Article 1064
Debts incurred by both husband and wife as a joint signature or a subsequent recognition by one of the husband and wife, as well as debts incurred by one of the husband and wife in their 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.
I. Purpose of this Article
This article deals with joint debts of husband and wife.
II. Evolution of the Provisions
Article 24 of the original Marriage Law of 1950 stipulates that: "At the time of divorce, the debts originally incurred by the husband and wife while living together shall be repaid with the property acquired during the joint life; Debts incurred by a man and a woman alone shall be repaid by the man himself. This article defines the criteria for determining the joint debts of husband and wife, establishes the principle of repayment of joint debts of husband and wife and the personal debts of one party, and establishes a special rule that the man shall be responsible for paying off the joint debts of the husband and wife, taking into account the social reality that the economic status of women is weaker than that of men at that time.
Article 32 of the original Marriage Law of 1980 stipulates: "At the time of divorce, the debts incurred by the husband and wife in the common life shall be repaid with joint property. If the property is insufficient to be repaid, the two parties shall agree to settle the debt, and if the agreement is not reached, the people's court shall make a judgment. Debts incurred by a man and a woman alone shall be repaid by the man himself. This provision is the same as the original Marriage Law of 1950, which still takes "the burden borne by the husband and wife living together" as the only criterion, but when the joint property of the husband and wife is insufficient to pay off the joint debts, in order to reflect the equal protection of both husband and wife, the original Marriage Law of 1980 changed "to be repaid by the husband" to "to be repaid by mutual agreement; if the agreement is not reached, the people's court shall make a judgment".
Article 43 of the original Opinions on the General Principles of the Civil Law stipulates that: "During the existence of the relationship between husband and wife, if one party engages in self-employment or contracted business, his income shall be the joint property of the husband and wife, and the debts shall also be paid off with the joint property of the husband and wife." "Based on the statutory community of income after marriage, it is clarified that the joint property of the husband and wife is the property of the liability for the debt. Paragraph 1 of Article 17 of the original Opinions on the Division of Property in Divorce Cases stipulates that: "Debts incurred by husband and wife for the purpose of living together or for the performance of maintenance and maintenance obligations shall be recognized as joint debts of the husband and wife, and shall be paid off with the joint property of the husband and wife at the time of divorce." It further clarifies the criteria for determining the joint debts of husband and wife. At the same time, paragraph 2 of this article also excludes several types of personal debts of one of the spouses: first, debts that the husband and wife agree to bear individually, except for the purpose of escaping debts. The second is that one party, without the consent of the other party, finances the debts of relatives and friends who have no obligation to support him. Third, one party has raised funds to engage in business activities on its own without the consent of the other party, and its income has not been used for debts incurred by living together.
Article 41 of the former Marriage Law, amended in 2001, stipulates that: "At the time of divorce, debts incurred by the husband and wife who had lived together shall be repaid jointly. If the joint property is insufficient to be repaid, or the property is owned by each other, the two parties shall settle it by agreement; if the agreement is not reached, the people's court shall make a judgment." According to the general principle of debt, in external relations, both husband and wife have the responsibility to repay the obligation with all their own property, i.e., "joint repayment"; Article 25 of the original Interpretation (II) of the Marriage Law stipulates that: "If the divorce agreement of the parties or the judgment, ruling or mediation document of the people's court has already dealt with the issue of the division of marital property, the creditor still has the right to claim rights against both the husband and the woman in respect of the joint debts of the husband and wife." Where, after one party bears joint and several liability for the repayment of joint debts, claims recovery from the other party on the basis of the divorce agreement or the legal documents of the people's court, the people's court shall support it. Article 26 stipulates: "In the event of the death of one of the husband or wife, the surviving spouse shall be jointly and severally liable for the repayment of the joint debts incurred during the marriage." In addition, article 41 of the former Marriage Law, as amended in 2001, also stipulates the principle of repayment of joint debts of husband and wife in the case of separate property regimes, and deletes the expression that "debts incurred by a man and a woman alone shall be repaid by himself/herself". In addition, in order to prevent the husband and wife from maliciously transferring property, evading debts, and infringing on the interests of creditors through divorce, article 24 of the original Interpretation (II) of the Marriage Law stipulates that debts incurred by one of the spouses in his or her own name during the existence of the marital relationship shall be treated as joint debts of the husband and wife. However, unless one of the husband and wife can prove that the creditor and the debtor have expressly agreed that it is a personal debt, or can prove that the third party knows that the husband and wife belong to the agreed separate property regime. In 2017, the original Supplementary Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II) and the Notice of the Supreme People's Court on Issues Concerning the Proper Trial of Cases Involving Marital Debts in Accordance with Law clearly stipulate that a spouse who has not raised debts shall not be required to bear civil liability without trial procedures. At the same time, it is required to pay attention to grasp the criteria for determining marital debts at different stages.
In 2018, the Supreme People's Court promulgated the original Interpretation on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife, which clarified the criteria and rules for determining the joint debts of husband and wife in contract disputes. This provision is made on the basis of absorbing the relevant content of the judicial interpretation, which is the biggest highlight of the marriage and family section of the Civil Code, and provides a relatively clear legal basis for resolving the disputed debt issues of husband and wife in practice.
