[Abstract]

In recent years, due to the couple purchase mortgage loans is before or after marriage? The main house signed housing contracts of sale is the husband of one party or both parties? And other reasons, resulting in the divorce proceedings, mortgage housing how ownership and segmentation gradually becomes a difficult problem. In this paper, the author from the recent years about divorce when the ownership and the division of housing mortgages court case to start, combined with the legal provisions and legal theory, makes a discussion on the issue, hoping to.

[keyword] divorceHousing mortgageThe ownership and the Division

[Article Directory]

One, before purchase, acquisition of real estate certificates of housing mortgage has been divorce litigation

(a) spouse premarital personal property mortgage purchase housing and mortgage loans, marriage for the spouse individual ownership of house property card, her common owing on the loan, the house belonging to personal property.

(two) spouse premarital personal property mortgage purchase housing and mortgage loans, her common owing on the loan, the marriage of the property mortgage housing ownership has two viewpoints

1, the first view, house property card although is a document of title, is the proof of legal evidence of ownership housing, but that does not mean the marriage of the house property card is behoove, absolutely is the common property after marriage. In other words, money is the common property system source after the key is to look at the purchase of housing premarital buy side -- the premarital personal property for all; or part of a party before marriage to buy a part of marriage, both husband and wife -- the marriage common property.

2, second point of view, real estate certificate is typical, so that property right law, the joint property of husband and wife or personal property of course must be made to the property card is the time. Obtain property certificates before marriage is the personal property; after marriage permit access to property is the common property.

(three) couples premarital to common property mortgage purchase housing and mortgage loans, her common owing on the loan, premarital permit access to property mortgage housing, the housing is the joint property of husband and wife

(four) couples premarital to common property mortgage purchase housing and mortgage loans, her common owing on the loan, after the acquisition of real estate certificates housing mortgage, the house belonging to the joint property of husband and wife

Two, married couples a parent participation contributive buy, the marriage of the property mortgage housing ownership (parental contribution vesting)

(a) the first view, the husband's point of view is not correct. "My parents made it clear that" not only includes the written and spoken two express form.

(two) the second view, the husband's view is correct. "My parents made it clear that" only include oral and written two express form.

Three, pre marital spouse parents participation contributive buy, the marriage of the property mortgage housing ownership (parental contribution vesting)

Four, the divorce suit fashion not permit access to property mortgage housing ownership

(a) the first view, the divorce suit fashion not permit access to property mortgage housing ownership, not in addition to the use right of house outside all can't handle.

(two) the second view, if at the time of divorce, the controversial real estate certificate has not been issued, the people's court or a party to apply for suspension of hearing, to be real property certificates issued down further processing; to determine the right to use or ownership, and property cards down, then the dispute parties be prosecuted to the court processing.

Five, the joint property of husband and wife of mortgage housing property

 

 

[text]

[cases (a)][1]2002 year in November, Lee in the form of mortgage loans to buy a house, pay the first payment of 90000 yuan, for a housing mortgage, made real estate certificate, and owing on the loan 2354 yuan per month. In 2003 September, Lee and Qin married, in has good decoration new premises. After marriage, both sides often quarrel among some life trivia, in 2005 December, Lee filed for divorce. In court, Qin Mou agree to divorce, but think after two common owing on the loan, housing is the joint property of husband and wife, request the division; and Li Mouze think, housing is their premarital property, marriage is also owing on the loan, cannot be divided.
Beijing Daxing District people's court after hearing that, the disputed house is Li Mou party premarital buy, made real estate certificate, should belong to the individual property, but after marriage, both common owing on the loan or with their deposits owing on the loan, the sum of metal to the husband and wife together all of the property, it should be in accordance with the principle of common property division division the.

