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How to Guarantee the Exercise of a Real Asset as a Gift
According to the Civil Code of the People’s Republic of China, a man and a woman may agree, either before or during their marriage, that either of them will give as a gift an asset to the other, whether as a condition for their marriage or not. The asset given as a gift constitutes the personal property of the spouse that receives the gift rather than their community property.
Generally, such an agreement is valid and enforceable. But if the asset given as a gift is a real asset, special requirements are imposed.
According to Article 209 of the Civil Code, the creation, alteration, transfer, or extinguishment of real assets shall not become valid unless registered according to law. The SPC's Interpretations of Title Five "Marriage and Family" of the Civil Code also states that the spouse making the gift of a real asset may cancel the gift agreement before the title transfer is registered.
Therefore, if the title of the real asset given as a gift is not registered in the name of the receiving spouse, his/her claim for performance of the gift agreement in a divorce case will not be sustained.
In order to solve such problems and guarantee the legal rights and interests of the receiving spouse, the following two strategies are recommended.
The first is to have the real asset as a gift registered in the name of the receiving party promptly after the gift agreement is reached. In addition, the receiving spouse should properly retain the gift agreement in case any dispute occurs.
The second is to have the gift agreement notarized by a public notary promptly after its conclusion. A notarized gift agreement may not be canceled or withdrawn by the spouse giving the asset as a gift unless otherwise agreed by both the spouses. Even if the spouse giving the gift disposes of the real asset otherwise, the receiving spouse may claim compensation, including the actual value of the real asset and liability for breach, from the gift giver.
Where the spouses agree, before or during their marriage, that a real asset owned by either spouse will be given to the other spouse as a gift or owned by both spouses as their community property, cancels the gift agreement before alteration of title transfer, and the other spouse claims performance of the gift agreement, the people's court shall settle the dispute in accordance with the provisions of Article 658 of the Civil Code.
Robert Zhang 
Steve Li 