Lawyer Lu Zhifei: Graduated from Renmin University of China with a bachelor's degree in law. He once worked for Qilu Petrochemical Company as an assistant economist.
Business expertise: civil legal affairs, labor disputes, compensation for personal damages, economic contract disputes, company legal affairs, intellectual property rights, criminal legal affairs.
In recent years, the proportion of divorce cases in ordinary civil cases has gradually increased. In particular, the number of divorced couples after the "80s" has continued to rise, and the biggest problem faced by young people when they get married is still solving housing and housing prices continue to rise. Make "grabbing the old" or buying a house from a bank mortgage loan as the main form of obtaining real estate. In view of the fact that mortgage purchases have become a relatively common way of buying houses, how to determine their ownership and division in divorce cases has become an issue of concern to the common people. Since the law is not clearly stipulated and there is no unified understanding in practice, only a rough discussion will be given here. .
In our country, the "personal housing commercial loan" business carried out by banks is called "mortgage", which means that banks use their credit funds to issue self-employed loans to natural persons who are unable or unwilling to pay for the house in a lump sum. . In order to prevent loan risks, the current bank’s main approach is that the lender uses the purchased real estate and the right to use the real estate land as loan collateral, and at the same time, the house seller or professional guarantee company provides guarantee guarantee. After the lender delivers the down payment, Instalment loans are used, and the bank provides loans for the insufficient part of the purchase of houses. When the lender is unable to repay the principal and interest due, the lending bank has the right to realize the mortgage right with its collateral, or the guarantor shall bear the joint liability of repaying the principal and interest. Due to the long contract period, the loan repayment cycle of the lender to the bank can be as long as 30 years. The time for the mortgage loan procedure can be before marriage, during the marriage, after the marriage, and the source of funds for the payment of the house varies. The legal relationship between the parties, these factors make it a difficult point in the division of property in divorce cases.
Since there are no detailed provisions of the law, the courts in different regions deal with differently in the trial process. Sometimes the results vary greatly due to individual details, which is not conducive to protecting the interests of the parties and maintaining the dignity of the law. Here, I believe that the ownership of housing property rights is to be determined. The key to property division.
The following is a brief analysis of several problems encountered in practice:
(1) It has been agreed on how to deal with the housing of the mortgage:
The "Marriage Law" stipulates that both spouses can agree on the ownership of the joint property and pre-marital property of the couple. As long as evidence can be provided to prove the agreement at the time of divorce, it is relatively easy to deal with this type of mortgage property, that is, it can be handled directly according to the agreement between the two parties. If it is agreed that the property belongs to one spouse and the other party participates in the repayment of the loan with its property, the nature of the property being owned by one party cannot be changed, and the other part that has already been paid should be returned at the time of divorce; if agreed It belongs to the husband and wife, even if one has no actual capital contribution or very little capital contribution, the nature of the house as the joint property of the husband and wife cannot be changed.
(2) How to deal with mortgage houses that have no agreed ownership
This kind of problem is much more complicated than the previous item. We discuss separately from the two aspects of the acquisition time of the real estate certificate and the real estate investment.
From the housing transaction, there are two legal facts involved in the change of property rights and the change of creditor's rights. In our country, a real estate registration system is implemented. Without registration, there is no effect of property rights changes. The house ownership certificate is the only legal property right certificate issued to the owner by the real estate administration department. For mortgage houses, the act of paying the first payment and paying the remaining mortgage payment with bank loans is the act of fulfilling the house sale contract. The time when the buyer obtains the ownership is the time filled in the house title certificate. Therefore, in divorce cases, from the certificate It is easy to determine the ownership of the mortgage house in time:
1. The houses purchased by both parties before marriage and the houses purchased in the name of one party or in the joint name of husband and wife after marriage are paid by mortgage. If the property right of the house is acquired during the marriage relationship, it shall be treated as the joint property of the husband and wife.
