In June 2009, Wang borrowed 100000 yuan from Lin and agreed to repay it in September of that year, but Wang did not repay it when it was due. Lin filed a lawsuit with the competent court in March 2010, but Wang negotiated a fake divorce with his wife Ding the day after receiving the court summons in order to evade debt and obtain a divorce certificate. The divorce agreement between the two parties stipulates that Wang's personal property and all family property before marriage shall belong to the female partner Ding, and all debts shall be borne by Wang. In April 2010, the court made a judgment that due to Wang's failure to repay the amount within the specified time limit, Lin provided the court with clues to Wang's property during the marriage relationship and applied for compulsory enforcement of these properties.

After investigation by the court, it was confirmed that the debt owed by Wang of 100000 yuan was a debt during the existence of the marital relationship, belonging to the joint debt of the couple. The debt should be borne by the joint property of the couple during the existence of the marital relationship. Therefore, the property transferred by Wang was lawfully sealed off.

During the execution period, Ding raised an objection, believing that at the time of his divorce from his ex husband Wang, the joint debt and property of the couple had been divided, and the 100000 yuan debt should not be shared by him. The court lawfully dismissed his objection.

The author believes that currently, in the process of court enforcement, there are quite a few people being executed who are trying their best to evade the law and avoid execution. Fake divorce is a common method, which is generally manifested in the agreement of the civil affairs department to divorce, which stipulates that all or most of the joint property, or even personal property, of the couple will be owned by one party, while the party in debt will bear all the debt, resulting in the debtor having no property to enforce on the surface, in order to achieve the goal of evading debt.

The focus of the dispute in this case is whether the debt assumption in the divorce agreement signed by both parties is valid and whether it can confront a third party? The author believes that this clause is invalid and cannot be used against third parties.

Firstly, the debtor's behavior of evading debt and law by dividing property through fake divorce falls under the category of invalid civil acts as stipulated in Article 58 of the General Principles of the Civil Law. Because the behavior of the actor has the following four characteristics: 1. The expression of intention is not true; 2. Malicious collusion or damage to the interests of the state, collective, or third parties; 3. Violating laws and public interests; 4. Covering up illegal purposes in a legal form. According to Article 58 (2) of the General Principles of the Civil Law, this civil act has no legal binding force from the beginning. There is no need to wait for the parties or other interested parties to assert invalidity or for the court to rule that it is invalid, as it is unconditionally invalid. So when the people's court hears or executes such debt cases, it should not be bound by such false civil acts (property division agreements), let alone recognize its legality and effectiveness. Instead, it should legally settle the joint debts of the debtor's original husband and wife's joint property. The debt is jointly repaid by the debtor and the original spouse.

Secondly, according to Article 41 of the Marriage Law: "At the time of divorce, the debts owed by the couple for their common life shall be jointly repaid. If the joint property is insufficient to be repaid, or if the property belongs to each other, the two parties shall reach an agreement to repay the debts. If the agreement cannot be reached, the people's court shall make a judgment." Therefore, it can be seen that whether the divorce is through administrative or litigation procedures, the debts shall be repaid with the joint property first. If the debtor first divides the common property upon divorce, and in form, it is clear that the common debt is to be repaid by one person, but in reality, the debtor is unable to repay the debt due to their inability to do so, then this civil act not only violates the procedures and principles for debt repayment stipulated in Article 41 of the Marriage Law, but also infringes on the legitimate civil rights and interests of the creditor.

Therefore, in practice, if the parties have already "divorced" through administrative procedures, and have divided their property, failed to repay their debts, or determined that the debts will be repaid by one person, but the debtor is unable to repay them, and later the creditor files a lawsuit to demand repayment of the debts, the people's court should list the defendant's original spouse as the party of the obligation subject in the trial of the case. If a party divorces through litigation and divides their property during the divorce process, fails to pay off debts or conceals the fact of debts or clarifies that one party is responsible for the debts, but one party is unable to repay them, the people's court shall use the trial supervision procedure for retrial and make a new judgment on debt repayment after the creditor brings a lawsuit. Regardless of the applicable trial procedure, it is necessary to clarify that both parties bear the original joint debt. However, in the process of execution, if the parties divorce through litigation procedures and the legal documents have errors in debt repayment that are difficult to execute, the execution should be suspended, and the trial committee should study the retrial of the original divorce case and re confirm the debt burden. If the parties divorce through administrative procedures, during the period of the debtor's marital relationship, the people's court has already concluded the debt case and should consider the debt specified in the legal documents to be the joint debt of the debtor's spouse. If the debtor is unable to repay or evades debt, they can seal up the property that was originally jointly owned by the couple and is now owned and used by one party, and evaluate the auction or sale to offset the debt in accordance with the law. This not only protects the legitimate rights and interests of the parties involved from loss, but also reflects the fairness and impartiality of the judiciary.

① Legal Knowledge Network, Exploring the Problem of "Fake Divorce" to Avoid Debt

② 110 Legal Consultation Network, Effectiveness of Debt Repayment for Divorce Agreements, Lawyer World, July 1998