Ningbo real estate certificate agreed share divorce how to divide

After getting married, Ms. Zhang and her husband purchased a commercial residential property. The property title is registered as joint ownership in shares, with Ms. Zhang holding a 30% share and her husband holding a 70% share. During the divorce, the husband argued that the property should be divided according to the shares registered on the property deed; Ms. Zhang, however, maintained that since they had jointly repaid the mortgage after marriage, she should receive a larger share. The two parties are in dispute over the proportion of the property to be divided. First, let's give a conclusion: if the real estate certificate clearly stipulates that the shares shall be shared, the divorce shall be divided according to the registered shares in principle; However, the registered share is not absolute-if one party can prove that the registered share is inconsistent with the actual capital contribution and true agreement, or there are fraud, coercion, obvious unfairness, etc., the court can re-identify it. At the same time, the joint repayment of loans after marriage and the corresponding value-added part belong to husband and wife property, and must be calculated separately. This paper combines the relevant provisions of the the People's Republic of China Civil Code (hereinafter referred to as the Civil Code) with the local judgment of Ningbo to dismantle the rules and exceptions of share division.

1. Legal Basis: Effect of Registration for Joint Ownership in Shares

deal with the issue of the agreed share of the real estate certificate, based on four norms. Article 297 of the Civil Code: “Real property or personal property may be jointly owned by two or more organizations or individuals.” Shared includes shared and shared. "Article 309 stipulates that the share of the common owner in the common real estate shall be in accordance with the agreement; if there is no agreement or the agreement is not clear, it shall be determined in accordance with the amount of capital contribution; if the amount of capital contribution cannot be determined, it shall be deemed to be enjoyed in equal amount. Article 1065 The husband and wife are allowed to agree in writing that the property (including the share of the property) in marriage shall be owned by each other or shall be jointly owned by each other. Article 1,087 sets forth the general principle for property division upon divorce: agreements shall prevail; in the absence of an agreement, the court shall make a judgment in accordance with the principle of safeguarding the interests of the children, the female party, and the party at no fault. String the four clauses together: the registration of the real estate certificate "30%:70% by share" is the written agreement and publicity of the shares by both parties, and this shall prevail in principle when divorce is divided, which is the result of respecting autonomy of will and publicity of real rights; However, the "principle of care" in article 1087 is only applicable to the division of common property where "agreement fails", and for the common property with a clear share agreement, in principle, the court deals with the agreed share, and the factor of care is mainly reflected in the adjustment of other common property.

Presumptive effect and revocable circumstances of 2. registration share

The share ratio stated in the real estate certificate is legally presumed to be the true intention of both parties, which has strong probative force, but it is not irrevocable. There are four main types of circumstances that can be overturned: first, if the registered share does not conform to the true agreement-if the two parties have a private written property agreement on different proportions, the agreement takes precedence (Article 1065 of the Civil Code clearly stipulates that it should be in writing), and may request re-determination according to the agreement, the registered share is seriously deviated from the actual contribution and the registration is a misunderstanding of the agency-if the purchase is registered according to "who pays how much money to write how much proportion", but one party's contribution actually comes from the joint property of the husband and wife (e.g. joint deposit after marriage), the registration proportion may be adjusted; Third, there are fraud, coercion and major misunderstanding-if one party uses the other party's illiteracy and illness to register shares, the aggrieved party may request revocation or change in accordance with the law; fourthly, if the agreement on the share after marriage is added to the name and the agreement on the share is generally valid, but if the addition is a conditional gift (for the purpose of maintaining the marriage) and the conditions are not fulfilled, or there are revocable circumstances, the adjustment may be claimed in accordance with the law. The party claiming to overturn the registered share shall bear the burden of proof: to provide written agreements, transfer records, chat records, audio recordings, etc. to prove the true meaning or source of capital contribution, and it is difficult to shake the publicity effect of the register by oral statements alone.

