The civil and commercial perspective... How to determine the ownership of the house at the time of divorce.
Published:
2022-02-15
Briefing Li Jun (male) and Wang Yi (female) are both post-90s and will get married in 2019. Having a son in 2020, due to the low income of the couple after marriage, they are unable to buy real estate, and Li Jun's hometown is in the countryside, and their parents are unable to help them realize their housing dream. In October 2021, considering their children's schooling, Wang Yi's parents decided to pay a down payment for their only daughter, purchase a school district house, and register it in the names of both parties, and the couple will repay the loan on a monthly basis. In February 2022, Wang Yi believed that the relationship between husband and wife had broken down and wanted to sue the court for divorce, requesting to determine that the ownership of the house belonged to him. Wang Yi consulted the author: Will Wang Yi's claim be supported by the court? Lawyer Analysis Because Wang Yi sued for divorce after the Civil Code came into effect, the provisions of the Civil Code should be applied in this case. According to the relevant provisions of the the People's Republic of China Civil Code, the school district house was purchased by Li Jun and Wang Yi after their marriage and Wang Yi's parents made a down payment for both parties. Li Jun, Wang Yi and Wang Yi's parents did not sign any agreement on the ownership of the house, and Wang Yi had no evidence to prove that the house was a gift to one of them. Because the property is the property donated by Li Jun and Wang Yi during the marriage relationship, it should be recognized as the joint property of husband and wife. Simply put, if there is no agreement, the purchase of a house before marriage is the property of one individual, and the purchase of a house after marriage is the joint property of the husband and wife. In this case, although Wang Yi's mother believed that she had made a down payment to buy a school district house for her daughter, the house should belong to her daughter, and the other party could be compensated for the repayment. However, according to the the People's Republic of China Civil Code and judicial interpretation, the author believes that the law should be recognized as the joint property of husband and wife. Views of the People's Court of the Supreme Court In judicial practice, it often happens that parents pay part of the price (often the down payment) for the purchase of a house for their children after marriage, sign a contract for the sale of the house in the name of the child and register the ownership of the house in the name of one child or the children of both parties, if the two parties do not agree or the agreement is not clear, the down payment of the capital contribution shall be recognized as a gift to both husband and wife in accordance with the principle stipulated in paragraph 4 of Article 1062 of the the People's Republic of China Civil Code. Accordingly, the real estate purchased with the capital contribution as a down payment, whether registered in the name of one of the children or both, shall be regarded as the joint property of the husband and wife. Under normal circumstances, during the existence of the marriage relationship between the parties, one or both parents make a capital contribution to the purchase of a house for both parties, except for the case where the parents clearly indicate that the capital contribution is a gift to their children to purchase a house, according to the principle of the legal joint property system of husband and wife, it should be recognized as the joint property of husband and wife. When the people's court determines the ownership of property after marriage, the people's court shall first apply the legal principle of the joint system of marital income after marriage, that is, the property acquired by one or both of the husband and wife during the marriage relationship belongs to the joint property of the husband and wife. Secondly, it is determined whether it is owned by the husband or wife according to the exclusion. This is also the general principle of the treatment of property acquired by the couple during the marriage. Risk Alert First of all, sign an agreement to give their children and agree on the nature of the contribution. In recent years, the rising house prices to young couples to buy a huge pressure. When young couples buy a house, it is common for capable parents to help their children make up the down payment and for young couples to repay the loan together. In most cases, parents are often because of their feelings. When buying a house for their children, they will not clearly agree on the nature of their capital contribution, nor will they sign relevant agreements with their children. As a result, when their children divorce, the two parties will have a problem with the ownership of the house. Dispute over the issue. In order to prevent risks, the author suggests: when buying a house after marriage, if one of the parents contributes, it is best for the parents, children and children's spouse to sign a written agreement together, clearly agreeing on the nature of the contribution, whether it is a loan or a gift. If it is a loan, you need to agree on a repayment period and interest. If it is a gift, it is also necessary to agree whether it is a gift to one's own children or to both husband and wife. Otherwise, once a divorce occurs, it will be determined as the joint property of the husband and wife according to the provisions of the law and judicial interpretation. Secondly, when signing the agreement, we should pay attention to distinguish whether the parents' contribution is partial or full. The judicial interpretation of the original "the People's Republic of China Marriage Law" stipulates different attribution for the purchase of a house with partial capital contribution and full capital contribution by the parents, but the "Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Section of the the People's Republic of China Civil Code" does not clearly stipulate, and the author suggests that when signing an agreement, attention should also be paid to distinguish between full capital and partial capital contribution. Links to relevant laws 1. Article 29 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 before the parties get married, if the parents contribute to the purchase of houses for both parties, the contribution shall be recognized as a personal gift to their children, except where the parents explicitly indicate that the gift is given to both parties. After the parties get married, if the parents contribute to the purchase of houses for both parties, they shall be dealt with in accordance with the agreement; if there is no agreement or the agreement is not clear, it shall be dealt with in accordance with the principles stipulated in the fourth paragraph of Article 1062 of the Civil Code. 2. Article 1062 of the the People's Republic of China Civil Code stipulates that 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, remuneration for labor services; income from (II) production, operation and investment; income from the (III) of intellectual property rights; property inherited or donated by the (IV), except as provided for in paragraph 3 of Article 1063 of this Law; (V) other property that should be jointly owned. Husband and wife have equal rights to dispose of common property.
