How to divide the only real estate in Ningbo divorce
Xiao Zhang and Xiao Li have been married for eight years. After their marriage, they bought a two-bedroom apartment in the urban area of Ningbo with a loan. Now they are ready for divorce when their relationship breaks down, but there is only one apartment in their family. Both of them are worried that they will have no place to live after the divorce. Scenarios like this are very common in divorce litigation. The conclusion starts with the following: if the husband and wife have only one set of common property when they divorce, the court will usually decide that the house is owned by one party and the owner will pay financial compensation to the other party; If both parties are unable to compensate and are difficult to live separately, and their feelings have not completely broken down, they may not be sentenced to divorce temporarily. If the relationship has indeed broken down, it may be decided that the house is shared and a definite share shall be used by one party. The law requires that, upon division of property, the needs of child custody and housing security must be taken into account; it is not permissible to simply leave one party “out on the street.”
1. Legal Basis: Article 1087 of the Civil Code and its accompanying rules
Article 1087 of the the People's Republic of China Civil Code stipulates: "At the time of divorce, the common property of husband and wife shall be dealt with by mutual agreement; if the agreement fails, the people's court shall make a judgment according to the specific situation of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman and the innocent party. "This is the only general outline of housing division-first negotiate, if the negotiation fails, the court will decide, and priority will be given to children and housing security. Article 78 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 the treatment of pre-marital down payment and joint repayment of loans after marriage: the house shall be owned by one party in the property right registration, and the joint repayment and corresponding value-added part after marriage shall be compensated by the property right party to the other party; The common caliber of compensation calculation practice is "joint repayment of principal and interest ÷ 2 × (present value of housing ÷ purchase cost)", ningbo Court according to the "value-added index x (joint repayment of loans ÷ 2)" (according to the Ningbo Intermediate Court "to the case" disclosed by the Beilun Court judge caliber).
The housing security at the execution level also has its basis: for the residential houses necessary for the life of the executed person and his dependent family members, the people's court will guarantee the basic housing needs according to law during the execution. Before the owner of the house pays the compensation, the court will not simply force the house to vacate-the execution stage must also review whether the compensation has been paid in place.
2. Scenario breakdown: Five handling options for the only residence
Option 1: One party gets the house, and the other receives a cash settlement (most common). If one party has strong economic ability and can settle the residence or pay compensation on its own, the court decides that the house belongs to the party and pays the other party a discount according to the assessed value. The ability to obtain housing and the ability to compensate are the primary factors considered by the court.
Option 2: The mortgaged property shall be awarded to the party holding the mortgage loan. If the mortgage loan is purchased in the name of one party, it is generally decided that the lender should acquire the house and assume the remaining loan, and pay compensation to the other party at the same time; the change of the lender must be approved by the bank and other mortgagee. In the case of property dispute between Xu Mou and Chen Mou after divorce in Ningbo Zhenhai Court, the property under the names of both parties was awarded to the plaintiff and the plaintiff paid a discount of 744362.67 yuan, which was the typical treatment of the owner's assumption of debts and payment of discount.
Scheme 3: Both parties are unable to compensate-temporarily not to leave or share the house. If both parties are unable to pay the discount and it is difficult to live separately, if the relationship has not completely broken down, the court may decide not to divorce and give both parties a cooling-off period; if the relationship has indeed broken down, the court may decide that the house shall be shared by both parties and confirm the share. At the same time, it is clear that one party will live and use it, pay the other party's usage fee, and divide it when the conditions are ripe (such children).
Scheme 4: Bidding and Auction Price Change. If both parties want the property and are capable of providing compensation, the property may be awarded to the highest bidder through an auction; if neither party wants the property, they may agree to sell it and divide the proceeds, or have the court auction it and distribute the proceeds accordingly. In the case of property dispute between Chen Moumou and Xiang Moumou after divorce in Ninghai Court ((2011) Yong Ning Min Chu Zi No. 1335), the plaintiff got 235000 yuan and the defendant got 285000 yuan after the auction of the undivided house at the time of divorce, which is the distribution path of variable price.
Scheme 5: Donate children or establish the right of residence. Both parties negotiate to donate the house to the minor children, retain the right of residence, or guarantee the residence of one party by establishing the right of residence, which are all common alternative arrangements in mediation, and can take into account the interests of children and the stability of residence.