3. Joint Repayment and Appreciation Portion: Separate Accounting Beyond Proportional Division

The real estate certificate stipulates that it is shared by shares, which solves the distribution of "ownership share of the real estate"; joint repayment of the loan after marriage and its corresponding value-added are another common property that needs independent accounting. Even if the registered share is 30%:70%, if both parties repay the loan with common income after marriage, the repayment fund comes from the common property of the husband and wife, and the principal and interest of the loan and the corresponding housing appreciation part belong to the common property of the husband and wife, which should be handled according to the common property rules when dividing-you cannot simply enjoy 70% of the personal rights and interests corresponding to the appreciation of the loan repayment with 70% of the real estate share ". In the "case statement" of the Ningbo Intermediate Court, the compensation caliber given by the judge of the Beilun Court is "value-added index x (joint repayment of the loan ÷ 2)", that is, the overall value-added index of the house is calculated first, multiplied by half of the principal and interest of the joint repayment of the loan, as a reference for the compensation of the unregistered share party. In practice, the processing path is "two steps": the first step is to divide the ownership of the house according to the registered share; the second step is to settle the compensation for the joint repayment of principal and interest and the corresponding value-added part after marriage, and the compensation amount is determined with reference to the source of the repayment funds (personal property or common property) and the value-added situation. If the registered share itself already reflects the adjustment of the repayment contribution (e. g. the repayment contribution has been discounted and stated in writing when the share is agreed upon), the calculation will not be repeated.

Breakdown of 4. situations: division of different common states and contribution structure

According to the common state and capital contribution structure, five cases can be split. First, the joint contribution and registration within marriage shall be shared: the registered share shall prevail, unless there is evidence to the contrary, the joint repayment of the loan after marriage shall be accounted for separately according to the aforementioned rules. Second, one party contributes capital before marriage, adds name after marriage and shares are shared: the act of adding name turns the house into common property, and the share is determined according to registration; however, the court may take into account the duration of the marriage, contribution, fault and other factors, and fine-tune the proportion of registration on the basis of the share, not mechanically. Third, the purchase price actually comes from one party's premarital personal property, but the registration is written as a share: the investor may claim that the registration ratio is filled in by mistake when registering on behalf of the agent, and request to confirm the right according to the proportion of capital contribution or the full amount, and it is necessary to fully prove the source of capital contribution (premarital account flow, closed capital circulation record). Fourth, the relationship between parental capital contribution and share registration: according to article 29 of the (I) of the Supreme People's Court on the Interpretation of the Application of the Marriage and Family Code of the the People's Republic of China Civil Code, the pre-marital capital contribution is in principle recognized as a gift to one's own children. The post-marital capital contribution does not clearly indicate that both parties to the gift shall be treated as a gift to the children-if the registered share does not reflect the nature of the capital contribution, the investor's contribution, the child may claim for adjustment. Fifth, registered as a common (no share): the rule of share does not apply, the divorce is divided equally in principle, and then adjusted according to the principle of taking care of the children, the woman, the no-fault party and the contribution of the contribution.

5. deduction case: the party registered 70% may not get 70%

When a couple in Ningbo bought a house after marriage, the down payment of 800000 yuan was 500000 yuan contributed by the parents of the man (the object of the donation was not specified in writing), and the balance was loaned in the joint name of the couple. The registration of the property ownership certificate was 70% for the man and 30% for the woman. After marriage, the two parties jointly repay the loan for 8 years, and the woman suspended her work for two years after giving birth and assumed the main responsibility for childcare. At the time of divorce, the man claimed to be divided according to the 70% share, while the woman claimed that the registration ratio did not reflect the nature of the parents' contribution and the contribution to the repayment of the loan. The court held that the contribution of 500000 yuan from the man's parents was recognized as a gift to the man's individual according to Article 29 of the (I) of Interpretation, and the corresponding real estate rights and interests of this part should be excluded from the joint ownership and treated as the man's individual contribution. Joint loan repayment and value-added after marriage shall be treated as common property; In combination with the woman's more family obligations and taking care of her rights and interests during divorce, the court did not mechanically handle 70%:30%, instead, it is appropriately tilted towards the woman after comprehensive conversion. This example illustrates that the registered share is a starting point rather than an end point, and that the source of contribution, repayment contribution and statutory care factors may all change the final distribution.

6. Common misconceptions and correct answers

Misunderstanding 1: The number of shares written in the real estate certificate will be divided according to the number of points, and the court will not adjust it. Correct Solution: The registered share is an important basis, but the court can re-determine the share when there are situations such as the inconsistency of the true agreement, serious deviation of capital contribution, fraudulent coercion, and obvious unfairness.

