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Mr. Lu Zhifei: graduated from Renmin University of China with a Bachelor's Degree in Law, worked in Qilu Petrochemical Company, assistant economist.
Specialties: civil legal affairs, labor disputes, personal injury compensation, economic contract disputes, corporate legal affairs, intellectual property rights, criminal legal affairs.
In recent years, the proportion of divorce cases in ordinary civil cases has gradually increased, especially the number of young couples divorced after the “80” continues to rise, and young people in the marriage of the biggest problem is still to solve the housing, housing prices continue to rise so that the “old” or “old man”. The continuous rise in housing prices has made the “old man” or to the bank mortgage loans to buy real estate become the main form of acquisition of real estate. In view of the mortgage has become a more common way to buy a house, how to determine the attribution and division in divorce cases, become a matter of concern to the people, because the law has not been clearly stipulated, the practice is not unified understanding, here only a rough discussion.
In our country, the bank to carry out the “personal housing commercial loan” business called “mortgage”, that is, the bank with its credit funds to the natural person who can not or do not want to pay a one-time payment for the purchase of housing for personal use issued by the self-operated loan mode. In order to prevent the risk of loans, the bank's main practice is to be used by the lender with the purchase of real estate and real estate land use rights as a loan collateral, at the same time to the housing seller or a professional security company to provide guarantee guarantee, the lender in the delivery of the down payment, the use of installments to pay for the loan, the purchase of the housing shortfall in the part of the loan provided by the bank. When the lender fails to repay the principal and interest at maturity, the lending bank has the right to realize the mortgage right by its collateral, or the guarantor assumes the joint and several liability for the repayment of the principal and interest. Due to the long term of the contract, the cycle of repayment of the loan from the lender to the bank can be up to 30 years, the time of the mortgage loan formalities can be before marriage, during marriage and after marriage, as well as the different sources of funds for the payment of the house payment, which involves the legal relationship between the parties, these factors make it a difficult point of property division in divorce cases.
Due to the lack of detailed provisions of the law, the courts around the trial process is not the same, sometimes only because of individual details lead to very different results, not conducive to the protection of the interests of the parties and maintain the dignity of the law, here, I believe that the ownership of the property right to determine the property is the key to the division of property.
Here are a few problems encountered in practice to analyze:
(A) agreed to the mortgage belongs to the house how to deal with:
The Marriage Law provides that spouses can agree on the common property and pre-marital property belonging to the couple, as long as the divorce can prove that there is such an agreement, it is relatively easy to deal with such mortgages, that is, directly according to the agreement of the two sides can be dealt with. If the agreement of such property to one spouse, and the other party to its property involved in the settlement of the loan, can not change the nature of the property owned by one party, divorce for the other has been settled part, should be returned; if the agreement to the joint husband and wife, even if one did not actually contribute or contribute very little, can not change the nature of the property for the couple's common property.
(B) there is no agreement on how to deal with the mortgage house belongs to
Such issues are more complex than the previous item. We obtained from the time of the real estate license and real estate contribution to the two aspects of the discussion.
From the house sale transaction, involving property right change and claim change two legal facts. In our country, the implementation of real estate registration system, without registration, does not produce the effect of changes in property rights, the certificate of ownership of the house is the real estate administrative department to the owner of the only legal certificate of property rights. On the mortgage house, pay down payment, bank loan to pay the remaining mortgage payment behavior is to perform the act of house sale contract, the buyer obtains ownership of the time is the certificate of property rights of the time filled in, so the divorce case, from the certificate of time easy to determine the ownership of the mortgage house:
1, the two sides in the pre-marriage jointly financed the purchase of housing and marriage in the name of a party or the joint name of the husband and wife to buy the house, to pay the mortgage, during the marriage to obtain the property rights of the house, are handled according to the common property of husband and wife.
2, before marriage, one of the husband and wife mortgage contribution to pay all the house, and before marriage to obtain the property right of the house, shall be a party to the marriage of personal property.
3, before marriage, one of the couple's personal funds to buy a house, mortgage payment of part of the house, before marriage to obtain the property rights of the house. Divorce, the property right of the house is still the original buyer all, if the couple with common property loans, just between the couple produced a debt relationship, does not change the ownership of the belonging, the total amount of loans paid jointly for the division of divorce, the party who owns the property right should be returned, after the divorce of the outstanding loan is still the property right of the individual debt.

Below, we will analyze whether the source of funds to pay for the purchase of housing will have an impact on the determination of the ownership of housing. In reality, although it is recognized that the registered owner of the real estate certificate shall be the owner of the house, but in some cases the source of payment of the purchase price will often make the house ownership disputes. Common situations are:
1, the actual contribution to the purchase of housing, but not registered as the owner of the house.
In the divorce, there is no apparent name of the party can also claim the right to the house, but should bear the burden of proof. Need to prove that before the marriage of the two sides are recognized for the common ownership of the house purchased, and with the other side of the joint contribution, its contribution to the house is not a gift or loan. This type of mortgage housing from the objective contribution and subjective is purchased for the common ownership of housing perspective, should also be recognized as community property, while the mortgage loan debt is recognized as a joint debt of husband and wife. Therefore, it is best to sign a written agreement before marriage, leaving evidence, otherwise it will be possible to be recognized by the court as the other party's premarital property.
2, a party to buy a house before marriage, paid part of the house, married to the couple's joint property to pay the mortgage payment, and after marriage to obtain ownership.
If the title certificate after marriage is registered as a joint ownership of the couple, it can be recognized as married to both sides of the ownership of the house has reached a consensus on the property rights of the two sides of a clear agreement to the joint ownership of the two sides of the court in the trial of the divorce case according to the couple's common property, the division of the house should be divided into the marriage of the individual property before the repayment of part of the repayment of part of the common property of the couple to deal with the house is not yet paid according to the couple to deal with the common debt.
If the title certificate is registered as the ownership of one party after marriage, the house is still his personal property. The mortgage loan is his or her personal debt. The participation of one of the spouses in settling the loan after marriage does not change the nature of the house as personal property. For the returned loan belongs to one of the spouses of the liquidation of the part, should be returned. The reason is that the right to property has no cause, the right to property change with the cause of the change of behavior is separate. Home buyers sign a contract to buy a house, pay down payment, bank mortgage to pay the remaining house (whether married before a party to personal property to pay mortgage payments or married couples to pay mortgage payments), is the cause of change in ownership of housing behavior, is not a right in rem, even if the house is delivered or move in, the buyer is only to obtain the right to use rather than the right in rem. As for married couples to repay the mortgage payment behavior, belonging to the common property of the couple to repay personal debt, the formation of a new debt relationship, does not affect the determination of the property right of the house.
Finally, the divorce has not yet obtained the ownership of housing property mortgage housing, according to “the supreme people's court marriage law judicial interpretation (2)” in article 21: “divorce on both sides of the not yet obtained the ownership or not yet obtained the full ownership of the housing disputes and consultation fails to people's court should not judge the ownership of housing belongs to, should be based on the actual situation of the judgment by the parties concerned Use. After the parties have acquired full ownership of a house as stipulated in the preceding paragraph, they may file a separate lawsuit with the people's court if there is a dispute.” The provisions of the divorce on the mortgage housing ownership disputes but can be negotiated, according to the agreement of the two sides to deal with housing ownership; if the negotiation fails, the court may decide to mortgage housing to a party to use, to be issued after the issuance of the certificate of title to the house, and then dealt with.