3. Interpretation of Provisions
This article regulates the joint debts of the husband and wife.
Joint debts of husband and wife refer to debts created on the basis of the joint property of husband and wife with the joint property of husband and wife as security for general property, including debts incurred by husband and wife to solve the needs of common life during the existence of the marital relationship, such as clothing, food, housing, transportation, medical care, performance of legal support obligations, necessary social interactions, as well as debts incurred by the husband and wife for joint production and business activities, as well as debts incurred by the husband and wife for raising children, supporting the elderly, and supporting relatives and friends with the consent of both husband and wife.
The joint debts of the husband and wife correspond to the personal debts of the spouses.
The rules for determining the joint debts of the husband and wife stipulated in this article are: the debts borne by the joint signature of the husband and wife or the subsequent recognition of the joint intention of one of the husband and wife, as well as the 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. The specific criteria are:
(1) Debts incurred by the husband and wife as a joint signature or a joint expression of intent such as the subsequent recognition of one of the husband and wife. The law allows the husband and wife to agree on all the relations of property, including the burden of debts, and the debts that the parties agree to bear for themselves are personal debts. When stippulating personal debts, it may be agreed together with the agreement on property ownership, or it may be agreed on separately with respect to personal debts. There is no mutual agreement between the husband and wife at the time of borrowing, but after the debt, the spouse of the other party recognizes that he is the husband
If the wife has a joint debt, of course, it is also a joint debt of the husband and wife.
(2) Debts incurred by one of the spouses in his or her own name for the daily needs of the family during the marriage, including debts incurred for the maintenance of the spouse or his children, debts incurred for the performance of the maintenance obligations of both spouses or one of the spouses, and other debts of such nature recognized by one of the spouses or creditors at the request of one of the spouses or creditors, such as the purchase of household goods, the repair of the house, the payment of household expenses, the treatment of illness of one or both spouses or even their children, production and business operations, and other debts incurred for the necessities of life. Debts incurred by relatives and friends due to raising children, supporting the elderly, and the consent of both husband and wife are also joint debts of husband and wife.
Debts incurred by one of the spouses in his or her own name during the marriage in excess of the daily needs of the family are not joint debts of the husband and wife. For example, debts incurred by one party without the consent of the other party to finance relatives and friends who have no obligation to support him, debts incurred by one party to raise funds to engage in business activities without the consent of the other party, and debts incurred by one party for personal illegal acts, debts owed by one party before marriage, debts incurred by one party after marriage to satisfy personal desires and are indeed unrelated to living together, etc. In order to protect the legitimate rights and interests of creditors, this article specifically stipulates that unless the creditor can prove that the debt is used for the husband and wife's common life, joint production and operation, or based on the joint intention of the husband and wife.
The provisions of this article are not conducive to the protection of the rights and interests of creditors. Therefore, a lender who provides a loan to one of the husband and wife should keep evidence of the joint intention of the husband and wife or the use of the loan for the joint business of the husband and wife, so as to prevent the husband and wife from evading the joint debts of the husband and wife.
4. Cases
Jiang v. Tan et al., a private lending dispute case
Facts: During the existence of the marital relationship between Tan and Zhong, Tan borrowed money from Jiang, and failed to repay Jiang as agreed, and the loan amount was 2915134 yuan. Jiang appealed to the court and requested Tan and Zhong to jointly repay the principal of the arrears and the capital occupation fee of 3368006 yuan to Jiang. The court of first instance held that Jiang could not prove that the loan involved in the case was used for the common life of Tan and Zhong, nor could it prove that the husband and wife had a common agreement at the time of the loan, and the amount of the loan involved in the case was relatively large, which obviously exceeded the daily needs of the husband and wife, so Jiang had no right to claim that the loan involved in the case was a joint debt of Tan and Zhong and required Zhong to bear joint responsibility for repayment. Tan and Zhong were dissatisfied with the first-instance judgment that determined that the loan relationship involved in the case was established and appealed. The court of second instance held that the existing evidence formed a complete chain of evidence sufficient to prove the fact that Tan borrowed Jiang's funds, so the court of first instance found that the fact that Tan borrowed money from Jiang was not improper.
5. Analysis
According to article 41 of the Marriage Act, debts incurred by the husband and wife while living together are joint debts of the husband and wife. There are two criteria for judging the joint debts of husband and wife: one is to see whether the borrowing behavior is based on the agreement of the husband and wife, and the other is to see whether the loan is used for the common life of the husband and wife. According to the provisions, Jiang could not prove that Tan's loan was based on the mutual agreement of the husband and wife and that the loan was used for the daily life of the husband and wife, so he had no right to request Zhong to jointly bear the responsibility for repayment. Debts incurred by one of the husband and wife 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. The focus of this case is whether Tan's loan to Jiang is a joint debt of the husband and wife. Because Tan's loan amount was relatively large, beyond the scope of the family's daily needs, and Jiang could not prove that the debt was used for Tan and Zhong's common life, and Zhong did not recognize the debt afterwards, the debt was not a joint debt of the husband and wife, and Zhong did not have to bear the responsibility of repayment. According to Article 41 of the Marriage Law, it is not easy to determine the joint debts of husband and wife, so the Civil Code has added a new provision of "joint debts and joint signatures", namely Article 1064.