Civil and Commercial Perspective | The real estate ownership certificate records the shares of co-ownership. How to divide them during divorce
Published:
2025-08-29
In reality, many couples register property ownership as joint tenancy with specified shares clearly recorded in the real estate ownership certificate. So, can the house be divided directly according to the registered shares upon divorce? According to Article 303 of the Civil Code of the People's Republic of China, co-owners may divide the property according to the agreed proportions. However, if there are disputes regarding marital property agreements, contribution ratios, or the authenticity of the co-ownership relationship, a comprehensive judgment must be made based on written agreements, actual contributions, and judicial review results.
In reality, many couples register property ownership as joint tenancy with specified shares clearly recorded in the real estate ownership certificate. So, can the house be divided directly according to the registered shares upon divorce? According to Article 303 of the Civil Code of the People's Republic of China, co-owners can divide according to the agreed proportion, but if there are disputes involving marital property agreements, contribution ratios, or the authenticity of the co-ownership relationship, a comprehensive judgment must be made based on written agreements, actual contributions, and judicial review results.
1. Statutory Principles of Marital Property and Supplementary Agreement Property System
(1) Theoretical Basis
China's statutory marital property system is the community property system for property acquired after marriage, meaning that property obtained during the marriage is generally considered joint marital property. Both spouses can generally share all property acquired after marriage, especially in divorce situations where the property acquired after marriage is usually divided equally. At the same time, Chinese legislation also provides for the marital property agreement system , allowing parties to exclude the application of the statutory marital property system through agreement, i.e., spouses can agree that property acquired during the marriage and property owned before marriage belong to each spouse individually, jointly, or partially individually and partially jointly.
(2) Legal Nature of the Shares Recorded on the Property Ownership Certificate
Can the shares registered in the real estate ownership certificate be recognized as a marital property agreement? If recognized as a marital property agreement, the house should be divided according to the registered shares upon divorce; otherwise, it cannot be divided according to the registered shares. We believe the following aspects should be considered:
First, real estate registration is an important aspect of publicity of property rights.
The registration on the real estate register should be characterized as a presumption of property rights. The property status reflected is not final, definitive, or irrefutable. Its significance lies in publicly disclosing ownership status through registration and establishing credibility. However, changes in property within marriage have identity attributes. The change of real estate property rights between spouses should not overly emphasize registration publicity and should not be the sole basis for identifying marital property rights. It is inappropriate to deny the nature of joint property simply because it is registered under one party's name, as this could lead to extremes, such as recognizing property acquired during marriage but registered only under one spouse's name as individual property, which violates the basic principle of community property acquired after marriage.
Second, marital property agreements should be in written form.
When determining whether the share registration in the property ownership certificate can be recognized as a marital property agreement, attention should be paid to whether both spouses jointly signed written materials expressing the intention of property agreement, such as whether they jointly filled out or submitted relevant proofs or declarations clearly agreeing on the property shares during the real estate registration process. If there is no agreement or the agreement is unclear, the property should not be divided solely according to the shares recorded in the real estate ownership certificate.
Finally, spouses can modify previous agreements by signing new agreements.
Attention should also be paid to whether, after the real estate registration, the spouses have entered into a new property agreement that redefines the proportion of co-ownership in writing. If there is a new agreement, even without property rights change procedures, the agreement is legally binding on both parties and has the effect of changing property rights between spouses. In divorce, division should be based on the new agreement rather than the shares recorded in the real estate ownership certificate.
2. Distribution Rules and Methods
(1) Legally Clear Distribution Principles
According to Article 303 of the Civil Code of the People's Republic of China, co-owners with shares can request division at any time. If negotiation fails, methods such as price compensation or conversion to cash division can be used. Four division methods are listed: direct division, price compensation, mixed division, and auction for cash.
In practice, people's courts often rule that the house belongs to the party with a higher registered share and require payment of price compensation, reflecting the practical logic of proportional distribution.
(2) Adjustment Rules in Special Circumstances
Priority in Debt Repayment: When joint debts are involved, the debtor's share should be used first to repay creditors to avoid harming third-party interests. For example, the spouse's (debtor's) share should be allocated first to maximize repayment of joint debts.
Special Nature of Marital Property Agreements: Property agreements between spouses may constitute property system contracts or gifts, requiring examination of written form and true intention. Internal agreements between spouses may be invalid if not in writing and not enforceable against creditors.
3. Dispute Resolution Path
(1) Judicial Review Key Points
In practice, people's courts focus on the authenticity, background of contract formation, and performance when reviewing marital property agreements. If one party claims the agreement is not a true expression of intention, the court judges the validity by examining the motivation and timing of the contract.
(2) Enforcement and Remedies
According to Article 47 of the "Urban Real Estate Mortgage Management Measures (2021 Revision)", proceeds from disposing of jointly owned property must be used to repay debts in order. Sometimes courts dismiss lawsuits citing clear registered shares and require administrative litigation to resolve registration disputes. Objections to property distribution plans can be litigated.
