Recommended favorites! How is the real estate divided when one party pays the down payment before marriage and the two parties jointly repay the loan after marriage?

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Article 78 of the Judicial Interpretation of the Civil Code of the Supreme People's Court on Marriage and Family (I) stipulates that if one of the spouses signs a contract for the sale and purchase of real estate before marriage, pays the down payment with personal property and takes out a loan in the bank, and repays the loan with the joint property of the husband and wife after marriage, and the real estate is registered in the name of the party paying the down payment, the real estate shall be handled by agreement between the two parties at the time of divorce.

Where an agreement cannot be reached in accordance with the provisions of the preceding paragraph, the people's court may rule that the immovable property belongs to the party to registration, and the loan that has not yet been returned is the personal debt of the party registered in the immovable property. In the event of divorce, the amount paid by the two parties for joint repayment of the loan and the corresponding appreciation of the property shall be compensated by the party registering the immovable property to the other party in accordance with the principles stipulated in the first paragraph of Article 1087 of the Civil Code.

In real life, there are many husband and wife who sign a house purchase contract before marriage, pay a down payment and take out a mortgage loan in the bank, and after marriage, the two parties jointly repay the mortgage. At this time, the value input of the other party is included in the price of the house, and it is determined that there may be something wrong with the personal property of one party before marriage. There is also no basis for the conclusion of a contract, the payment of a down payment, or the registration of immovable property completed by or in the name of one party, and the recognition of the joint property of the spouses is also lacking in the basis. It can be said that such real estate is actually a mixture of premarital personal property and postmarital common property. When the people's court decides to divide such real estate in divorce cases, it must not only protect the property rights and interests of individuals before marriage, but also fairly divide the joint property rights and interests of the husband and wife formed by the joint repayment of loans after marriage in accordance with the principle of the Civil Code on taking care of the interests of children, women and no-fault parties, and at the same time cannot harm the legitimate interests of the bank as a creditor, and must be carefully grasped.

When handling divorced housing disputes, the people's courts need to pay attention to the fact that the application of the provisions of this article must meet the following conditions at the same time:

1. The contract for the sale and purchase of immovable property is signed before marriage

First of all, it should be noted that there is an implicit condition in this article, that is, the husband and wife implement the legal common property system. In the case of the agreed property system, the property of the two parties is separated, and there is basically no question of how to determine the ownership of the loan house and how to compensate according to the provisions of this article. Article 1062 of the Civil Code stipulates: "The following property acquired by husband and wife during the existence of the marital relationship shall be the common property of the husband and wife and shall be jointly owned by the husband and wife: (1) wages, bonuses and remuneration for labor services; (2) income from production, operation and investment; (3) income from intellectual property rights; (4) inheritance or donation of property, except as provided for in paragraph 3 of Article 1063 of this Law; and (5) other property that shall be jointly owned." Husband and wife have equal rights to dispose of common property. "The conclusion of a contract for the sale and purchase of a house after marriage means that the expression of intent to purchase a house occurs during the existence of the marital relationship in which the property is jointly owned by both husband and wife, even if the house is registered in the name of one of the parties, it is not in the case of the application of this article."

2. The down payment shall be made by the Party entering into the contract in the form of personal property

As the first payment when buying a house, the minimum proportion is about 20% according to the relevant regulations, and in today's high house prices, the down payment is also a big money investment. If one party pays a down payment with personal property before marriage, the corresponding value part of the house inevitably bears the nature of premarital personal property. From a realistic point of view, house prices have continued to show an upward trend over the years, and the amount of the down payment in the corresponding part of the value of the house is also slowly expanding. The people's courts must protect such rights and interests that are of a personal property nature. If the contract for the sale and purchase of a house is signed before marriage, but the down payment is made by both the man and the woman, it is not in accordance with the conditions set forth in this article for "making a down payment on personal property and taking out a loan in the bank". How to determine this situation, it has been suggested that the party to the registration of immovable property may, with reference to paragraph 2 of this article, compensate the other party for the payment of the other party and the corresponding appreciation of the property.