[cases (two) with][2] Chen Mou is a pair of husband and wife, Chen before the marriage to the first phase of 100000 yuan mortgage loans worth 500000 yuan to buy a house, 20 years to pay off. Chen on and he married before, for the housing property procedures, property chen. 1 years later, Chen and Hemou married. Live together after marriage 8 years, repayment of the loan principal and interest 200000 yuan, the remaining part of the loan is not repaid. At this time the breakdown of marriage, the divorce court. Both sides claim ownership of houses, the resulting disputes. Then this set of premarital mortgage house, how to allocate?
   Finally, in the judgement of the Court released Chen and Hemou couples relationship, together to this set of premarital mortgage house division. The court found the payment Chen before marriage payment and 1 years for paying back the principal and interest in a total of about 100000 yuan to premarital property, owned by individuals. For 1629 and interest paid by the marriage of the joint property of husband and wife, should be in each half. Then through the court building value assessment, based on listening to the plaintiff and defendant would continue for the room on the opinions of the reasonable of Chen and Hemou respective share of segmentation.

[case two (a)][3]2002 year in May, Zhang bought a 150 square meters of housing in Nanning City Langdong a residential mortgage loans, to 1560 yuan for the month. In 2003 January, Zhang and married Ms. sun, in the government's work after marriage, both sides of the payment of housing loans. In 2005 September, Zhang and Ms. sun because of personality clashes, the breakdown of marriage, the divorce negotiations fail circumstances, Ms. sun to the court, requesting the court to lift the relationship of marriage, the division of common property.
In the divorce proceedings, Zhang and Ms. sun did not dispute the couple other common property, but to Zhang purchase, married in premarital mortgage co payment housing, whether to belong to the joint property of husband and wife, there is a dispute. Ms. sun believes that the housing is Zhang premarital buy, but she and Zhang after marriage, from time to time with their wage payment of housing loans, therefore, she should have the ownership of housing; Zhang think, even after marriage, housing loans for housing co payments, but no payment is completed, housing does not belong to the common property of the couple but his own property.
After the court, think Zhang and Ms. sun relationship has been broken, dissolved their marriage. The controversial mortgage housing, that in the absence of complete payment of housing loans, they have not yet achieved full ownership housing, not according to the couple's common property division. Then according to the housing purchase housing judgment, by Zhang use.

 

A divorce, premarital purchased, already obtained the [4] of real estate certificates of housing mortgage

(a) spouse premarital personal property mortgage purchase housing and mortgage loans, marriage for the spouse individual ownership of house property card, her common owing on the loan, the house belonging to personal property.

After one spouse participated in the liquidation of loans, the housing does not change the nature of personal property, therefore, the division of property in divorce, the house is premarital personal property. The remaining outstanding debt to personal debt, has returned to the loan of one spouse to part, shall be returned. What need points out is: common owing on the loan, whether by side with individual wages owing on the loan, or use both wages owing on the loan, which shall be deemed to be husband and wife common owing on the loan. The exception is if the purchase party can be confirmed, its owing on the loan funds from personal premarital property, then the housing is personal property, the other party has the right to split.

(two) spouse premarital personal property mortgage purchase housing and mortgage loans, her common owing on the loan, the marriage of the property mortgage housing ownership has two viewpoints

The author thinks that the problem is in fact, real estate certificate acquisition time and the house ownership has no relationship problems. There are two kinds of views:

1, the first view, house property card although is a document of title, is the proof of legal evidence of ownership housing, but that does not mean the marriage of the property ownership certificate of the house would behoove, absolutely is married to all. In other words, whether the marriage common property of the key is to look at the Department of money to purchase housing for all sources of premarital buy side -- is the personal property before marriage; or as part of the purchase of a party before marriage, after marriage both husband and wife as part of the common property after marriage (loan) --.

(1) if the money source purchase housing premarital buy party for all, I think that should be identified as premarital buy a party's personal property.