Misunderstanding 2: If there is no agreement, the share must be shared and divided equally. positive solution: if there is no written agreement, the share shall be determined according to the amount of contribution, and if the amount of contribution cannot be determined, it shall be regarded as the same amount; if it is jointly shared, the average division is the principle, but it can be adjusted according to the principle of caring for children, the woman and the no-fault party and the contribution.

Misunderstanding 3: After marriage, the agreed share is a gift, and we must not go back on our word. Correct solution: The agreement on adding names and shares is generally valid, but it can be revoked or adjusted according to law if it involves conditional gifts, fraudulent coercion, obvious unfairness and other situations; the source of capital contribution and actual contribution will also affect the final treatment.

Misunderstanding 4: Divide by share, so you don't have to worry about repaying the loan after marriage. positive solution: after marriage, the joint repayment of principal and interest and the corresponding value-added are the joint property of husband and wife, which must be compensated separately in addition to the division by share, and the registered share cannot "swallow" the contribution of repayment.

Misunderstanding 5: As long as the share of parents' contribution is written, it will go to their children according to the share. positive solution: the nature of capital contribution by parents is judged according to legal provisions and evidence (capital contribution before marriage belongs to individual children in principle). if the registered share does not reflect the nature of capital contribution, it can be claimed to be converted again according to capital contribution, which cannot be taken for granted.

7. List of Materials and Operating Procedures

In case of disputes involving the share of property ownership certificate, it is suggested to prepare the following materials and deal with them step by step:

1. Ownership documents: real estate certificate, real estate registration book, house purchase contract, online sign and record information, and check the common way (by share/common) and the proportion of shares;
2. Evidence of capital contribution: records of down payment transfer, loan contract, loan repayment flow, distinguish personal property before marriage, joint property after marriage and capital contribution of parents, and keep transfer notes and written explanation of capital contribution of parents;
3. Evidence of true agreement: marital property agreement, share agreement documents, relevant chat records and recordings, which are used to prove that the registered share is inconsistent with the true meaning;
4. Value evaluation: the present value of the house is evaluated or the transaction price is referenced, and the joint repayment after marriage and the corresponding value-added part are calculated;
5. Negotiation and litigation: go to the real estate registration agency to handle the registration of share change or transfer through negotiation; if the negotiation fails, sue to the court, request to divide according to the registered share or actual contribution, and simultaneously claim the compensation of loan repayment and appreciation.

8. Post-division arrangements: tax and fee handling, loan coordination, and registration procedures

After the court judgment or agreement has determined the division plan, three sets of coordination issues still need to be addressed before the transfer can be finalized. First, taxes and fees: couples divorce property transfer registration, according to the current tax policy generally do not levy deed tax and personal income tax (divorce property does not belong to taxable transactions, specific to the local tax authorities); However, if one party "buys" the other party's share at an obvious consideration and the operation form is close to the transaction, the tax authorities may levy taxes and fees according to the transaction processing-go to the tax window to confirm the business characterization before handling, avoid paying more taxes by turning "product analysis" into "buying and selling. Second, loans: if there is a mortgage on a shared property, the change of shares or the withdrawal of one party must first be linked with the bank-the transfer of ownership after the mortgage is released in advance, or the borrower and mortgagor can be changed with the consent of the bank; If the bank does not agree to the change, it may agree in the division plan that the continuing holder shall bear the remaining debts and continue to repay the loan, and the transfer shall be handled after the loan is paid. Third, the registration procedure: the two parties who have reached a consensus jointly apply to the real estate registration agency for the registration of share change or transfer registration; In accordance with the judgment or mediation statement, the court shall issue a notice of assistance to the registration agency to force the transfer of ownership by applying unilaterally with the legal document in force, and the other party refuses to cooperate with the enforcement procedure. Before processing, retrieve the most recent real estate registration record to confirm there are no encumbrances such as seizures or mortgages, and verify whether the property is subject to policy-based housing restrictions. Once all required documents are complete, the application will be processed and concluded in a single visit, eliminating the need for multiple trips to supplement documentation.