3. The repayment of loans after marriage is the joint property of the husband and wife

Personal property before marriage is not naturally transformed into the joint property of husband and wife by the establishment of the marital relationship. Even under the statutory system of joint marital property, it is not excluded that one or both spouses retain a part of their personal property or acquire personal property during the existence of the conjugal relationship. If part or all of the repayment of the housing loan is personal property, the purchase price cannot be considered to include the joint input of the husband and wife, and one or all of the house is excluded from having the nature of the joint property of the husband and wife. Of course, in trial practice, whether the loan repayment is personal property needs to be proved by sufficient evidence to be determined. Generally speaking, whether to determine whether it is satisfied with "joint repayment of loans with the joint property of husband and wife after marriage" should be grasped from two aspects: on the one hand, from the perspective of the time of repayment of bank loans, as long as the time of repayment is during the existence of the marital relationship, it can generally be determined that both parties use the joint property of husband and wife to repay the loan; on the other hand, whether the husband and wife have agreed to implement a separate property system or have a special agreement on the repayment of the loan of the house involved in the case. If the parties approve or one of the parties can produce evidence to prove that the husband and wife implement the agreed property system or have a special agreement on the repayment of the house involved in the case, or if the use of the loan repayment is indeed personal property, the application of the provisions of this article is excluded.

4. The immovable property is registered in the name of the party paying the down payment

If the purchase of a house satisfies the first three conditions, and one party pays a down payment and takes out a loan to buy a house for marriage before marriage, and uses the joint property of the husband and wife to repay the loan after marriage, but the real estate is registered in the name of both parties or one party gives the house to the other party, it does not fall into the circumstances provided for in this article and this article cannot be applied. The fact that immovable property is registered before or after marriage does not affect the application of this article. The contract for the sale and purchase of a house is signed before marriage, which means that the agreement to change the right to immovable property occurred before the marriage and has nothing to do with the other party. There is a part of the view that if the ownership of immovable property is acquired after marriage, regardless of which party is registered, it should be regarded as the joint property of the husband and wife, and in the event of divorce, it should be divided as the joint property of the husband and wife, that is, the "transformation theory" view. We believe that this view is inappropriate, the husband and wife is not a simple cooperative relationship or a simple economic relationship, the civil code marriage and family part of the establishment of the marital property system, reflects the values generally recognized in Chinese society, not only continues the tradition of family property sharing, but also reflects the family ethics of husband and wife sharing weal and woe, joint investment and shared risks. The Marriage and Family Law not only maintains equal and harmonious family relations, but is also closely related to the raising of children and the support of the elderly. The ownership of immovable property does not change depending on the time of registration of the immovable property or the participation of the other party in the repayment of the loan.

Paragraph 2 of this article states that the people's court may rule that the immovable property belongs to the party to registration, and that the loan that has not yet been returned is the personal debt of the party registered in the immovable property. It should be noted here that what is provided for in this article is one of the ways in which one party signs a contract before marriage and pays a down payment on personal property, and after marriage repays the loan with the joint property of the husband and wife and registers it in the name of one party, when the people's court handles it in practice, it is not necessary to adopt the method provided for in this article to award the house to the registered party, but also to judge according to the actual situation of the case. In exceptional circumstances, the possibility of awarding such a house to the non-registered party and repaying the remaining loan is not excluded.

As for the question of how to compensate the party who has not acquired the property rights of the house, in addition to the value of the part of the original purchase price of the house, the party who has acquired the property right should also compensate the other party for the appreciation of the house, and cannot only pay half of the amount paid by both parties during the existence of the husband and wife relationship. First of all, the value of the house must be determined, and if the husband and wife can agree on the value of the house, the amount of compensation is calculated based on the amount recognized by both parties. If the parties cannot reach an agreement, it is necessary to entrust a qualified asset appraisal agency to conduct an appraisal to determine the value of the house involved in the case. The calculation of "the amount paid by the two parties after marriage and the corresponding part of the appreciation of the property" stipulated in this article can be expressed by the formula as follows: the amount of compensation to be compensated = (the amount of joint repayment ÷ the total purchase price) × the present value of the property ×50%. For example, suppose that the unit price of the house purchased by the premarital loan buyer is 15,000 yuan per square meter, and the area is 80 square meters. The down payment is 360,000 yuan, the mortgage loan is 840,000 yuan, the loan term is 20 years (240 months), and the total interest is 603452.87 yuan. The total repayment amount is 1443452.87 yuan. If the equal repayment method is adopted, the average monthly repayment is 6014.39 yuan. After the parties jointly repaid the loan for 3 years (36 months) after marriage, the divorce was filed, and the house was assessed at the time of divorce, worth 4 million yuan. The calculation shows that the buyer paid a total of 1803452.87 yuan (1.2 million yuan + 603452.87 yuan) for the purchase of the house. Among them, the down payment accounted for 360,000 yuan in the house price (house price payment + interest) ÷ 1803452.87 yuan ×100% ≈19.96%, and the husband and wife jointly repaid 216518.04 yuan (6014.39 yuan ×36), accounting for 12% of the house price (216518.04 yuan÷1803452.87 yuan ×100%). If other factors are not taken into account, the house can be ordered to be owned by the party who bought the house before marriage, and the other party can be compensated by 240,000 yuan (4 million yuan× 12% ×50%). The remaining loan of 1226934.83 yuan (1443452.87 yuan - 216518.04 yuan) is still repaid by the buyer.