3. Considerations for the division of a sole residence
Courts deal with sole housing, usually combining five categories of factors:1. Property-- it must be the joint property of husband and wife (such as joint purchase after marriage, down payment before marriage and joint loan repayment after marriage, name addition, etc.), and the full house of one party before marriage does not belong to the scope of divisible joint property;2. Child support—The residential needs of the parent with primary custody shall take priority; children must not be left without a stable place to live.3. Residence demand and income of both parties—Who needs the housing more and who has the financial capacity to provide compensation are the key variables in determining ownership and compensation.4. Contribution and loan repayment contribution-- the proportion of down payment before marriage and the amount of joint loan repayment after marriage affect the calculation of compensation amount;5. Fault and Consideration Factors-The principle of taking care of children, the rights and interests of women and the innocent party are reflected in the proportional discretion. What needs to be made clear is that "sole housing" is not a reason for "indivisibility"-as long as it is indeed common property, the court can still divide it according to law, but the division method should take into account the housing security, especially to prevent one party (especially the direct child-raising party) from having no fixed residence after divorce.
4. Common Misunderstandings and Positive Solutions
Misunderstanding 1: The only housing court cannot judge division. positive solution: as long as it is the joint property of husband and wife, the court can still divide it according to law, taking into account the housing security (housing + compensation, co-ownership + use fee, variable price distribution, etc.).
Misunderstanding 2: The house belongs to whoever has the name of the house property certificate. Positive explanation: the houses purchased or repaid jointly after marriage belong to the common property, and the registration is just publicity; if the down payment before marriage and the loan is repaid jointly after marriage, the property owner shall compensate the other party for the joint repayment and the corresponding value-added.
Myth 3: Whoever takes care of the children can get the house. Positive explanation: the party who directly raises children has the priority of housing needs, but the court will also look at the compensation ability, housing contribution and so on, so getting a house does not necessarily mean awarding it to the party with children.
Misconception 4: You must move out immediately after a divorce judgment is issued. Positive explanation: the court and the enforcement stage will guarantee the basic housing needs, and if the owner of the house fails to pay the compensation, it will not be forced to vacate; both parties can also negotiate the grace period for vacating.
Misconception 5: Overestimating one’s own financial capacity and prioritizing securing the property first. Positive solution: those who are unable to pay the discount after the judgment is determined may face compulsory execution or execution reversal; the scheme design should act according to their capabilities, and choose "shared + usage fee" or variable price scheme when necessary.
5. Operable steps and materials list
Six steps are recommended for handling unique housing:1. Assess the value of the property—Engage a qualified institution to conduct an appraisal, or have the market value determined through mutual negotiation (in divorce litigation in Ningbo, the local court may appoint a local appraisal agency).2. Accounting compensation capacity—Assess who is better positioned to acquire a home by considering income, savings, and refinancing capacity.3. Clarify ownership and capital contributions—Confirm whether the property is jointly owned and specify the amount of the down payment made before marriage and the mortgage payments made after marriage.4. Negotiation takes precedence-to reach an agreement on the vesting, compensation amount, payment method and withdrawal period, and may agree to pay in different periods;5. Preparation for Proceedings-- submit the evidence such as the purchase contract, loan repayment record, capital contribution certificate and child support situation when the negotiation fails;6. Implementation—After the judgment takes effect, promptly pay the compensation and complete the transfer of ownership; if necessary, apply for compulsory enforcement. List of required documents: Real estate ownership certificate, purchase contract, bank statements for the down payment and mortgage repayments, proof of funds, appraisal report, evidence regarding child custody and housing needs, and proof of income for both parties.
6. Compensation Calculation Example and Implementation Guarantee Rules
In order to make it easy to understand, give a set of schematic data: the present value of the only house purchased jointly after marriage is 2 million yuan, and the remaining loan is 400000 yuan. There is no difference in down payment and contribution before marriage, and the income of both parties is equal. If the judgment belongs to the man, the woman shall be compensated about (2 million -400000) ÷ 2=800000 yuan; If there is a difference in premarital down payment or one party's fault, it will be adjusted up and down on the basis of 800000 yuan according to the contribution of capital contribution and care factors. In the case of pre-marital down payment and post-marital joint repayment, the compensation is calculated according to the "joint repayment of principal and interest ÷ 2 × (present value of the house ÷ total cost of purchase)"-the Ningbo court's "value-added index × (joint repayment ÷ 2)" is a simplified expression of this logic, according to which a range can be tested first.
In the enforcement of security rules, if the judgment determines that the house party pays compensation, the court usually confirms the compensation payment arrangement before handling the vacation; before the house party pays compensation, the court generally will not force the other party to move out. After entering the execution, in accordance with Article 20 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objection and Reconsideration Cases by the People's Court, the executor must provide residential housing according to the local low-rent housing security area standard for the residential housing necessary for the maintenance of the executed person and his dependent family members, or agree to deduct the rent for five to eight years from the housing price before the court can dispose of it-"the only housing cannot be implemented, the real rule is that" enforcement must guarantee basic residence ". This rule has reference significance for the creditor enforcement of divorced real estate and the handling of debts after divorce, and also explains why the court attaches great importance to housing security when dividing the only housing.
