Case Background
Our firm represented a Hong Kong SAR resident (Plaintiff) in a dispute over the division of Shenzhen real estate with her ex-husband (Defendant). They married in mainland China in 1991 and later relocated to Hong Kong. During their marriage in 1998, they purchased two properties in Shenzhen (both registered under Defendant’s name). A 2005 Hong Kong court divorce decree did not address these properties. After the effectiveness of the Hong Kong judgment was recognized by a Chinese court in 2012, Plaintiff sought equal division of the properties.
Case Challenges
1. Conflict of Laws
- Defendant argued for application of Hong Kong’s separate property regime (property in one’s name belongs solely to that person).
- Plaintiff argued for application of mainland China’s community property regime.
2. Obstacles in Connecting Foreign Judgment
- The Hong Kong divorce judgment did not dispose of the mainland properties.
- Defendant invoked the principle of “res judicata” (one matter cannot be litigated twice) to block the claim.
3. Malicious Procedural Delays
- Defendant filed three objections claiming the properties had been sold to third parties (failed to provide evidence).
- Used jurisdictional objections to delay litigation for 6 years.
4. Special Property Nature
- Properties had “Green Cover” real estate certificates restricting transactions (only allowing transfer via inheritance or divorce division).
Highlights of Our Services
1. Precise Identification of Governing Law
- Cited Article 188 of the Opinions on the General Principles of Civil Law: Property division in divorce governed by the law of the forum.
- Excluded application of Hong Kong’s separate property regime (as marriage was formed and property located in mainland).
2. Severed Effect of Foreign Judgment
- Argued that res judicata did not apply since the Hong Kong judgment did not cover the property division.
- Relied on the 2012 (2012) Shen Zhong Fa Min Chu Zi No. X ruling establishing the right to division.
3. Countered Malicious Procedures
- Refuted property sale claim in court (no record of property title change).
- Exposed the restricted tradability of the “Green Cover” properties (Shen Fang Di Zi No. xx).
4. Substantively Fair Allocation
- Achieved direct physical division of the two properties of equivalent value (each 53.01m²).
- Ensured procedural costs borne by the party abusing procedures.
Case Outcome
1. Final Property Division
- Property X01 awarded to Plaintiff.
- Property X02 awarded to Defendant.
2. Sanctions for Procedural Abuse
- First instance, second instance, and retrial litigation fees (total 1,902 CNY) fully borne by Defendant.
3. Landmark Rule
- Clarified the feasible path for dividing “Green Cover” properties in divorce.
4. Judicial Efficiency Upheld
- Final judgment rejected all procedural objections (Shen Zhong Fa Min Zhong Zi No. x).
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