2. Before the marriage, if the spouse has paid the entire house price by mortgage and obtained the property right before the marriage, it shall be the pre-marital personal property of one party.
3. Before the marriage, one of the spouses personally invested in the purchase of a house, part of the mortgage was paid for the house, and the property right of the house was obtained before the marriage. At the time of divorce, the property rights of the house are still owned by the original purchaser. If the joint property of the husband and wife is used to repay the loan, only a creditor-debt relationship arises between the husband and the wife. The ownership of the property is not changed. The total amount of loans paid together is divided at the time of divorce, and the party who owns the property rights Should be returned, the outstanding loan after the divorce is still the property owner's personal debt.
Next, let’s analyze whether the source of funds to pay for the purchase of a house will affect the determination of the ownership of the house. In reality, although it is recognized that the owner of the real estate certificate registration should be the owner of the house, in some cases the source of the payment for the purchase of the house will often cause disputes on the ownership of the house. Common situations are:
1. Actually invested in the purchase of a house, but did not register as the owner of the house.
At the time of divorce, the unnamed party can also claim rights to the house, but shall bear the burden of proof. Evidence is required to prove that both parties agree that the purchased house is jointly owned and jointly funded by the other party before the marriage. Their contribution to the house is not a gift or loan. This type of mortgage house is considered from the perspective of objective capital contribution and subjectively that the purchased house is jointly owned. It should also be regarded as the joint property of the husband and wife, and the mortgage loan debt shall be regarded as the joint debt of the husband and wife. Therefore, it is best for both parties to sign a written agreement before marriage and leave evidence, otherwise the court may consider it as the other party’s pre-marital property.
2. One party purchases a house before marriage, pays part of the house price, pays the mortgage with the husband and wife's joint property after marriage, and obtains ownership after marriage.
If the property right certificate is registered as jointly owned by the husband and wife after the marriage, it can be deemed that the two parties have reached a consensus on the ownership of the house after the marriage and clearly agreed that the property rights shall be shared by both parties. The court shall treat the divorce case as the joint property of the husband and wife. The payment for the house shall be divided into the repayment of personal property before marriage and the repayment of the joint property of the spouse. The unpaid house payment shall be dealt with as the joint debt of the spouse.
If the property right certificate is registered as owned by one party after the marriage, the house is still personal property. Mortgage loans are personal debts. The participation of one spouse in repaying the loan after marriage does not change the nature of the house as personal property. The part of the returned loan that belongs to the spouse's repayment shall be returned. The reason is that the property right has no cause, and the change of the property right is separate from the cause of the change. The purchaser signs the purchase contract, pays the first payment, and pays the remaining mortgage payment by the bank mortgage (whether the mortgage payment is paid by the personal property of the one party before the marriage or the mortgage payment by the joint property of the husband and wife after the marriage), all are the reasons for the change in the ownership of the house. , Is not the property right, even if the house is delivered or moved in, the purchaser only obtains the right of use instead of the property right. As for the behavior of husband and wife to repay the mortgage together after marriage, it belongs to the situation of using the joint property of the husband and wife to repay personal debts, forming a new relationship between creditor's rights and debts, and does not affect the determination of housing property rights.
Finally, for the mortgaged houses that have not yet obtained the ownership of the property at the time of divorce, according to Article 21 of the "Judicial Interpretation of the Supreme People's Court Marriage Law (2)": "At the time of divorce, both parties have disputes about the houses that have not yet obtained ownership or have not yet obtained full ownership Moreover, the people’s court that fails to reach a negotiation should not decide the ownership of the house, and it should make a decision based on the actual situation. After the parties have obtained the full ownership of the house specified in the preceding paragraph, the dispute can be separately filed in the people’s court." The stipulation, divorce When the ownership of the mortgaged house is disputed but can be negotiated, the ownership of the house can be dealt with according to the agreement of both parties; if the negotiation fails, the court may rule that the mortgaged house belongs to one party and deal with it after the house ownership certificate is issued.