This provision does not preclude the granting of additional compensation to the other party in exceptional circumstances or the award of the house to a party that is not the payer of the down payment. If the children are two years old at the time of divorce and need to live with the woman, and the woman has another house but is in financial difficulty, the first consideration is given to the woman when dividing the above-mentioned house, for the property value corresponding to the joint repayment of the loan by the husband and wife, the division is based on the principle of taking care of the interests of the child, the woman and the no-fault party. If, in the light of the facts of the case, it is held that giving the entire part of the part to the woman is sufficient to embody the above principles, and it does not violate the provisions of this article. In the event of divorce, if one party does not have a place to live in the non-down payment and the other party has the capacity to afford it, the people's court may also, in accordance with the provisions of articles 366 and 1090 of the Civil Code, order one party to give assistance, establish the right of residence on the house, and guarantee the right to subsistence of the party without a residence.

Another issue that cannot be ignored is that the people's court must fully understand the repayment of the loan when hearing such cases, and the mortgage loan is to set the purchased house as collateral to the bank as a guarantee for the lender to repay the loan. In general, the obligation to repay the loan and the ownership of the home should be attributed to the same party. Otherwise, the asymmetry of rights and obligations will most likely lead to the lender refusing to repay, and the house may eventually be realized by the bank through litigation and enforcement procedures, which will harm the interests of the party who obtains the property rights of the house.

Issues that should be paid attention to in trial practice

1. In some divorce cases where both parties are remarried, for one party to sign a pre-sale housing contract or register to participate in the housing reform through the unit during the existence of the previous marriage relationship, the purchase of a house to change the house, when buying a house, enjoy the length of service between the party and the previous spouse, but until the death of the original spouse, the party remarried before the formal signing of the house purchase contract, the purchase of the house, because the house purchased is a house change, the vast majority of the purchase price for this party and the original spouse of the length of service preferential, therefore, It is not appropriate to apply this article to determine the ownership of the house.

2. When deciding to return the judgment of the house that complies with the provisions of this article to the buyer of the non-marital mortgage loan, it is necessary to do the following work: First, it is necessary to judge that the party that has acquired the ownership of the house shall pay compensation to the other party for the down payment of the house paid by the buyer and the payment for the joint repayment of the loan by the husband and wife and the appreciation part of the corresponding property; second, properly handle the bank loan that has not been returned, and generally should judge the party who has obtained the ownership of the house to bear the obligation to continue to repay the loan.

3. Before making a judgment, the people's court shall grasp the following basic information: (1) the price of the house involved in the case; (2) the down payment and its proportion in the total purchase price; (3) the amount of the mortgage loan and the amount of its interest; (4) the accumulated amount (including interest) of the parties' repayment of the joint property of the husband and wife and its proportion to the total house payment and interest; and (5) the amount of the loan and interest that has not yet been returned. On this basis, the ownership of the property can be determined, and then the amount of compensation that the party acquiring the property rights needs to pay to the other party. In dividing up the joint property of husband and wife, the provisions of article 1087 of the Civil Code must still be implemented to take care of the interests of children, women and no-fault parties.

4. If the marital relationship between the two parties has existed for a long time, and the proportion of the joint repayment of the loan by the husband and wife in the housing payment is much higher than the proportion of the down payment paid by the premarital buyer in the housing payment, and the non-buyer has the ability to pay the outstanding loan, the people's court may, according to the actual situation of the case, rule that the house belongs to the spouse of the pre-marriage buyer, so that he or she will pay corresponding compensation to the other party and bear the obligation to continue to repay.

5. If one of the parties to the house purchased before marriage changes its economic situation for some reason and does not have the ability to continue to repay the bank loan at the time of divorce, and the other party has this ability, in order to avoid the exercise of mortgage rights by the bank in the house involved in the case, the other party requests to obtain ownership and undertake corresponding obligations in accordance with the provisions of this article, the people's court shall support it.

6. If the parties have not registered their marriage, but are only cohabiting, the provisions of this Article shall not apply even if the circumstances of the purchase of the house are similar.

Source: Judicial Interpretation of the Civil Code of the Supreme People's Court on Marriage and Family (1) Understanding and Application (Excerpt), Shandong Supreme Court

From: The Great Law

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