The 32nd issue of the Team Monthly ∣ parents who buy a house after marriage should generally not be regarded as a loan

Author: Lawyer Liang Bing

In judicial practice, there are cases in which the parents of one of the parents after marriage have been identified as loans or gifts, and there are cases in the Supreme People's Court that are identified as gifts, and sometimes cases that are identified as loans, resulting in different judgments in such cases.

01

Case

(1) Cases in which the man unilaterally approves the loan and the judgment is that the man alone bears the repayment obligation

【Facts】

The man and woman buy the property located in the local area after marriage, the current price of the property is 1 million yuan at the time of purchase, the man pays the first payment of 280,000 yuan two days ago, his father transferred 310,000 yuan to the man's account, the property was registered in the name of both men and women; after the purchase of the parking space, the parking space price was about 160,000, and his father transferred 145,000 yuan to the man's account two days before the purchase of the parking space, and the parking space was registered in the man's name.

The man and the woman were later divorced through court mediation, and the property and parking space belonged to the woman.

Later, the father of the man filed a lawsuit, demanding that the two parties jointly repay the principal of the loan for a total of 470,000 yuan.

【The court held】

1. The principle of "who advocates, who proves" should be followed as to whether the loan relationship is established, and the father of the man claims that the case is a loan relationship, and he should bear the corresponding burden of proof. The establishment of a private lending relationship has two elements, one is the actual delivery of the money, and the other is that there is a loan agreement between the two parties. In this case, the father of the man only submitted the transfer voucher, but did not submit other evidence such as IOUs and IOUs to prove that the parties had reached a loan agreement on the money involved in the case, and he should bear the adverse consequences of failing to adduce evidence;

2. When the nature of the parents' contribution is unclear, it is more in line with the above principle of assigning the burden of proof to the parents of the fact that the capital contribution is a loan than to assigning the burden of proof to the child. On the one hand, the nature of the gift's monolithic behavior determines that the child only needs to passively accept the gifted property and does not need to make other positive acts. On the other hand, the kinship between parents and children determines that parents are usually more likely to fund a house as a gift than to borrow money. Specific to this case, the man did not issue an IOU to the father, and the father did not clearly indicate that it was a gift when transferring the money involved in the case, so when the authenticity of the proven fact that the money involved in the case was a loan or a gift was unclear, the person who had the burden of proof according to law, that is, the father himself, should bear the adverse consequences.

3. Although the man acknowledges that the money involved in the case is a loan, based on the paternity relationship between the two parties, and the man's self-admission occurred in the specific period of his divorce from the woman, the legal consequences of the man's self-admission cannot directly affect the woman. Therefore, the reason for the judgment that the woman bears 50% of the repayment responsibility is insufficient, and this court does not support it.

4. The first instance judgment of the man's repayment obligation and interest on 50% of the money involved in the case was upheld by this court because the man admitted that the money involved in the case was a loan, and he did not appeal against it, which was deemed to be a judgment.

(2) Cases where husband and wife jointly issue AN IOU to the mother-in-law, but the mother-in-law still loses the case

【Facts】

On March 16, 2019, the husband and wife issued an IOU to the mother-in-law, stating that they had borrowed 1.3 million yuan from the mother-in-law.

The mother-in-law gave evidence to prove that the son's funds were deposited through cash deposits, Alipay and WeChat transfers totaling 950,000 yuan before the loan was issued, and the son's funds after the IOU were issued totaled 402,349 yuan.

In the same month, in order to repay the real estate loan, the husband and wife borrowed 1.2 million yuan from their mother-in-law friend Zhou and jointly issued an IOU of 1.2 million yuan to Zhou; at the trial, the woman argued that the 1.3 million yuan issued to the mother-in-law and the 1.2 million yuan issued to Zhou were the same loan.

【The court held】

The focus of the dispute in this case was whether the loan facts claimed by the mother-in-law actually occurred. The mother-in-law sued on the basis of an IOU signed by both husband and wife, but the woman argued that the IOU was not written by the mother-in-law as claimed by the mother-in-law between October 2017 and July 2019, and the court considered the amount of the loan, the delivery of the money, the use of the money, the changes in the property of the parties, the identity relationship between the parties and other factors.

1. First of all, the IOU states that "I borrowed 1.3 million yuan from the mother-in-law today", but as of the date of the debit note, the amount of the loan delivered as evidenced by the mother-in-law was only 950,000 yuan, which was quite different from the amount of the loan contained in the IOU.

2, from the point of view of payment delivery, the mother-in-law advocates that the loan is successively delivered to the man through cash deposits or Alipay and WeChat transfers, of which the amount of cash deposits is as high as 1.12 million yuan, and the large amount of deposits is operated on the ATM machine, and only the business voucher cannot reflect the identity of the specific operator, nor is it enough to prove the actual source of funds.

3. From the perspective of the purpose of the loan, the mother-in-law advocates that the loan is to help the man repay the credit card arrears, combined with the professional nature, income situation, living conditions and other factors of the man and the woman, the amount of expenses stated by the man in the two years has exceeded the daily life needs of ordinary families, which is unreasonable.

4. From the perspective of the time period of the formation of the IOU, in March 2019, the two parties were raising funds to return the bank's loan of 1.4 million yuan, and the two parties signed the IOU of this case on March 16, 2019, and jointly issued an IOU to Zhou, an outsider in the case, on the 24th of the same month, confirming that they had borrowed 1.2 million yuan from him. The two IOUs were formed at similar times and involved in similar amounts. The woman argued that the IOU in this case was pre-written to raise funds for repayment, and was later replaced by an IOU issued to Zhou, which has a high probability.

5. Judging from the actual national conditions of the mainland, there is a common phenomenon in society that parents still give financial and living support after their children have established a family, and even if parents do pay money to their children, they cannot directly determine the establishment of a loan relationship between the two parties.

