2009年6月，王某向林某借款10万元，约定于当年9月还清，可王某到期未还。林某无奈于2010年3月向管辖法院提起诉讼，王某为了逃避债务在收到法院传票后第二天与妻子丁某协商假离婚，领取离婚证。双方的离婚协议书约定，王某婚前个人财产及家庭所有财产均归女方丁某所有，所有债务则由王某承担。2010年4月法院作出判决，因王某未按判决指定期限偿还款项，林某向法院提供了王某在婚姻关系存续期间的财产线索，申请强制执行这些财产。

经法院调查确认，王某所欠10万元债务系夫妻关系存续期间的债务，属夫妻共同债务，应当以夫妻关系存续期间的夫妻共同财产来承担该债务，故依法查封了王某转移的财产。

执行期间，丁某提出异议，认为其与前夫王某离婚时就夫妻共同债务及财产已进行分割，该10万元债务不应当由其共同承担。法院依法驳回了其异议。

笔者认为，目前在法院强制执行过程中，有相当多的被执行人挖空心思规避法律，逃避执行。其中假离婚是一种常见手段，一般的表现就是在民政部门协议离婚，约定将全部或大部分夫妻共同财产，甚至个人财产的全部或大部分归夫妻一方所有，而对外欠债的一方则承担全部债务，导致债务人在表面上无财产可供执行，以达到逃避债务的目的。

结合本案争议焦点在双方签署的离婚协议中债务承担是否有效，能否对抗第三人？笔者认为，该条款无效，且不得对抗第三人。

首先，债务人通过假离婚分割财产的手段逃避债务、规避法律的行为，属《民法通则》第58条规定的无效民事行为的范畴。因为行为人的行为具有以下四个特征：1、意思表示不真实;2、恶意串通、损害国家、集体或者第三人的利益;3、违反法律和社会公共利益;4、以合法形式掩盖非法的目的。根据《民法通则》第58条第二款的规定，这种民事行为从开始起就没有法律约束力。并不需要等待当事人或其他利害关系人主张无效或者法院裁定无效，它是不附条件地当然无效。所以人民法院在审理或执行这类债务案件时，不应受这种虚假的民事行为(财产分割协议)束缚，更不能承认它的合法性和有效性，而应当依法将债务人原来的夫妻共同的财产清偿共同债务。即该债务由债务人与原配偶共同偿还。

其次，根据《婚姻法》第41条规定：“离婚时，原为夫妻共同生活所欠的债务，应当共同偿还。共同财产不足清偿的，或财产归各自所有的，由双方协议清偿;协议不成时，由人民法院判决。”由此可见，无论是通过行政或诉讼程序离婚的，应当先以共同财产清偿债务。如债务人在离婚时先分割共同财产，从形式上，对共同债务明确为一人偿还，而实际上义务人因无偿还能力，而使债务难以清偿，那么，这种民事行为既违背《婚姻法》第41条规定的债务清偿的程序和原则，又侵害了债权人合法民事权益。

因此，在实践中，如当事人通过行政程序已经“离婚”，并且分割了财产、未能偿还债务，或是确定债务由一人偿还，但义务人无偿还能力，后来债权人起诉要求清偿债务的，人民法院在审理案件的过程中，应将被告的原配偶列为本案的义务主体的当事人。如果当事人通过诉讼程序离婚，在离婚过程中分割财产，未清偿债务或隐瞒债务事实或明确债务由一方承担，但一方并无偿还能力，在债权人起诉后，人民法院应当用审判监督程序进行再审，重新对债务清偿作出判决。无论适用什么审判程序，都要明确双方对原共同债务承担。而，在执行当中，如果当事人通过诉讼的程序离婚，法律文书对债务清偿确有错误而难以执行的，应中止执行，提请审委会研究对原离婚案件进行再审，重新进行债务负担的确认。如当事人通过行政程序离婚，在债务人夫妻关系存续期间，人民法院就已对债务案件审结，应当认为法律文书中规定的债务是债务人夫妻的共同债务。若债务人无清偿能力或躲债在外时，可以将原为夫妻共有的现为一方占有、使用的财产进行查封，依法评估拍卖或变卖抵债。这样既保护了当事人的合法权益不受损失，又体现了司法的公正公平。

①  法律常识网，“假离婚”逃避债务问题探讨

② 110法律咨询网， 协议离婚债务清偿的效力，《律师世界》，1998年07刊 

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