May 2024 is the fourth "Civil Code Publicity Month" in mainland China. The Civil Code of the People's Republic of China, known as the "encyclopedia of social life", is the first law named after the code in New China, occupies a fundamental position in the legal system, and is also the basic law of the market economy. Zu Miaojun selected 10 classic cases to help the masses better understand and learn the Civil Code by explaining the law with cases.
Brief facts of the case
The man, Li, and the woman, Sun, established a relationship after being introduced, and the two registered their marriage on September 5, 2018. After marriage, due to incompatible personalities and frequent quarrels over trivial family matters, Sun sued the court twice for divorce and divided the joint property of the husband and wife on the grounds of the breakdown of the relationship between the husband and wife.
Sun claimed that on August 27, 2018, he signed a house purchase contract with the real estate company, and purchased a property in Xinyuan Community that belonged to his pre-marital property.
Li replied that when purchasing the property, Li's mother paid a down payment of 200,000 yuan to the real estate company through bank remittance on August 27, 2018; The remaining 490,000 yuan is a housing provident fund loan in Li's own name and repaid, and Li has repaid the housing provident fund loan and interest of 290,000 yuan; The reason for signing the purchase contract in Sun's name is that the property is developed by Sun's unit, and Sun can enjoy the preferential price for employees.
Heard by the courts
The court of first instance held that:
Sun has filed for divorce with the court twice, and the two parties often quarrel, the relationship has broken down and there is no possibility of reconciliation, and the judgment allows the two parties to divorce.
The real estate in Xinyuan Community was signed by Sun and the time of signing and paying the down payment for the purchase of the house occurred before Li and Sun registered their marriage, and the property was purchased by Sun before marriage, and the court of first instance ruled that the property belonged to Sun's personal property before marriage. Li was dissatisfied with the first-instance judgment and appealed.
The court of second instance held that
The ownership of the real estate involved in the case should be determined in conjunction with the capital contribution to the purchase of the house.
First of all, the appellant Li asserted that the down payment was paid by his mother's remittance, and although the appellee Sun had objections to this, he did not submit evidence that Sun paid the down payment, so it can be determined that the down payment for the purchase of the house was paid by Li's mother.
Secondly, the appellant Li claimed that the remaining housing money should be paid by him with a personal housing provident fund loan, and the appellee Sun also agreed to this in the first instance. The court of first instance only ascertained that the time when the real estate contract was signed and the time of payment of the down payment was earlier than the time when the appellant and the appellee registered their marriage, but did not ascertain the actual payment of the house money, and found that the real estate was purchased by Sun before marriage and belonged to Sun's personal property before marriage, which was an unclear finding of facts, and this court corrected it.
If the purchase of a house is purchased before the marriage of the child, unless the parents expressly express the gift to both parties, the parent's contribution is a separate gift to their own child. In this case, the down payment paid by Li's mother for the purchase of the house should be regarded as a gift to Li. The part of Li's repayment of the mortgage after marriage should be regarded as the joint property of the husband and wife, and may be distributed in combination with the appreciation of the house. In view of the down payment and loan repayment of the property involved in this case, it was determined that the property involved in the case belonged to Li, and the remaining mortgage was repaid by Li himself.
In summary, the court of second instance ruled that:
01
The real estate in Xinyuan Community is owned by Li;
02
Li paid half of the amount of the housing provident fund repayment during the existence of Sun's husband and wife (290,000 * house appreciation rate/2);
03
The remaining housing provident fund loan was repaid by Li.
What the judge said
In recent years, with the continuous rise in real estate prices, it has become a difficult point to determine the nature and division of the house in divorce cases. Due to the high price of the house, the children are often unable to afford it when they get married, so the sources of funds for the purchase of a matrimonial house are becoming increasingly complex, which may include the contribution of one or both parents before the marriage, as well as the contribution of both spouses after the marriage, i.e. the return of a mortgage loan or provident fund loan. In terms of ownership, some matrimonial houses are registered in the names of both spouses, while others are registered in the names of only one of the spouses. Since the relationship between the relevant parties at the time of purchase is harmonious, there is no clear agreement on the ownership of the house, and it is naturally impossible to enter into a written contract; Once the relationship between the husband and wife breaks down and they are about to divorce, and the two parties have different opinions on the ownership of the house, it will bring great difficulty to the trial of such cases.
Specifically, regarding the nature of the parental contribution, if there is a clear agreement on whether it is a gift or a loan, the agreement must be followed. If it is a gift, depending on the time of purchase, the object of the gift will be different depending on the time of purchase. Under normal circumstances, if the purchase of a house is purchased before the marriage of the child, unless the parents expressly indicate that the gift is made to both parties, the parents' contribution is a separate gift to their children; If the purchase of a house after the marriage of the child, the parent's contribution is a gift to both the child and the husband and wife, unless the parents expressly indicate that the gift will be made to one party.
Combined with this case, Li's mother contributed to the down payment of the house, and the payment was made earlier than before Li registered his marriage, and there was no clear agreement between Li and his mother that the payment was a loan, so it can be presumed that Li's mother's capital contribution was a gift to Li. When dividing the property, Li's mother's capital contribution belonged to Li in accordance with the law. The contribution of the husband and wife and the joint repayment of bank loans after marriage shall be recognized as the joint property of the husband and wife. Therefore, in this case, the housing provident fund loan and interest repaid by Li during the existence of the husband and wife relationship were divided according to the joint property of the husband and wife. For the remaining mortgage after the judgment of divorce, the general situation is that whoever awards the property will be responsible for it.
Links to legal provisions
Article 29 of the Interpretation (I) of the Supreme People's Court on the <Application of the > Marriage and Family Section of the Civil Code of the People's Republic of China" stipulates that if the parents contribute to the purchase of a house for both parties before the parties get married, the contribution shall be deemed to be a personal gift to their children, unless the parents expressly express the gift to both parties. After the parties get married, if the parents contribute to the purchase of a house for both parties, it shall be handled in accordance with the agreement; Where there is no agreement or the agreement is not clear, it is to be handled in accordance with the principles provided for in item 4 of paragraph 1 of article 1062 of the Civil Code.
Zumiao Micro News Editorial Group
Source: China Legal Popularization Network, Zumiao Street Judicial Office
Editor: Foshan News Network Yang Xiaoting
Review: He Jinting, Yang Rongyan, Wang Minghui
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