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 can 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 the property according to the agreed proportions, 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 Supplement to Agreed 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 agreed marital property system which allows parties to exclude the application of the statutory marital property system through agreement, meaning that the 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 in the Property Ownership Certificate
Can the shares registered in the real estate ownership certificate be recognized as a marital property agreement? If recognized as such, the house should be divided according to the registered shares upon divorce; otherwise, it should not 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 in the real estate registry 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 and establishing credibility through registration. However, changes in property within marriage have an identity attribute. 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 personal property, which violates the basic principle of community property for property acquired after marriage.
Second, marital property agreements should be in written form.
When determining whether the shares registered 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 their intention to agree on property shares, such as whether they jointly filled out or submitted relevant proofs or declarations clearly stipulating 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.
It is also important to examine whether, after the real estate registration, the spouses have entered into a new property agreement that redefines the proportion of ownership in writing. If a new agreement exists, even without property rights transfer procedures, the agreement is legally binding on both parties and has the effect of changing property rights between spouses. In divorce, property division should follow 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 can request division at any time. If negotiation fails, methods such as price compensation, conversion division, etc., can be used. Four division methods are listed: direct division, price compensation, mixed division, and auction sale.
In practice, people's courts often rule that the house belongs to the party with the higher registered share and require payment of 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 who is the debtor's share should be distributed 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 genuine intention. Internal agreements between spouses that are not in writing and do not oppose creditors may be invalidated.
3. Dispute Resolution Path
(1) Judicial Review Focus
In practice, 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 genuine expression of intent, 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 ownership proportion should be consistent with actual contributions and ownership intentions and fixed in written form. Emphasize that marital property agreements must align with property system contract rules. Registration should be consistent with agreements 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 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 outcome
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 Supreme People's Court's Interpretation (I) on the Application of the Marriage and Family Chapter of the Civil Code further stipulates that in cases where the down payment was made with personal property before marriage and the mortgage was repaid jointly 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 the entire property should be divided according to the proportion on the property certificate, they must prove that the property was neither personal property before marriage nor subject to joint repayment after marriage. If evidence is insufficient and part of the property is recognized as joint property, the court will apply 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 Supreme People's Court's Interpretation (II) on the Application of the Marriage and Family Chapter of the Civil Code, the people's court shall determine the ownership of the house and, considering the purpose of the gift, comprehensively take into account factors such as joint life and raising common children, fault in divorce, contribution to the family, and the market price of the house at the time of divorce, to decide 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 that the shared immovable or movable property shall not be divided in order to maintain the co-ownership 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 for co-owners with family relationships, it shall be deemed as holding shares.
2. Supreme People's Court Interpretation (I) on the Application of the Property Chapter 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 claiming priority purchase rights under Article 305 of the Civil Code shall not be supported, except where there is a separate agreement among co-owners holding shares.
3. Supreme People's Court Interpretation (I) on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China
Article 78: If one spouse signs a real estate purchase contract before marriage, pays the down payment with personal property, and obtains 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 of 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 principles stipulated in Article 1087, Paragraph 1 of the Civil Code.
4. Supreme People's Court Interpretation (II) on the Application of the Marriage and Family Chapter 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 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 factors such as the duration of the marriage, joint life and raising common children, fault in divorce, contribution to the family, and the market price of the house at the time of divorce, to 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 party giving the house has no major fault, the people's court may, based on the parties' litigation requests, rule that the house belongs to the giving party. Considering the purpose of the gift, the court will comprehensively consider joint life and raising common children, fault in 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 giving party has evidence proving that the other party committed fraud, coercion, seriously infringed upon the legal rights and interests of the giving party or their close relatives, or failed to fulfill maintenance obligations, the people's court shall support the request to revoke the civil legal acts stipulated in the previous two paragraphs 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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