Divorce of husband and wife
When it is necessary to divide the sale price of the common property
Wife and Child Suddenly Submitted:
The balance has been used to repay debts
Is there still a share that originally belonged to the other party?
The following is what Wu Qiong, a lawyer at Shanghai Daopeng Law Firm, said
"Flash marriage" followed by "flash birth"
Mr. Zhao and his wife Ms. Feng are both "post-70s", the two met in college, although they were not classmates in the same class, but the two sides had a good impression of each other after they met, and established a relationship in 2003, and registered their marriage a year later. In 2005, with the birth of their daughter, the two also experienced "flash marriage" and "flash parenting" in just two years, completing the "upgrade" from being single to becoming parents.
However, because the two have been in love for a short time, they have children soon after marriage, and the contradictions between the two parties have gradually been revealed, and the feelings of husband and wife have long been exhausted in the daily contradictions. In 2020, seeing that his daughter's high school entrance examination was over, Mr. Zhao made a difficult decision: he took his daughter to start living in a rented house, and asked for a divorce with his wife in a "showdown".
However, Ms. Feng, who has always threatened with "divorce", is unusual. In the divorce proceedings, she told the judge that the relationship between the husband and wife had not completely broken down and did not agree to the divorce.
Mr. Zhao's divorce lawsuit went through the first lawsuit and the second lawsuit six months later, but based on the woman's resolute attitude, the court did not grant a divorce twice. In fact, Ms. Feng did not really want to save her marriage, and she repeatedly delayed the divorce, mainly because the property issue had not been dealt with, the key of which was a property shared by the husband and wife.
Selling a property to "pay off debts"
After Mr. Zhao and Ms. Feng registered their marriage in 2004, they jointly financed the purchase of a matrimonial house and registered their property rights in 2005. At that time, Ms. Feng demanded that only her name be on the property deed, and Mr. Zhao agreed.
After the conflict between the two intensified, Ms. Feng apparently realized that although the property was registered as her personal property, since the purchase and property registration were after the marriage, Mr. Zhao also contributed part of the house payment, which belonged to the husband and wife in accordance with the law.
As a result, Ms. Feng expressed her disagreement with the divorce in the divorce proceedings, and on the other hand, she proposed to Mr. Zhao that she needed to sell the property because she was unable to repay her debts abroad.
Faced with such arguments, Mr. Zhao reluctantly agreed to Ms. Feng's request. Of course, at this time, because the relationship and marriage between the two people had been ruined, Mr. Zhao, in order to protect the rights and interests of himself, especially his daughter, proposed that if the property worth about 7 million yuan at that time was sold, in addition to returning the bank loan he had approved before, Ms. Feng must give him 2 million yuan, and the two parties also signed an agreement for this. After the property was sold, Ms. Feng successively transferred 440,000 yuan to Mr. Zhao.
The divorce was granted
Since the previous two divorce proceedings were not supported by the court, Mr. Zhao sued again and asked us for help before the divorce.
After combing through the situation of Mr. Zhao and Ms. Feng, we analyzed:
First of all, Mr. Zhao had already taken his daughter to live in a rented house before he sued for divorce for the first time, and the couple was in a de facto state of continuous separation.
Secondly, Mr. Zhao has filed for divorce for the third time, and each time there is an interval of more than half a year.
At the same time, Mr. Zhao's request for the division of the proceeds from the sale of the property also had sufficient factual and legal basis.
Since Mr. Zhao and Ms. Feng's daughter was an adult during the third divorce lawsuit, there was no custody issue. However, we suggested to Mr. Zhao that we could sue Ms. Feng to pay the maintenance of the daughter that had occurred before, because we had sufficient evidence to prove that the daughter had been actually raised by Mr. Zhao all along, and Ms. Feng had not fulfilled her maintenance obligations as a mother for a long time.
In order to make this claim more easily supported by the court, we determined that the time period for claiming maintenance was the period when Mr. Zhao was renting a house with his daughter until the daughter reached the age of 18 at the time of the lawsuit, which is about three years in total.
In the lawsuit, Ms. Feng not only said that the relationship between the husband and wife had not broken down and tried to continue to delay, but also proposed that the remaining house money had been used to repay the debt, and it had been spent, so she did not agree to divide it.
To this end, she provided some evidence of debts involving outsiders, and according to our investigation, the two main creditors, one was Ms. Feng's brother and the other was a friend of Ms. Feng's father.
We certainly do not recognize these so-called debts and elaborate on our reasons.
After the trial, the court finally upheld Mr. Zhao's petition for divorce and granted the divorce.
For the claim for child support, the court determined that a total of 50,000 yuan should be paid back child support based on the evidence provided by both parties, the general standard of living in the city, the actual needs of the child and Ms. Feng's income.
As for the proceeds from the sale of the property, the court held that in addition to the repayment of the bank loan agreed by both parties, the balance should be distributed equally in principle, and in addition to the 440,000 yuan already paid to Mr. Zhao, Ms. Feng should also pay more than 190 yuan.
After the first-instance verdict, Ms. Feng appealed. After hearing the case, the court of second instance rendered a judgment rejecting the appeal and upholding the original judgment.
(The characters in the article are pseudonyms, and the plot has undergone some artistic treatment)
Lawyer's statement
The determination of whether the debts borrowed from the outside world during the existence of the marital relationship need to be repaid jointly by the husband and wife has long been a difficult issue in judicial practice.
After the implementation of the Civil Code, the principle of "joint debt and joint signature" of joint debts between husband and wife has been clarified for the first time at the legal level.
Article 1064 of the Civil Code stipulates that debts incurred by both husband and wife in the joint signature of the husband and wife or by one of the husband and wife in the subsequent recognition of the common intention, as well as debts incurred by one of the husband and wife in his or her own name for the daily needs of the family during the existence of the marital relationship, are joint debts of the husband and wife.
Debts incurred by one of the spouses in his or her own name during the existence of the marital relationship in excess of the daily needs of the family are not joint debts of the husband and wife, unless the creditor can prove that the debts were used for the common life of the husband and wife, joint production and business, or based on the common intention of the husband and wife.
On the one hand, the above-mentioned provisions clarify the principle of determining the joint debts of husband and wife, and on the other hand, they also clarify the corresponding burden of proof in judicial practice, giving creditors a relatively heavy burden of proof.
In other words, if the creditor wants the husband and wife to jointly bear the debt, they need to prove any of the following:
The first is that the debt is "jointly signed by both husband and wife or recognized by one of the husband and wife after the fact".
The second is that the debt is "borne in the name of the individual for the daily needs of the family".
The third is that "the debt is used for the husband and wife to live together, jointly produce and operate, or based on the common intention of the husband and wife".
If the creditor is unable to prove any of the above, then the relevant debt cannot be recognized as a joint debt of the husband and wife.
Since the second and third points above are difficult to prove, in practice, if the creditor wants to ensure that the debt can be jointly borne by the husband and wife, it is best to achieve "joint debt co-signing", that is, the loan agreement and debt certificate require both husband and wife to jointly sign and confirm, otherwise it is likely to be regarded as the debt of only one of the husband and wife.
Author | Wu Qiong (Shanghai Daopeng Law Firm)