4. Risk Prevention Suggestions
(1) Clear Written Agreements
The co-ownership ratio should be consistent with actual contributions and ownership intentions and fixed in written form. Emphasize that marital property agreements must be consistent with property system contract rules. Registration and agreement should be consistent to avoid interpretive disputes caused by discrepancies between registered proportions and actual agreements.
(2) Retain Proof of Contributions
Proof of contributions is key supplementary evidence for determining co-ownership shares, especially when agreements are unclear. If shares are not agreed upon, they should be determined according to contribution proportions.
(3) The nature of the property directly affects the division result
Article 1062 of the Civil Code of the People's Republic of China clearly states that property acquired by spouses during the marriage is joint property. Article 78 of the "Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Part of the Civil Code of the People's Republic of China" further stipulates that in cases where the down payment is paid with personal property before marriage and the mortgage is jointly repaid after marriage, the division and ownership of the property must be determined based on the specific source of repayment and the appreciation portion. If one party claims that the property should be divided entirely according to the proportion on the property certificate, they must prove that the property is neither personal property before marriage nor subject to joint repayment after marriage. If insufficient evidence leads to part of the property being recognized as joint property, the court will divide it according to the principles of joint property division, which may affect the share obtained. In divorce litigation, regarding the division of the house given to the spouses, according to Article 5 of the "Interpretation (II) of the Supreme People's Court on the Application of the Marriage and Family Part of the Civil Code of the People's Republic of China," the people's court shall rule on the ownership of the house and, considering the purpose of the gift, comprehensively take into account the duration of cohabitation and raising common children, fault in the divorce, contribution to the family, and the market price of the house at the time of divorce, to determine whether the party who obtains the house should compensate the other party and the specific amount of compensation.
Laws and Regulations
1. Civil Code of the People's Republic of China
Article 303 If co-owners agree not to divide the shared immovable or movable property to maintain the shared relationship, the agreement shall be followed. However, if a co-owner has a significant reason to request division, they may do so. If there is no agreement or the agreement is unclear, co-owners holding shares may request division at any time. Joint co-owners may request division when the basis of co-ownership is lost or there is a significant reason. Compensation shall be made for damages caused to other co-owners due to division.
Article 308 If co-owners have not agreed that the shared immovable or movable property is held as shares or jointly, or if the agreement is unclear, except when co-owners have family relationships or the like, it shall be deemed as holding shares.
2. "Interpretation (I) of the Supreme People's Court on the Application of the Property Part of the Civil Code of the People's Republic of China"
Article 13 When co-owners holding shares transfer their shared shares, other co-owners holding shares who claim priority purchase rights under Article 305 of the Civil Code shall not be supported, except where there is a separate agreement between the co-owners holding shares.
3. "Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Part of the Civil Code of the People's Republic of China"
Article 78 If one spouse signs a real estate sales contract before marriage, pays the down payment with personal property, and takes out a bank loan, and the mortgage is repaid with joint marital property after marriage, and the real estate is registered under the name of the party who paid the down payment, the property shall be handled by agreement between both parties upon divorce.
If no agreement can be reached according to the preceding paragraph, the people's court may rule that the property belongs to the registered party, and the unpaid loan shall be the personal debt of the registered party. The payments made jointly after marriage and the corresponding appreciation of the property shall be compensated by the registered party to the other party upon divorce according to the principle stipulated in Article 1087, Paragraph 1 of the Civil Code.
4. "Interpretation (II) of the Supreme People's Court on the Application of the Marriage and Family Part of the Civil Code of the People's Republic of China"
Article 5 If, before or during the marriage, the parties agree to transfer the registration of a house owned by one party to the other party or both parties, and during divorce litigation the ownership of the house has not yet been transferred, and there is a dispute over the ownership or division of the house that cannot be resolved through negotiation, the people's court may, based on the parties' litigation requests and the purpose of the gift, comprehensively consider the duration of the marriage, cohabitation and raising common children, fault in the divorce, contribution to the family, and the market price of the house at the time of divorce, and rule that the house belongs to one party, and determine whether the party who obtains the house should compensate the other party and the specific amount of compensation.
If, before or during the marriage, one party transfers the registration of a house owned by them to the other party or both parties, and during divorce litigation there is a dispute over the ownership or division of the house that cannot be resolved through negotiation, if the marriage duration is short and the giver has no major fault, the people's court may, based on the parties' litigation requests, rule that the house belongs to the giver, and considering the purpose of the gift, comprehensively take into account cohabitation and raising common children, fault in the divorce, contribution to the family, and the market price of the house at the time of divorce, to determine whether the party who obtains the house should compensate the other party and the specific amount of compensation.
If the giver has evidence proving that the other party committed fraud, coercion, seriously infringed upon the legal rights and interests of the giver or their close relatives, or has an obligation to support the giver but fails to perform it, and requests the revocation of the civil legal acts stipulated in the previous two paragraphs, the people's court shall support it according to law.
(Statement: This article is the author's summary based on experience and is for communication and discussion only)
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