6. The man's approval is a punishment of his own rights.

Therefore, the judgment was that the man should bear the repayment obligation of 1.3 million yuan solely.

02

The spirit of the Civil Code is biased towards recognition as a gift

Article 29 of the Interpretation (1) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's Republic of China clearly stipulates that if after the parties get married, the parents contribute to the purchase of a house for both parties, and there is no agreement or the agreement is unclear, it shall be regarded as a gift to both husband and wife in accordance with the principles provided for in item 4 of the first paragraph of article 1062 of the Civil Code, and the weight shall be light, and the contribution to the vehicle shall also be regarded as a gift to both parties.

(1) Article 29

After the parties get married, if the parents contribute funds for the purchase of a house for both parties, it shall be handled in accordance with the agreement; if there is no agreement or the agreement is unclear, it shall be handled in accordance with the principles provided for in item 4 of the first paragraph of Article 1062 of the Civil Code.

(b) the understanding of the provision

1. Compared with Article 22 of the Judicial Interpretation (II) of the Marriage Law, there is a change and there is a preference for gifts

The original provisions: After the parties get married, if the parents contribute to the purchase of a house for both parties, the contribution shall be deemed to be a gift to both husband and wife, except for the parents who expressly indicated that the donor was made; the Civil Code stipulates that it shall be handled in accordance with the agreement, and if there is no agreement or the agreement is unclear, it shall be regarded as a gift.

2. The agreement is consistent with the joint property system of the husband and wife after marriage

According to the provisions of the Civil Code on the marital property system, the joint property system is a statutory property system, that is, during the existence of the marital relationship, unless the unique property of the individual and the husband and wife have otherwise agreed, the property acquired by both husband and wife or one of them is jointly owned by the husband and wife. The property acquired by one of them includes gifted and inherited property.

3. The autonomy of both parties shall be respected. In principle, the determination of parental contributions should be based on the clear expression of parents. If the parents and children agree that it is a gift or if the parents explicitly indicate that it is a gift, it is a gift relationship. It should be noted here that the true intention of the parents to contribute the gift should generally occur at the time of the contribution or after the contribution. Parents who later claim a loan relationship are generally not supported. This is to prevent the parents from claiming the return of the capital contribution on the grounds of the so-called loan relationship in violation of the principle of good faith when there is a change in the marriage of the child or the deterioration of the relationship between the parents and the children.

4. The principle of "who advocates and who proves" should be strictly followed as to whether the lending relationship is established.

(1) In the lending relationship, it is generally based on words, and the form of an IOU issued by the borrower is used as the basis for the lender's request for return. Therefore, under normal circumstances, the lender will keep the IOU properly. In the gift relationship, the donor gives up the ownership of the gift through the donation, and generally there is no problem of the return of the donated property afterwards, so there is no need for the donor to retain relevant evidence to prove the existence of the gift relationship. Therefore, parents advocating a lending relationship should be closer to and more likely to retain evidence than children advocating a gift relationship.

(2) The kinship between parents and children determines that parents are more likely to contribute as gifts than to borrow money. Judging from China's actual national conditions, children who have just joined the work lack the financial ability and cannot afford to buy a house alone. Parents, on the other hand, often voluntarily fund the purchase of houses for their children based on their affection for their children. The vast majority of parents contribute money to solve or improve their children's living conditions, hoping to make their children's lives happier, not to return the money later. Therefore, the probability of parents lending money to their children to buy a house is much lower than the parents will donate money to their children to buy a house. Furthermore, the burden of proof borne by parents who advocate the existence of a low-probability event such as a lending relationship is also consistent with the average person's perception of daily life experience. In summary, in the event that one of the parents is unable to provide sufficient evidence for the loan to make a contribution, the contribution should generally be considered a gift to the child.

03

other

(1) The time point at which the parents sue is generally at the time of divorce proceedings between the parties or after the divorce

At this time, because the relationship between the husband and wife has been completely broken, the interests of the parents and the spouse are closer to each other than those of the spouse, so the IOU or the statement of approval issued by one party at this time should not be recognized because of its interests.

(2) Violating the principle of fairness

It is unfair to the spouse if an IOU or statement issued unilaterally by one of the spouses awards the spouse a high amount of interest.

Therefore, if the parents pay for the purchase of a house after marriage, if they want to be recognized as a loan, it is best for both husband and wife to issue an IOU, remit money through bank transfer, and do not take the form of cash, otherwise the author personally believes that it is generally recognized as a gift at this stage.

About Lawyer Liang Bing

He is a director of the Marriage and Family Law Research Society of the Guangdong Law Society

Member of the Marriage and Family Law Professional Committee of the Provincial Lawyers Association

Member of the Family Wealth Law Committee of the Municipal Lawyers Association

Internationally Registered Senior Private Wealth Manager

The first batch of estate administrator lawyers of the Shenzhen Bar Association

Mr. Liang Bing, Master of International Law of Wuhan University, Lawyer of Guangdong Lianyue (Shenzhen) Law Firm, Lawyer of Family Wealth Inheritance and Corporate Equity Planning, Internationally Registered Senior Private Wealth Manager, And Lawyer of the First Batch of Estate Administrators of Shenzhen Lawyers Association.

Adhering to the style of handling cases with temperature, depth and attitude, he is particularly good at handling family disputes such as divorce and inheritance in large, complex, foreign-related and diverse forms of property, and is good at designing family wealth risk prevention plans and wealth inheritance plans according to the specific conditions of large families and comprehensively using relevant laws and regulations such as company law, marriage law, inheritance law, etc., and formulating marital property agreements and wills for high-net-worth individuals.

In addition to handling cases, he has written a large number of professional articles and published them in major legal media.