Briefing
Li Jun (male) and Wang Yi (female) are both post-90s and will get married in 2019. Having a son in 2020, due to the low income of the couple after marriage, they are unable to buy real estate, and Li Jun's hometown is in the countryside, and their parents are unable to help them realize their housing dream. In October 2021, considering their children's schooling, Wang Yi's parents decided to pay a down payment for their only daughter, purchase a school district house, and register it in the names of both parties, and the couple will repay the loan on a monthly basis. In February 2022, Wang Yi believed that the relationship between husband and wife had broken down and wanted to sue the court for divorce, requesting to determine that the ownership of the house belonged to him. Wang Yi consulted the author: Will Wang Yi's claim be supported by the court?
Lawyer Analysis
Because Wang Yi sued for divorce after the Civil Code came into effect, the provisions of the Civil Code should be applied in this case.
According to the relevant provisions of the the People's Republic of China Civil Code, the school district house was purchased by Li Jun and Wang Yi after their marriage and Wang Yi's parents made a down payment for both parties. Li Jun, Wang Yi and Wang Yi's parents did not sign any agreement on the ownership of the house, and Wang Yi had no evidence to prove that the house was a gift to one of them. Because the property is the property donated by Li Jun and Wang Yi during the marriage relationship, it should be recognized as the joint property of husband and wife.
Simply put, if there is no agreement, the purchase of a house before marriage is the property of one individual, and the purchase of a house after marriage is the joint property of the husband and wife. In this case, although Wang Yi's mother believed that she had made a down payment to buy a school district house for her daughter, the house should belong to her daughter, and the other party could be compensated for the repayment. However, according to the the People's Republic of China Civil Code and judicial interpretation, the author believes that the law should be recognized as the joint property of husband and wife.
Views of the People's Court of the Supreme Court
In judicial practice, it often happens that parents pay part of the price (often the down payment) for the purchase of a house for their children after marriage, sign a contract for the sale of the house in the name of the child and register the ownership of the house in the name of one child or the children of both parties, if the two parties do not agree or the agreement is not clear, the down payment of the capital contribution shall be recognized as a gift to both husband and wife in accordance with the principle stipulated in paragraph 4 of Article 1062 of the the People's Republic of China Civil Code. Accordingly, the real estate purchased with the capital contribution as a down payment, whether registered in the name of one of the children or both, shall be regarded as the joint property of the husband and wife.
Under normal circumstances, during the existence of the marriage relationship between the parties, one or both parents make a capital contribution to the purchase of a house for both parties, except for the case where the parents clearly indicate that the capital contribution is a gift to their children to purchase a house, according to the principle of the legal joint property system of husband and wife, it should be recognized as the joint property of husband and wife. When the people's court determines the ownership of property after marriage, the people's court shall first apply the legal principle of the joint system of marital income after marriage, that is, the property acquired by one or both of the husband and wife during the marriage relationship belongs to the joint property of the husband and wife. Secondly, it is determined whether it is owned by the husband or wife according to the exclusion. This is also the general principle of the treatment of property acquired by the couple during the marriage.
Risk Alert
First of all, sign an agreement to give their children and agree on the nature of the contribution.
In recent years, the rising house prices to young couples to buy a huge pressure. When young couples buy a house, it is common for capable parents to help their children make up the down payment and for young couples to repay the loan together. In most cases, parents are often because of their feelings. When buying a house for their children, they will not clearly agree on the nature of their capital contribution, nor will they sign relevant agreements with their children. As a result, when their children divorce, the two parties will have a problem with the ownership of the house. Dispute over the issue.
In order to prevent risks, the author suggests: when buying a house after marriage, if one of the parents contributes, it is best for the parents, children and children's spouse to sign a written agreement together, clearly agreeing on the nature of the contribution, whether it is a loan or a gift. If it is a loan, you need to agree on a repayment period and interest. If it is a gift, it is also necessary to agree whether it is a gift to one's own children or to both husband and wife. Otherwise, once a divorce occurs, it will be determined as the joint property of the husband and wife according to the provisions of the law and judicial interpretation.
Secondly, when signing the agreement, we should pay attention to distinguish whether the parents' contribution is partial or full.
The judicial interpretation of the original "the People's Republic of China Marriage Law" stipulates different attribution for the purchase of a house with partial capital contribution and full capital contribution by the parents, but the "Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Section of the the People's Republic of China Civil Code" does not clearly stipulate, and the author suggests that when signing an agreement, attention should also be paid to distinguish between full capital and partial capital contribution.
Links to relevant laws
1. Article 29 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 before the parties get married, if the parents contribute to the purchase of houses for both parties, the contribution shall be recognized as a personal gift to their children, except where the parents explicitly indicate that the gift is given to both parties. After the parties get married, if the parents contribute to the purchase of houses for both parties, they shall be dealt with in accordance with the agreement; if there is no agreement or the agreement is not clear, it shall be dealt with in accordance with the principles stipulated in the fourth paragraph of Article 1062 of the Civil Code.
2. Article 1062 of the the People's Republic of China Civil Code stipulates that 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, remuneration for labor services; income from (II) production, operation and investment; income from the (III) of intellectual property rights; property inherited or donated by the (IV), except as provided for in paragraph 3 of Article 1063 of this Law; (V) other property that should be jointly owned.
Husband and wife have equal rights to dispose of common property.
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