nature of marriage relationships once again, and that personal status relationships cannot be disregarded and simply applied to other legal relationships in their entirety.

Therefore, the application of material misunderstanding and unconscionability in judicial practice is inevitably subject to strict limitations.

Part II: Comparison with Other Countries’ Relevant Provisions

As explained above, Article 70 of the Judicial Interpretation of the Civil Code’s Marriage and Family Section (I) regarding divorce agreements addresses the property division between husband and wife during divorce. Fundamentally, it falls within the scope of spousal property agreements, and on this issue, most countries have relatively similar conditions for revocation, though there are differences in specific manifestations. For example, under German law, spouses cannot dissolve their marriage through agreement-based divorce; therefore, to achieve divorce in Germany, a court judgment is required, meaning there is no concept of revoking a divorce agreement in Germany. However, if the couple had a property division agreement before divorce, they may claim revocation of such property division agreement. Another example: although similar to China, Japan provides that divorce agreements signed due to fraud or coercion may be revoked, this right generally extinguishes three months after the fraud or coercion circumstances cease, making the time control relatively more urgent compared to China’s provisions mentioned below. As a side note, Japan’s divorce system once had a distinctive provision: according to the original Article 733 of the Japanese Civil Code, except for specially enumerated circumstances, a woman generally could not remarry until 100 days had elapsed from the date of dissolution or revocation of her previous marriage. Prior to 2016, this prohibition period was as long as 180 days, and further exploration of its evolution could trace back to the early Meiji era. Such provisions are relatively rare among mainstream countries worldwide and have often been widely controversial among the Japanese public from the perspective of gender equality. It was not until the end of 2022 that the cabinet-approved civil code amendments finally abolished this provision, taking effect in April 2024. The reason for mentioning this anecdote is to reflect on how difficult it is for any country to make progress in modifying laws.

Part III: How to Timely Exercise the Right to Revoke Divorce Agreements

Unlike Article 9 of the previous Judicial Interpretation of the Marriage Law (II), Article 70 of the Judicial Interpretation of the Civil Code’s Marriage and Family Section (I) deleted the expression “within one year,” meaning there is no relevant provision for a special limitation period for exercising the right to revoke divorce agreements under this judicial interpretation. Therefore, it remains subject to the relevant provisions on the exclusion period for exercising revocation rights under the Civil Code. Specifically: a party who was defrauded, coerced, or subjected to unconscionability should file a claim within one year from the date they knew or should have known of the revocation cause; based on material misunderstanding, the revocation right must be exercised within 90 days from the date they knew or should have known of the revocation cause. Additionally, if the revocation right is not exercised within five years from the date of signing the divorce agreement, the revocation right extinguishes. (The legal basis for the above conclusions is Article 152 of the Civil Code.)

Part IV: Discussion and Exploration of Practical Cases

Since the law provides that revocation rights can be exercised on divorce agreements, what is the actual situation in practice? The author believes that understanding some practical cases decided by courts can provide guidance. After searching大量 (extensive) cases, it can be found that generally, because civil cases require a very high standard of proof for fraud and coercion—reaching “排除合理怀疑” (beyond reasonable doubt)—and material misunderstanding and unconscionability often involve subjective evidence such as parties’ cognitive states that are difficult to collect, courts are very strict in their evidentiary requirements when examining whether there are revocable circumstances in property division agreements within divorce agreements. Moreover, unlike general civil contracts, divorce agreements, in addition to purely interest-based considerations, also involve factors such as dissolution of personal status relationships, marital fault, child custody, marital feelings, and urgency of divorce. Therefore, courts’ approach differs from the market economy fairness and equivalent consideration principles applicable to other general civil juristic acts, and courts will not easily认定 (determine) that an agreement where one party waives all or most of the property constitutes unconscionability or material misunderstanding.

For example, in a case the author previously encountered, the male and female parties had divorced by agreement and completed registration at the Civil Affairs Bureau. Although the male party had left with nothing and multiple houses and vehicles belonged to the female party, the female party still demanded the male party pay substantial compensation and late payment penalties according to the divorce agreement. The male party argued that the divorce agreement was signed under fraud, coercion, and unconscionable circumstances, and therefore filed a counterclaim requesting revocation of the clauses regarding substantial compensation. However, because the male party failed to retain and provide strong evidence of fraud and coercion, the dispute gradually focused on whether unconscionability existed. On this issue, the court’s main view was that the male party could not provide evidence proving that he was in a predicament or lacked判断力 (judgment/discernment) when signing the agreement. Additionally, divorce agreements have a certain特殊性 (special nature), and in addition to purely interest considerations, emotional factors are inevitably involved, so the parties’ autonomy should be respected. Therefore, although from an ordinary person’s perspective there was enormous inequality in rights and obligations in this divorce agreement, given the male party’s inability to provide充分的 (adequate/sufficient) evidence of his subjective state and the special nature of divorce agreements, the court’s final judgment could not support the male party’s revocation claim.

The author was also prompted to reflect on this case. The court’s view that the male party was “in a predicament or lacked judgment” derives from Article 151 of the Civil Code, which also contains an “etc.” This indicates that the Civil Code has made a catch-all provision for unconscionability. The author’s understanding is that in addition to being in a predicament and lacking judgment, the causes of unconscionability also include circumstances such as “being in an urgent situation, lacking experience, or having relatively weak will.” At the same time, this provision also emphasizes that the determination of such circumstances should also be strictly controlled. This can be confirmed by the court’s approach in handling this case’s focus.

Additionally, case (202X)X0X Min Zhong No. 1103X provides some reference for such issues. In that case, the divorce agreement stipulated that the male party would independently raise the child and bear all expenses. After seven years of raising the child, the male party discovered the child was not his biological child. He then sued to revoke the property division provisions in the divorce agreement on the grounds of “unconscionability.” Although his claim was supported in the first instance, the second-instance judge believed that the male party’s claim that he made concessions on property rights to the female party in order to obtain custody rights did not have logical inevitability, and that the property division result was not significantly imbalanced. The appeal was dismissed. Through this case, the risks and difficulties of seeking to revoke a divorce agreement on the grounds of “unconscionability” in practice are evident.

Additionally, the author has engaged in some assumptions and speculation about this case. If the male party had understood in advance that courts exercise particularly strict control over the determination of “unconscionability,” and had shifted the dispute focus to “fraud,” might this have had a more positive effect on his claim? Because with the support of paternity testing technology, proving that the female party defrauded him regarding the child’s biological father and caused a series of adverse consequences might be relatively easier.

Part V: Conclusion

Through the above analysis, the author believes some warnings and risk awareness can be gained. Although the law provides a revocable remedy for property division agreements in divorce agreements, as contracts with personal attributes, courts in practice generally take the view that “fairness” is not the sole criterion for property division, and it is difficult to measure whether unconscionability exists. Regarding whether coercion and fraud existed when signing the divorce agreement, courts also have high evidentiary requirements, and the claiming party often cannot provide evidence, making the realization of such revocation rights more difficult compared to other types of contracts.

Therefore, for parties involved, they should be particularly cautious when making property division agreements in divorce by agreement. When necessary, they should seek professional assistance to avoid situations where regret afterward is already too late.