Class Case Reference: In the property dispute case after the divorce between Zou and Ma, the shared real estate (80% for the plaintiff and 20% for the defendant) that was not actually divided by both parties during the divorce, the court approved the actual division after the divorce, sentenced the house to be owned by the plaintiff, and the plaintiff paid the defendant 20% of the consideration 255760 yuan according to the assessed value. It can be seen that if the real estate certificate is agreed to be shared, the divorce division shall be handled in principle according to the registered share; one party may claim discount compensation according to the share. Trial Court: Cixi City People's Court, Zhejiang Province Case No.:(2017) Zhejiang 02

82Minchu No. 13066

9. Frequently Asked Questions

The real estate certificate is written at 30% and 70%. Does divorce have to be divided according to this proportion?

In principle, it is divided according to the registered share; but if it can prove that the registration is inconsistent with the real agreement, the capital contribution deviates seriously or there is fraud and coercion, the court can be requested to reconfirm; the joint repayment and value-added part after marriage need to be separately accounted.

How does the party with 30% registered share claim the part of joint repayment after marriage?

If the loan repayment fund comes from common property, the principal and interest of the loan repayment and the corresponding value-added belong to common property, and the compensation can be claimed by referring to the caliber of "value-added index × (common loan repayment ÷ 2)", which will not be lost due to the low registered share.

The real estate certificate has registered the wrong share, how to correct it?

Negotiate first, and both parties agree to go to the real estate registration agency to handle the correction registration or share change registration together; if the other party does not agree, collect the evidence (written agreement, capital contribution record, etc.) to prove the true share agreement and sue to the court to confirm the share.

How to divide the property of one party before and after marriage by adding its name and sharing it according to its share?

add a name to make the house into common property, and the share shall be subject to registration; the court may make appropriate adjustments on the basis of the share in combination with factors such as the duration of marriage, contribution of capital, child support, etc. Usually, the adding party's claim of full ownership is not supported.

The property certificate is registered as joint ownership with no specified shares—how should it be divided?

Treat as common property, divide equally in principle, and then adjust appropriately according to the principle of taking care of the rights and interests of children, the woman and the no-fault party, the contribution of capital and the situation of loan repayment. One party can take the way of taking the house to make up the difference or auction the sale price.

10. Practical Legal Insights

The property ownership certificate states that it is shared by shares, such as 30% for one party and 70% for one party. Many people think that divorce must be divided according to this proportion. This is true in principle, and the registration of a share is a written agreement between the parties on the share, as well as a public announcement, which is usually respected by the court. However, this is not absolute: if one party can produce written property agreements, transfer records and other materials to prove that the registered share is seriously inconsistent with the true agreement or the actual contribution, or that there is fraud, coercion or major misunderstanding at the time of registration, the share may be re-identified. So don't rush to accept your fate, first see if there is room to overturn the registration.

There is another point that is often overlooked: the share of real estate ownership is resolved by share division, and the joint repayment of loans after marriage and the corresponding value-added are another account, which should be accounted for separately in addition to the share. Where the mortgage is repaid using joint income and the renovation is jointly funded, even if the property is registered as tenancy in common, the corresponding shares and any appreciation in value may still be treated as marital property, with the party holding the larger share compensating the other. To advocate this part, we need to sort out the materials such as repayment flow, loan contract, repayment starting and ending time and decoration expenses, so as to calculate how much we have repaid together and how much value-added we have added.

When it comes to operation, do two things first: organize your own investment, loan repayment and decoration vouchers into a time line; then check whether there is any written agreement inconsistent with the registered share. During negotiations, it’s often easier to reach an agreement by discussing the division of assets and the compensation for joint loan repayments separately, rather than trying to settle on a single overall percentage. After the attribution is determined, it is also necessary to consider the connection between transfer, loan settlement, tax and fee bearing and registration, and agree who will bear it and within what period of time, otherwise it is easy to regenerate disputes at the implementation stage. The party seeking to overturn the registered ownership interests must remember that the burden of proof rests with them; mere verbal assertions are unlikely to suffice to challenge the register.

The agreed share of the real estate certificate is an important basis for divorce division, but it is by no means the only basis. Understanding the four sentences of "registration by share, joint repayment and separate accounting, source of capital contribution can be corrected, and legal care is the bottom line" can grasp the main line of such cases. In practice, it is suggested that the source of capital contribution and the meaning of share should be fixed in written form when purchasing a house and registering. After marriage, the written agreement on the synchronous update of the name and share change; Before divorce, sort out the three groups of data of capital contribution, loan repayment and value-added, and handle the registration change in time if negotiation fails, and enter the lawsuit with complete evidence if negotiation fails.