Its theoretical basis as Jia Mingjun lawyers in the "marriage law" with your interpretation of the Shanghai High Court people a court in civil law applicable to the "6" question and answer ", one of the spouses to premarital deposits in the marriage property purchase of housing or other property, whether to belong to the joint property of husband and wife? Answer: the transformation of premarital property in the marriage form, does not affect the nature of the property. Therefore, a spouse before marriage, after marriage to deposit the purchase of housing, the purchase of course belongs to the party premarital property. If the other party has no contribution, do not advocate enjoy housing share. Similarly, transforming premarital other property form, also do not affect its nature as premarital property. In addition, premarital property produce fruits, such as premarital deposits interest property, to premarital property. Analytic: premarital property is not with the evolution of marriage form into a common property, that is the truth. In practice, many people even lawyers to pull the dead marriage law seventeenth, that any property acquired during the marriage are the common property of the view is wrong. This, according to the Supreme People's court vice president of ponderosa pine and some words are "change not to leave their trace"." [5] has "the Henan Provincial Higher People's Court (civil trial chamber I) guiding opinions on several issues of current civil trial" (2003 November) the fifty-ninth stipulation: "before marriage has been achieved, but in marriage to complete possession, control or improve the property procedures, such as marriage, permit access to property, inheritance events before marriage, the marriage of the heritage, premarital complete intellectual creations made gains in the marriage, as personal property." I understand the so-called "actual" refers to have signed housing contracts of sale, and delivered 1629 even joint fees, taxes and other expenses. The so-called "married to complete possession, control or improve the property procedures, such as the marriage of the house property card" refers to a party before marriage has made including real estate, property, property rights to price payment is completed, after complete possession (for real), control (for real) or perfect property procedures (for immovable property), such as the marriage of the house property card etc.. Therefore, the Henan High Court and the high court of Shanghai legal basis under the same.

It is necessary to pay attention to the rural houses, built their own actual possession and ownership of urban housing system according to law; housing registration to obtain housing ownership basis, however, if the system comes to buy housing purchase money before a party for all, I think that should be recognized as a party before marriage to buy personal property -- just in time before the acquisition of real estate certificates have not yet obtained the property right in it (because the original urban housing is not real people)! "The Henan Provincial Higher People's Court (civil trial chamber I) guiding opinions on several issues of current civil trial" (2003 November) sixtieth first, two or three, four paragraph: "house party premarital constructed, married couples living together for use, if the two sides no contrary agreement, as personal property." "Both men and women in the family after marriage common residential use, to marriage for couples is jointly funded the construction or purchase of housing, as the joint property of husband and wife." "Both parties before the marriage, a parent funded the construction or purchase of the both sides of the house, unless the parents clearly expressed or other evidence that the housing has the gift of both husband and wife, can not be regarded as the joint property of husband and wife." "One family for their children married and the construction or purchase of housing, mainly rely on loans or loans, the loans or loan department of children by both marital income to repay, as the joint property of husband and wife."

(2) if the purchase money for the purchase of a party before marriage portion, part of marriage both husband and wife are out (owing on the loan), I think that should be recognized as both husband and wife property.

In the theory of law, the author thinks that the concept of the view seems to be necessary to define the property right and property right, obviously pre marriage party signed the purchase contract has not yet been made real estate certificate, we can not say that he has not yet made any property, but obviously we can not say that he had been right, otherwise the legal principle of the property right will be get rid of! Although the trend of modern legal principle of the property right is absolute to relative ease of moderate, namely the legal principle of the property right! [6] we now can only say that he had obtained the property -- claims (claims), rather than property right (right). So now that married couples common owing on the loan (housing the property joint), and represents the title to property certificate is made in the marriage, that the real estate this case belongs to both husband and wife property is the most appropriate. In this regard, "the Henan Provincial Higher People's Court (civil trial chamber I) guiding opinions on several issues of current civil trial" (2003 November) the fifty-eighth stipulation: "the party premarital loan or through the purchase of mortgage banks, housing loans, the purchase of debt repayment by jointly after marriage is obtained, as husband and wife property." That should mean that.

2, second point of view, real estate certificate is typical, so that property right law, the joint property of husband and wife or personal property of course must be made to the property card is the time. Obtain property certificates before marriage is the personal property; after marriage permit access to property is the common property.

   The above two views I agree with the first statement.

(three) couples premarital to common property mortgage purchase housing and mortgage loans, her common owing on the loan, premarital permit access to property and property registration in the name of the Party of housing mortgage, the house belonging to the joint property of husband and wife

Of note, this couple the other party must have evidence to prove: one is the premarital property is jointly funded; two is and at the same time there is evidence that their marriage is based on both sides agree to buy houses all together under the premise of contribution. Two must be both are indispensable! Otherwise, may still have the property that is registered in the name of the Party of personal property.

