Liquidated damages for divorce and liquidated damages for divorce agreements

Although the relationship between husband and wife is different from the civil legal relationship regulated by the Contract Law, the nature of the divorce agreement should be legally recognized as a type of contract, which is produced by the agreement of the parties and should be regulated by the Contract Law. The Interpretation II of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China can also be seen in the principles and methods of handling disputes in divorce by mutual agreement, as well as the determination of the nature of the divorce agreement. Therefore, if the parties to a divorce agreement regulated by the Contract Law fail to perform their obligations under the agreement or the performance of their obligations does not conform to the agreement, they should bear the liability for breach of contract as stipulated in the Contract Law, and the natural liquidated damages clause also applies to the divorce agreement and is legally binding on both parties.

As for the amount of liquidated damages, the parties can freely agree, but if the liquidated damages are too high or too low, they will face the legal risk of being adjusted by the people's court in the judicial procedure. It is suggested that if monetary payment is involved, it can be agreed that the penalty interest shall not exceed 6 times of the bank loan interest rate in the same period, and a moderate amount of non-monetary payment shall be sufficient, generally not exceeding 500,000 yuan. Legal basis:

If the liquidated damages stipulated in the second paragraph of Article 114 of the Contract Law of the People's Republic of China are lower than the losses caused, the parties may request the court or arbitration institution to increase them; If the agreed liquidated damages are excessively higher than the losses caused, the parties may request the people's court or arbitration institution to reduce them.

The liquidated damages shall be determined by the parties after negotiation, and there is no standard for liquidated damages in the law. However, in general, the standard of liquidated damages should be commensurate with the amount of losses that may be caused to the other party by the breach of contract. If the liquidated damages are too high (more than 30% of the amount of losses), the people's court may, at the request of one party to reduce the liquidated damages, adjust the amount of liquidated damages according to the specific circumstances of the case. Similarly, if the liquidated damages are too low (less than 30% of the actual loss), the non-breaching party can also ask the court to increase the amount of liquidated damages.

Although the marital relationship is different from the general civil legal relationship regulated by the Civil Code, the nature of the divorce agreement is still a kind of contract in law, which arises by mutual agreement and should be regulated by the Civil Code. In addition, the Judicial Interpretation of the Marriage Law (I) has also clarified the principles and methods of handling disputes in divorce by mutual agreement, as well as the determination of the nature of the divorce agreement. Therefore, if the parties fail to perform their obligations under the divorce agreement or the performance of their obligations under the agreement does not conform to the agreement, they should bear the liability for breach of contract under the contract law, and the liquidated damages clause should be applied to the divorce agreement and be legally binding on both parties.

Don't sue to get back these interests, it doesn't have much effect, look at the content of your question, I learned that your house transfer has been handled, and the substantive problem has been solved. So don't sue, because the agreement you signed is an invalid agreement, and the arrears of 300,000 yuan do not exist, but only a binding clause on one party, not the actual amount, so the interest does not exist in the real event. The court will not award you compensation.

In the future, you should also keep in mind that this type of agreement clause, including contract clauses, is an invalid contract clause, an invalid agreement clause. Sign the agreement to promise the transfer, this is a fact, you sue, the court will compel the man to handle the transfer, but the arrears of 300,000 are not real, it is an invalid agreement clause, useless, understand.

Tianjin Lawyer Li (Professional Divorce Lawyer):

Yes, you can. A direct lawsuit is sufficient.

Lawyers should know that what the client needs is not a pile of legal provisions, but a solution to the problem.

Lawyer Li believes that providing free legal advice is a way for lawyers to give back to the society, and lawyers should handle divorce cases with the goal of closing the case and leaving no hidden dangers.

Interest can be claimed. If there is an agreement in the agreement, the interest shall be calculated from the date of expiration of the three-month period agreed in the agreement.

He can be required to pay liquidated damages as agreed. The litigation claim should be expressed correctly and with technical content.

You can write it on the indictment, and as for whether you can get it back, it depends on the free will of the judge handling the case.

You can sue the other party for performance of the agreement and pay liquidated damages.

Legal analysis: liquidated damages for divorce agreements, which are not clearly stipulated by the law. The amount of liquidated damages in a divorce agreement may be determined by the parties through specific negotiation, and the relevant laws and regulations do not provide for specific monetary standards.

However, when the amount of liquidated damages agreed exceeds 30% of the actual losses caused, it may be determined that the agreed liquidated damages are too high, and the court may be requested to appropriately reduce them.

Legal basis: Article 11 of the Civil Code of the People's Republic of China Article 109 In case of any of the following circumstances, resulting in divorce, the innocent party has the right to claim damages:

a) bigamy; 2) cohabitation with another person;

3) Committing domestic violence;

4) Abuse or abandonment of family members;

5) There are other major faults.

