How to divide the premarital property party loan to buy a house together after marriage owing on the loan at the time of divorce?

   Due to China's rapid economic development, leading to social traditional houses selling way hit increasingly shrinking wilt, replace sb. bank mortgage loan to buy a house as the purchase of a new trend, and increasingly popular. The positive significance and convenience of modern society and life consumption cannot be denied, but sometimes will also bring some legal issues, the main problems in mortgage loans to buy a house before a marriage together, owing on the loan during the marital relationship, and then divorce property division issues. And this problem occur rate rise. But because of the lag of China's marriage law and the relevant provisions of the resulting in the marriage and the relevant provisions of the law can not find the law in full compliance with the condition, therefore appear more similar to this kind of problems, there are a lot of lawyer's point of view, summed up the three main views: the first view, because the purchase of mortgage loans in the amount or the first payment is the first payment of the total 1629 smaller proportion, and also a larger proportion of a loan, and is for the husband and wife after living together for behavior, so the whole house is the joint property of husband and wife. The second kind of view: Premarital pay part and added value belongs to the individual all, after common loan part and value-added part of the common. The third kind of view: Premarital pay part and the added value of pre marital personal property, after common loan part and value-added part of the common property of the couple. In this three point third point of absolute mainstream.
   First of all, the first view, is absolutely wrong, in the marriage law of our country, the eighteenth paragraph, one of premarital property, belonging to a party to the husband and wife property. This view is clearly contrary to our marriage law. It is wrong.
   The second view, seems to have some truth, but also have the problem of. The concept of "common" very fuzzy, according to China's civil law theory "common" is divided into three categories, one category is husband and wife are common; two is the family are common; three General Co. If the second viewpoints of "common" as "husband and wife are common" or "family common" are second kinds of viewpoints and the third view is the same. The specific details of the third view in the following discussion, here no longer say. If the "common" as "the general is a common" more problems, because the "common" and "husband and wife are common," family "common" by a common way, in other words, in addition to the "husband and wife are common", "the family are common" means other than is the "general common", then the relationship between husband and wife, but only two kinds of forms, a husband and wife are common, and all two of them. Thus the second view is untenable.
   Look at the third point, third point on the surface is rationality, but careful scrutiny is problematic. Third kinds of viewpoints premarital property and marital common property division is the node at the time of the establishment of marriage. There is nothing wrong with this method, but does not take into account the relationship between marriage law and other laws as well as the legal relationship of marriage and other legal relations caused. Only nodes with the establishment of marriage is simply make it rigidly uniform approach. The so-called common refers to a mode of ownership of property. If the ownership in the absence of transfer, gift, inheritance, give up, national compulsory alteration, stipulations and provisions of law, is not split or change. If there is no property during the marriage contract, the establishment of marriage can not change the ownership of the property form. That is to say premarital personal property belonging to the premarital pay part and added value of third kinds of views ", after common loan part and value-added part of the common property of the couple." Is wrong.
   I think, in order to solve the loan mortgage buy a house before marriage, after marriage owing on the loan together during the marital relationship, and then divorce property division issues, we must first resolve the following legal relationship, first, the marital property relations; second, buy a house, the sale of legal relations; third, apply for bank mortgage loans, the legal relationship between the legal relationship of credit and mortgage, guarantee. To correctly confirm the property is the common property of the couple, or premarital personal property, the most important is to resolve the second third kinds of legal relationship. Look at the buy a house when the legal relationship and its performance results, the buyer and seller will often signed the "housing sales contracts" to buy a house, the general agreement on terms of payment: the buyer Shoufu * * * *, the remaining mortgage loans for banks. Some people think that the contract is signed or the first payment delivery to mortgage loans repaid, housing ownership formation process, so there will be a pre pay part and the added value of the so-called "belongs to the pre marital personal property, after common loan part and value-added part of the common property of the couple." This assertion. In fact, we put the "housing sales contracts" and "mortgage contract" (also called "personal housing mortgage contract") separately, step by step analysis will stick out a mile. First, the first buyer signed the "housing sales contracts" and the seller, after the buyer signed with the bank mortgage contract "". "The bank for the mortgage contract" content and perform general process is: the buyer to the bank for payment beyond the balance of the loan. The bank to verify is passed, the buyer to apply for the loan fund, to pay the seller, and for real estate mortgage procedures. Buyer under the contract agreed to fulfill the repayment obligations. Look at the "housing sales contracts" in content and performance process, the buyer signed the "housing sales contracts" and the seller, agreed on terms of payment: the buyer Shoufu * * * *, the remaining mortgage loans for banks. So in the bank mortgage loan to pay the seller, the buyer's obligations cease (that is, pay the full 1629). Therefore housing registration in the housing sector to date, home ownership has been identified, that is the buyer. On this basis, if the buyer is unmarried is personal property, the buyer married is the joint property of husband and wife (in the absence of agreement). Has fulfilled the "housing sales contracts" is over, but the "bank mortgage loan contract" will continue to fulfill the repayment obligations, this is the legal relation. If the buyer after marriage "bank mortgage loan contract" was fulfilled, so even before the debt after marriage with common property to repay the situation, so if divorce, the debt part, should compensate the other party to the marriage.

Tianjin Jinnuo Legal Consultancy Center

Yang Yulong lawyer