(four) couples premarital to common property mortgage purchase housing and mortgage loans, her common owing on the loan, after the acquisition of real estate certificates housing mortgage, the house belonging to the joint property of husband and wife

The problem is getting married after two common mortgage home, after the divorce does not turn? How to transfer? These should be based on a concrete analysis of concrete conditions. For example, "Lin and Xiao Zhang two people get married with a mortgage to buy a house, and made real estate certificate, the certificate is written his name, but it is still in the contributions owing on the loan. Later, two people divorce, the house to the woman Lin, Xiao Zhang, will not continue to make contributions, and now villa also living in the house since, temporarily do not want to sell.

Position at Villa, lawyers do not think they can temporarily transfer procedures. As a result of ongoing mortgage, Xiao Zhang is currently unable to sell the house privately. But if it is to transfer, a method is an amount of money paid to lease it; if funded, and only through refinancing procedures to transfer, involving a sum of the related mortgage costs, and to spouses signature consent. Standing position, lawyers or recommendations for transfer procedures, as the original title because people will risk, although the house has been awarded to the other, they should not contribute, but when villa can not afford to contribute or not money, banks recover objects remains of the original property owner Xiao Zhang, and so there is no need to back this debt. In addition, if Xiao Zhang ignore it, will buy another new house for mortgage, the so-called had no mortgage record would affect their integrity. In short, the two issues should be according to the actual conditions of the agreement. Another situation, if Lin not to live, to sell the house, can not be sold directly, because the housing property does not belong to Lin himself, must be transferred to the transaction." [7]

 

Two, married couples a parent participation contributive buy, the marriage of the property mortgage housing ownership (parental contribution vesting)

For example, a woman married in 2004 May. In July the same year, the female parents bought a 900000 yuan worth of commercial housing for the woman and her husband lived, the woman and her husband have not a single. In handling property registration, the female parents put their names and the female name write cards, without the woman her husband's name write off licence. Shortly after their marriage, the woman and her husband to divorce. Can be said to her husband, divorce can, but the house 1/3 of the value of the property right -- the woman's parents contribution of principal and interest as we shall be the joint property of husband and wife, the average segmentation. Ask the husband's view is correct? In this regard, there are two kinds of views.

(a) the first view, the husband's point of view is not correct. "My parents made it clear that" not only includes the written and spoken two express form. Because the "marriage law" (two) the provisions in the second paragraph twenty-second: "parents in both investor after marriage, as a gift to couples, but parents expressed as a gift one exception." In this case, the parents to buy a house daughter contribution, in handling the registration of property rights to their daughter's name written in the cards, without her husband's name cards, such a move can be considered to grant daughter party parents contributive buy a house. In this regard, the high court of some provinces and cities have clearly defined, such as the Shanghai Municipal Higher People's court "on the application of" the Supreme People's Court on Issues Concerning Application of the marriage law interpretation (two) > answers to some questions (a) "the fifth stipulation:" practice, the couple married parents financed the purchase of housing property registration in contributors to their children's name, from the point of view of social common sense, can be regarded as is clear to their children a party gifts, this part of the capital contribution shall be identified as individuals; if the registration certificate on the investor's spouse's name, unless one can prove that parents financed the written agreement or the statement at the time, that contribution who made it clear to a gift, in general should be recognized as a gift to both sides to properly. Part of the investment should be identified as community all."

(two) the second view, the husband's view is correct. "My parents made it clear that" only include oral and written two express form. "That is usually the case, the parties in marriage, either one or both parents for both parties to purchase housing investment, in addition to parents made it clear that the contribution is the gift of their house payments situation, according to the provisions of principle of statutory matrimonial property system, should be identified as community property." [8] so, according to the principle of civil law, the legal action form is based on the "general rule of the civil law" fifty-sixth stipulates: "the civil legal act may be in written form, oral or other form. The law stipulates that a particular form, should be in accordance with the law." In accordance with the provisions and judicial practice in China, the juristic act can be divided into explicit and tacit two categories. The explicit forms including oral and written form; implied form of presumption implied and silence. [9] apparently, "parents made it clear that" this kind of legal form refers only to the express form!

So, parents buy a house for her daughter contribution, in handling the registration of property rights to their daughter's name written in the cards, without her husband's name cards, whether such a move is to express the form? Obviously not. Step back and say, whether it belongs to the presumption implied? I think I can not absolutely say such a move is presumption implied as a party gifts, because can not rule out the reasons in the contract because of omission, negligence parents no legal consciousness and their children's spouses leakage column!