Legal analysis: If Yu Xiangguo is a party who fails to perform the judgment after the court judgment takes effect, one party may apply to the people's court for compulsory enforcement in accordance with the law, requiring the party who does not perform the obligation to perform the obligation.

Legal basis: Article 1091 of the Civil Code of the People's Republic of China In any of the following circumstances, which leads to divorce, the innocent party has the right to claim damages:

a) bigamy; 2) cohabitation with another person;

3) Committing domestic violence;

4) Abuse or abandonment of family model court members;

5) There is a major fault in his uprightness.

If the parties are unable to reach a consultation on relevant matters, they may file a lawsuit with the people's court on this basis, request a judgment in accordance with the law, and then request enforcement according to the effective judgment. If the parties do not perform the effective judgment, they can directly apply for compulsory enforcement.

1. What should I do if I don't pay back the money I lent?

The parties may negotiate first and agree to repay the loan in installments, and if the negotiation fails, they may file a civil lawsuit with the people's court to demand that the other party repay the arrears. If the IOU or contract between the two parties has an agreed place of jurisdiction, a lawsuit shall be filed in accordance with the agreement; If there is no agreement, a lawsuit may be filed with the people's court at the place where the defendant is domiciled.

After the judgment is issued, if the defendant does not perform the content of the judgment, he may apply for compulsory enforcement and take corresponding enforcement measures, such as sealing and seizing the property of the person subject to enforcement, applying for the person subject to enforcement to be included in the list of judgment defaulters, etc.

2. What should I do if I am unable to pay child support if I increase the maintenance expenses?

If the negotiation fails, the parties may file a lawsuit with the people's court with jurisdiction, and the people's court shall decide whether the increase should be made, and if so, order the paying party to use its property to offset the maintenance. If it should not be increased, the other party's claim for an increase in child support is dismissed.

3. What should I do if the agreement is not performed?

If the other party fails to perform the content of the agreement, the other party may file a lawsuit with the court to require the other party to continue to perform or terminate the contract and compensate for the corresponding losses. The judgment rendered by the court on the dispute between the parties and the defendant is an effective legal document and has the effect of enforcement. If the other party fails to perform the effective judgment, the party may apply to the court for enforcement, and the court will take compulsory measures against it to compel it to perform its obligations.

After the contract takes effect, if the parties have not agreed on the quality, price or remuneration, place of performance, etc., or the agreement is not clear, they may supplement it by agreement; If a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant provisions of the contract or transaction customs.

Article 1087 of the Civil Code of the People's Republic of China.

In the event of a divorce, the joint property of the husband and wife shall be disposed of by mutual agreement; If an agreement is not reached, the people's court is to make a judgment based on the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman, and the innocent party.

The rights and interests enjoyed by husbands or wives in the contracting and management of family land shall be protected in accordance with law.

Article 1088.

If one of the spouses bears more obligations due to raising children, taking care of the elderly, assisting the other party in work, etc., he or she has the right to request compensation from the other party at the time of divorce, and the other party shall give compensation. The specific measures shall be agreed upon by both parties; If the agreement is not reached, the people's court shall make a judgment.

Legal Analysis:1The divorce agreement should clarify the children's property and joint claims and debts, and you can ask a lawyer to help you draft it, clarify the rights and obligations of both parties, and distribute the child support and property.

2.The divorce agreement must be accompanied by the Civil Affairs Bureau to handle the divorce or after the court has made a judgment before it has legal effect, otherwise it has no legal effect. If your divorce agreement has been handled by the Civil Affairs Bureau or has been adjudicated by the court, and the other party does not perform it, you can sue the other party to perform according to the agreement.

Legal basis: Civil Code of the People's Republic of China

Article 1076:Where both husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration in person at the marriage registration authority.

The divorce agreement shall clearly state the parties' expression of intent to divorce voluntarily and the consensus on matters such as child support, property, and debt handling.

Article 1077 Within 30 days from the date on which the marriage registration authority receives the application for divorce registration, if either party is unwilling to divorce, he or she may withdraw the application for divorce registration from the marriage registration authority.

Within 30 days after the expiration of the period provided for in the preceding paragraph, both parties shall apply in person to the marriage registration authority for the issuance of a divorce certificate; If Lu Qichun does not apply, it shall be deemed to have withdrawn the application for divorce registration.

Article 1078:Where the marriage registration authorities ascertain that the parties have indeed divorced voluntarily and have reached a consensus on matters such as child support, property, and debt disposition, they shall register and issue a divorce certificate.