Civil and Commercial Perspective... Risk prevention on avoiding the conversion of personal property before marriage into common property after marriage.
Published:
2024-04-07
Regarding the risk prevention of avoiding the transformation of personal property before marriage into common property after marriage, the author combs the problem with a specific case, hoping to enlighten everyone.
Article 1063 of the Civil Code clearly stipulates that "the personal property of one of the spouses shall not be converted into the joint property of the husband and wife as a result of the continuation of the marital relationship". It can be seen that the property acquired by one party before the marriage belongs to the property of one of the spouses and cannot be recognized as the joint property of the husband and wife. Unless the husband and wife have a special agreement on this part of the premarital property, it cannot be treated as the joint property of the husband and wife in principle. Naturally, if the husband and wife divorce in the future, this part of the property cannot be divided. However, under the concept of special family marriage in our country, personal property before marriage is easily mixed with common property after marriage, and personal property before marriage may also undergo various morphological changes, so there is a risk that personal property before marriage is transformed into common property after marriage. Now the author combs the problem with a specific case, hoping to enlighten everyone.
1. brief
Zhang and Li got married in May 2020 and gave birth to a daughter named Zhang Xiaoli in November 2021. In November 2021, the two parties signed a "commercial housing sales contract" with a real estate development company, and purchased a set of commercial housing registered in the names of both parties, with a down payment of 2.66 million yuan, of which 1.68 million yuan was Zhang's money for selling his personal premarital house, and the balance was mortgaged. Is the share of the property purchased after marriage with 1.68 million yuan of pre-marital property belonging to his personal pre-marital property or the joint property of the husband and wife?
2. case analysis
In this case, because there is no special agreement between the two parties, the two parties made a down payment of 2.66 million yuan when signing the "Commercial Housing Sales Contract". If Zhang can prove that 1.68 million yuan in the down payment is the money for the sale of his personal premarital house, the premarital personal property of 1.68 million yuan is only The existing form has changed, and the nature of the property itself remains unchanged and cannot be converted into the joint property of the husband and wife. Of course, in this case, since it was purchased after marriage, the purchaser has the burden of proof to prove that he is taking personal property to pay the full amount of the house. If it cannot be proved that the paragraph is personal property, there is a risk that it will be recognized as the joint property of the husband and wife. Article 31 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that Article 1063 of the Civil Code stipulates that the personal property of one of the spouses shall not be converted into the joint property of the spouses due to the continuation of the marriage relationship. Unless otherwise agreed by the parties.
In this case, the parties may provide the following evidence. Such as: the sale of pre-marital property "housing sales contract", bank transfer vouchers and payment to the developer's account bank vouchers and other evidence. These evidences form a closed chain of evidence, which is sufficient to prove that the 1.68 million yuan contributed by Zhang after the marriage came from the sale of the house owned by the individual before marriage. The share of the property involved in the case purchased with the individual's pre-marital property should belong to the personal property and should not be divided as the joint property of the husband and wife. This requires a clear and unconfused property, which is only a change in the form of pre-marital personal property (property) after marriage (property-money-property), not a change in ownership and nature, nor a transformation of pre-marital property into joint property of the husband and wife.
The Supreme People's Court's trial business opinion also held that: the parties use their personal property before marriage in other ways than production and operation, even if the form of the property changes as a result, it will not lead to changes in the ownership of the above-mentioned property and its natural value-added attribution.
3. trial practice
In case (2016) Qiongmin Zhong No. 152, which is similar to the facts of this case, the Hainan Provincial Higher People's Court issued the following opinions on "this issue:
What is Tao's specific share of the property involved and whether it should be divided as the joint property of husband and wife. First of all, Tao's share of the property involved in the purchase of the property with pre-marital property is personal property. In the first instance, Tao claimed that the 1.75 million yuan spent from his personal bank account was the proceeds from the sale of personal premarital houses, and submitted the "Beijing Stock Housing Sales Contract" and "Supplementary Agreement" signed with Li Wei on March 2, 2010. Bank transfer voucher and personal business voucher. Rao did not submit the 1.75 million yuan, which is the evidence that Tao obtained during the existence of the relationship between husband and wife, which should belong to the joint property of husband and wife. Therefore, the court determined that the above-mentioned 1.75 million yuan was Tao's personal premarital property, and Tao's share of purchasing the real estate involved with his personal premarital property belonged to Tao's personal property.
4. Risk Alert
1. Because premarital property is easily mixed with post-marital property, it is recommended that both spouses find a professional lawyer to draw up an agreement or notarize premarital property. Agreement or notarization is not only conducive to protecting the legitimate rights and interests of both husband and wife, but also can become a reliable basis for resolving disputes in the future divorce, avoiding unnecessary disputes, so as not to further cause the relationship between husband and wife to turn into enemies.
2. In daily life, it is necessary to preserve evidence to prove the morphological transformation of personal premarital property in order to protect their premarital property. In real life, some people often have no legal awareness and cannot retain the evidence well. It is difficult to form a complete chain of evidence in litigation. At this time, it becomes difficult to provide evidence to protect their rights. During the existence of the marriage relationship, before converting the premarital property into other property, in order to ensure that the property conversion does not affect the properties of the premarital property, attention should be paid to the preservation of the corresponding evidence in the process of property conversion to prevent accidents.
Advice from 5. lawyers
1. Keep the pre-marital purchase contract and the pre-marital real estate sale contract, and you can go to the Housing Authority or the Real Estate Registration Center to obtain the internal files of the house.
2. Keep the transfer records of pre-marital house purchase, the transfer records of house sales and the transfer records of house purchase after marriage.
3. The pre-marital sale of the house is segregated from the property after marriage, and if there is a pre-marital account, the sale of the house will be transferred to the pre-marital account to prevent the mixing of the husband and wife's property.
4. The purchase of a house after marriage shall be transferred by transfer, and the personal property before marriage shall be noted to prevent the joint property of the husband and wife from being regarded as a gift from one party to the other.
Attached to relevant laws and regulations
1. Article 1063 of the the People's Republic of China Civil Code The following property shall be the personal property of one of the spouses:
Premarital property of the (I) party;
Compensation or compensation for personal injury suffered by the (II) party;
(III) property identified in a will or contract of gift as belonging only to one party;
Articles for daily use of the (IV) party;
(V) other property that should be vested in a party.
2. Article 31 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code Article 1063 of the Civil Code stipulates that the personal property of one of the spouses shall not be converted into the joint property of the spouses due to the continuation of the marriage relationship. Unless otherwise agreed by the parties.
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