I agree with the second view.

Note that, if one party, lent their parents paid the money to buy a house, but not the gift, and come up with a proof. In this regard, the court is common practice, first look at the other side of the attitude, if the other party does not admit, the court generally not the debt is established for substantive review, because creditors can not be third people to participate in the proceedings. Therefore, the court in such cases, the segmentation and the housing, will tell that borrowing a party can separate prosecution.
   

Three, pre marital spouse parents participation contributive buy, the marriage of the property mortgage housing ownership (parental contribution vesting)

The ownership of the property belonging to see this article.

As for pre marital spouse parents invest in accordance with the interpretation of the Supreme People's court "on the application of 'issues' marriage law of the people's Republic of China (two)" specified in the first paragraph of article twenty-second executive. That: "the parties before marriage, both parents financed the purchase housing, the money shall be determined as a personal gift of their children, but parents expressed both except gift."

 

Four, the divorce suit fashion not permit access to property mortgage housing ownership 

Interpretation of the Supreme People's court "on the application of 'issues' marriage law of the people's Republic of China (two)" the twenty-first stipulation: "at the time of divorce both parties have not obtained the ownership or have not yet obtained full ownership of the housing disputes and the consultation fails, the people's court should not be decision attribution of ownership of housing, should be based on the actual situation judgment used by the parties concerned. The house as mentioned in the preceding paragraph achieved full ownership, controversial, may bring a lawsuit to the people's court shall."
   Therefore, whether the only housing judgment is used, to solve the problem until the final ownership be prosecuted after the acquisition of ownership? There are two kinds of views:

(a) the first view, the divorce suit fashion not permit access to property mortgage housing ownership, not in addition to the use right of house outside all can't handle.
   Specifically, the ownership of the mortgage and housing have not yet obtained the divorce proceedings, can be divided into the following two kind of situations to deal with:
   Before 1, in the name of party signed housing contracts of sale, pay the first payment and signed mortgage contracts housing.

Because of the housing sales contract the buyer is a spouse, contractual obligations by the party before marriage performed, so, the contract rights should be enjoyed by the party, the party premarital personal property rights, the housing tenure can not make judgments in divorce cases. The negative for the purchase of mortgage debt, the debt was formed in the marriage, shall be recognized as the purchase of a party's personal debt, is unable to make a decision in the case of divorce.

For mortgage loans in the amount of common payment during the marriage, is actually to the joint property of husband and wife to repay a party's personal debt, the amount should be identified as the joint property of husband and wife, in principle should be the average separation. If during the marriage, the house value, taking into account during the marriage, to the joint property of husband and wife to repay a party premarital negative personal mortgage debt, contributed to the other party to the housing value, value-added (from risk because of not paying the mortgage and mortgage right exercise the mortgage right), so, the house on marriage during the existence of the appreciation is the result of joint efforts of both sides, shall be made by the housing ownership housing value-added part during the existence of marriage to the other party to appropriate compensation.

2, premarital name on both sides signed housing contracts of sale, pay the first payment and sign a mortgage contract, or married to one party or both parties name signed housing contracts of sale and mortgage loan contract of mortgage housing.

In this case, if the two sides signed housing contracts of sale by name, then both husband and wife for housing sales contracts to the buyer, fulfill the obligations stipulated in the contract, the corresponding, share the contract rights. If married to a party name signed housing contracts of sale, although relative to the seller, the buyer signed contract is a party to the contract, but the contract rights, creditor's rights are obtained during the existence of marriage, couples the right belongs to the common debt in marital internal.

