Civil and commercial perspective... Whether the house registered in the name of the buyer after marriage belongs to the joint property of the husband and wife.
Published:
2023-07-18
Brief of the case
Zhang and Zhao got married in May 2018. After marriage, they had a very good relationship and gave birth to a son, Zhang Hua, in July 2019. Before marriage, Zhang paid all the money to buy a commercial house in the urban area. In July 2020, he obtained the real estate certificate, and Zhao also signed it when applying for the certificate, but the house was registered under the name of Zhang. For this reason, Zhao believes that although the property was purchased by Zhang in full before marriage, according to the provisions of Article 209 of the the People's Republic of China Civil Code and Article 1062 of the the People's Republic of China Civil Code, the property obtained the house ownership certificate after marriage, and gave birth to a son to Zhang after marriage, and the property should belong to the joint property of husband and wife.
Lawyer's opinion
1. The real estate in this case is the premarital property of one party in accordance with the provisions of Article 1063, paragraph 1, of the the People's Republic of China Civil Code to sign a purchase contract before marriage and pay the full amount of the purchase price.
Because the property is in the pre-marital Zhang signed a purchase contract, pay the full amount of purchase, although it is in the marriage to obtain the house ownership certificate, but the purchase behavior occurred before marriage, after marriage the act of issuing a certificate is the confirmation of the pre-marital property. Therefore, one party pays all the purchase price before marriage, and the real estate certificate is registered in the name of the investor. If the husband and wife do not make a special agreement on the real estate, it belongs to the personal property of the investor. The issuance of the real estate certificate is only the registration and confirmation of the ownership of the house, and the acquisition time of the real estate certificate does not affect the identification of the ownership of the house.
2. The real estate cannot be directly recognized as the joint property of husband and wife by applying the provisions of Articles 209 and 1062 of the the People's Republic of China Civil Code.
Zhao believes that under the commercial housing presale system, the developer sells the house to Zhang and applies for online signing for the record, and delivers it to Zhang for legal possession after completion and acceptance. The right holder registered for the first time is the developer, and the right holder can be truly confirmed after the property right certificate is obtained. Combined with the provisions of Article 1062 of the Civil Code, it is the joint property of husband and wife.
The author believes that Zhang signed a purchase contract before marriage and paid the full amount of the purchase, the purchase and sale contract confirmed that the creditor's rights belong to the personal property before marriage, after marriage is a kind of confirmation of the property before marriage, so the property does not belong to the joint property of husband and wife.
Lawyer Advice
1, if Zhao wants to own the ownership of the house, can be in accordance with the provisions of Article 1065 of the Civil Code to adopt the agreed property system.
The so-called "agreed property system" refers to the system in which the husband and wife or the person who is about to become a husband and wife agree on the property relationship between each other in the form of a contract, thus excluding the application of legal property. The agreed property system is relative to the legal property system, and the agreed property system takes precedence over the application of the legal property system.
2. It shall be agreed that the clause shall be irrevocable.
In judicial practice, some people will violate the agreement and advocate revocation. If the clause is irrevocable, it will limit the other party's right of revocation.
Legal Links
1. Article 1062 of the Civil Code The following property acquired by the husband and wife during the existence of the marriage relationship shall be the joint property of the husband and wife and shall be jointly owned by the husband and wife:
(I) wages, bonuses and remuneration for labor services;
Income from (II) production, operation and investment;
Proceeds from the (III) of intellectual property rights;
Property inherited or donated by the (IV), except as provided in Item 3 of Article 1063 of this Law;
(V) other property which shall be owned jointly.
Husband and wife have equal rights to dispose of common property.
2. Article 1063 of the Civil Code The following property is 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.
3. Article 1065 of the Civil Code: A man and a woman may agree that the property acquired during the marriage and the premarital property shall be owned by each other, jointly owned or partly owned by each other or partly jointly owned. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 1062 and 1063 of this Law shall apply.
The agreement between the husband and wife on the property acquired during the marriage and the pre-marital property shall be legally binding on both parties.
The husband and wife agree that the property acquired during the marriage shall be owned by each other, and the debts incurred by the husband or wife to the outside world shall be paid off with the personal property of the husband or wife if the relative knows the agreement.
4. Article 26 of the (I) for the Interpretation of Marriage and Family of the Civil Code stipulates that the income generated by the personal property of one of the spouses after marriage shall be recognized as the joint property of the husband and wife, in addition to fruits and natural appreciation. Generally speaking, the value-added of one party's pre-marital personal real estate after marriage is often caused by changes in the real estate market. There are no human factors such as the husband and wife investing in the real estate, labor, investment or management, so the value-added part of the real estate still belongs to one party. The personal property of the husband and wife cannot be divided as the joint property of the husband and wife.
5. Article 209 of the the People's Republic of China Civil Code: The establishment, alteration, transfer and elimination of real property rights shall be effective after registration in accordance with the law; without registration, it shall not be effective, unless otherwise provided by law.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