Therefore, in divorce cases, according to above two kinds of circumstances, should be in keeping with the consistency of the housing and mortgage debt. For housing, according to the divorce parties or commissioned by the assessment of the housing price, the judgment by a party is entitled to the buyer housing sale contract rights, and by the other party discount compensation. The discount compensation principle for half the price of housing, but also need to take care of children and the rights and interests principle. So, enjoy the housing sale contract rights party enjoys the right to use the housing. The mortgage debt, because the two sides is the common borrowers in the mortgage loan contract or the debt formed during the existence of marriage, in the absence of evidence is a personal debt, the debt is the common debt of both sides, both sides have common loan repayment obligations. Therefore, in the judgment of the sale of housing rights contract by one party and sometimes, taking into account the housing and mortgage is a mortgage contract, the parties shall continue to perform the decision by the mortgage loan contracts, loan balance, and half of another party to divorce the balance of housing value less the loan principal owed for quasi to compensate. This includes the processing of housing tenure, housing sales contracts continue to fulfil a party to enjoy all the rights of the contract, it shall have the right to take delivery of the housing seller's delivery and possession, use of the housing, to obtain the ownership.
(two) the second view, if at the time of divorce, the controversial real estate certificate has not been issued, the people's court or a party to apply for suspension of hearing, to be real property certificates issued down further processing; to determine the right to use or ownership, and property cards down, again by the disputed parties be prosecuted to the court processing.
I agree with the second view.

Five, the joint property of husband and wife of mortgage housing property

In this regard, the main application of "marriage law" the people's Republic of China, second, thirty-nine, the Supreme People's court "interpretation concerning the application of 'issues' marriage law of the people's Republic of China (two)" the provisions of article twentieth, "the Supreme People's Court on the trial of divorce cases handled property division of a number of specific comments (November 3, 1993)" the first section and the 12, 13, 14 and so on the law property.

Notes.

[1] "before a party to buy mortgage real divorce according to common property division" 2006-3-3 11:48:58 Author: Zhang Bin from: Editor: Han Xiaoliang lawyer

[2] "how to split the premarital mortgage house at the time of divorce?" Author: Guangdong legal disputesNet |info@mylawyer.cn   Posted: the original site  Click the number: 302

[3] "divorce, mortgage housing owned? "Http://www.dffy.com2005-12-28 18:46:43 Author: Wang Zhean source: Oriental

[4] called a mortgage housing, refers to the property sale contract, the buyer to pay part of the purchase, in accordance with the contract the building look right transfer to the bank as collateral to obtain bank loans. The loan amount is not paid the purchase, if the buyer fails to fulfill the obligations about servicing, a method of loan loss this expectation right of redemption. The building is completed, the mortgage that is converted to a mortgage. The legal nature of mortgage of her flowers, according to the mortgagee and mortgagor between rights and obligations, whether from the set objective, or legal effect, substantial mortgage is the purchase of mortgage loans, and mortgage is basically the same, did not exceed the mortgage category, is not a chattel mortgage, but it is different from the legal provisions of the mortgage guarantee way. See Li Guoguang Xi Xiaoming Jin Jianfeng Cao Shibing details the "Supreme People's Court on issues concerning the application of the" PRC security law "interpretation and application", Jilin people's publishing house, 2000 December first edition, thirty-fifth pages.

[5] "with you" marriage law interpretation of Shanghai High Court people a court in civil law applicable to ask ""Www.iamlawyer.comDate: 2006-2-16 17:50:56 news source: the author: Shanghai Jia Mingjun Shen Hao law firm lawyers

[6] see Liang Huixing, Chen Huachen with "property law", Law Press, 1997 September first edition page fiftieth. See also "the draft law on real (article

The three version) "the amendments to statutesA: recorded in the real property register is the property rights of people, movable possession is the property rights of people, unless there is evidence to the contrary except.
   Reason: the demonstrative principle of real right and immovable property registration principle of presumption of rights and the principle of presumption of rights of possession, is obviously different. The principle of public summons, belong to the basic principles of property law. Presumption of rights of real property registration and the presumption of rights of property possession, is according to the conversion of burden of proof rules. Article fourth shall only be prescribed the principle of public summons, the special provision shall not move the principle of presumption of rights registration and dynamic principle of presumption of rights of property possession

[7] Baidu search "divorce"One of the housing mortgage" divorce housing: housing mortgage "

[8] from Huang Songyou, "the Supreme People's Court judicial interpretation of the marriage law (two) of the understanding and application of", the people's court press, 2004 January first edition, 187th pages.

[9] see Liu Zhihui, Jiang Ping approval "civil law", Chinese legal publishing house, 2003 September first edition, 161st pages.