Q: If you didn't deal with the house during the divorce, can you divide it again after the divorce? A: Yes. For the undivided joint property of husband and wife at the time of divorce, either party may sue for division separately after the divorce, and the right shall not be extinguished because the divorce agreement or judgment is not involved (in the case of Chen and Xiang of Ningbo Ninghai Court, the prorated share of the undivided house after the auction is such a path). The statute of limitations shall be held for three years, starting from the time when it is known or should have known that the right has been damaged, and claiming as soon as possible after the omission is found.
Q: What if the only house is awarded to the other party and I can't get the compensation for the time being? Answer: You can agree to pay the compensation in installments and specify the overdue liability in the mediation or judgment, or agree on the convergence arrangement of "retaining the right of residence before the compensation is paid/suspending the retirement"; after the execution, the court will review the order of compensation payment and retirement to ensure basic residence. During negotiations, tying the payment schedule to the housing arrangement is more practical than simply arguing over “who gets the house.”
Q: Who will bear the transfer tax if the house is awarded to the other party? Answer: The transfer of ownership determined by legal documents is generally handled according to the real estate registration and tax regulations. The name change of husband and wife in marriage is exempted from deed tax (Article 6 of the deed tax law). The transfer of divorce and property analysis is implemented according to the registration authority and tax window. The specific tax category and the bearing subject can be clearly defined in the judgment or mediation, and the unknown agreement shall be shared according to the trading habits and legal provisions. Before the transfer, go to the real estate registration window to verify the required materials and taxes, so as to avoid getting the documents stuck in the registration process.
class case reference: in the case of property dispute between gong mou and cheng mou after divorce, the court determined that the house after marriage (including fixed decoration) that was not handled at the time of divorce was the common property of husband and wife, and sentenced the house to be owned by the defendant, and the remaining loan was repaid by the defendant, who paid the plaintiff 688257.84 yuan in discount. It can be seen that if the husband and wife have only one set of common property, the court usually decides that the house is owned by one party, and the owner pays the discount compensation, and at the same time handles the remaining loans, taking into account the housing security of both parties. Trial Court: People’s Court of Zhenhai District, Ningbo City, Zhejiang Province Case No.: (2020) Zhe 02
11Minchu 156
7. FAQ
Question: If there is only one house, how will the court rule?
Answer: Generally, it is judged that the house is owned by one party and the other party gets economic compensation; if both parties are unable to compensate, they can jointly decide and have a clear share, and one party can use and pay the user fee; if the relationship is not completely broken, they may not be sentenced to leave temporarily. The core is to take into account the division and housing security.
Q: Can the mortgage house be awarded to the party without the loan?
Answer: Generally, the lender shall be awarded and the remaining debt shall be assumed; if it is really necessary to change, it must be approved by the mortgagee such as the bank and go through the change procedures, which is difficult to operate in practice.
Q: How to calculate the compensation for the house with down payment before and after marriage?
Answer: The house belongs to the property registration party. After marriage, the principal and interest of the joint repayment of the loan and the corresponding value-added part can be compensated to the other party, which can be estimated by referring to the "value-added index × (joint repayment ÷ 2)", and the Ningbo court can grasp it according to this caliber.
Q: What if both parties want a house and can't afford to pay for it?
Answer: The price can be divided after the sale through negotiation, or the court decides that the house is shared by one party to use and pay the usage fee, and then divided after the conditions are ripe; it can also be agreed in the mediation to give children and retain the right of residence.
Q: What if the other party doesn't move after the judgment?
Answer: Only those who have obtained the house can apply for compulsory execution of vacating, but the execution will examine whether the compensation has been paid and guarantee the basic living demand; it is suggested to specify the period of vacating and the order of compensation payment in the judgment or mediation to reduce the resistance of execution.
8. Practical insights from a lawyer's experience
There is only one suite at home, which does not mean that you cannot divide it. In practice, the court's more common treatment is: the house is awarded to one party, and the owner will give the other party financial compensation; If both parties are unable to compensate and are difficult to live separately, they may not be sentenced to leave for the time being. If the relationship has indeed broken down, it can also be decided that the house is shared and the share is clear, and one party can continue to use it and pay the usage fee.So don't understand "only one suite" as "can't be separated or separated". What really needs to be thought about is how to determine the compensation and whether it can be implemented in place.
In the preparation stage, the family property of this suite should be calculated first: the current market price, the remaining loan balance, the source of down payment and monthly loan repayment, whether there is any contribution from parents, how much is invested in decoration, and whether there is any rental income. Appraisal prices are usually negotiated or applied for by both parties, and don't pat your head on numbers. The compensation plan should be written to the extent to which it can fall to the ground: the amount, one-time or installment, the term of payment, and how to deal with the overdue payment. It is also very difficult to implement the sentence of "compensating the other party for a certain amount of yuan" without a time limit and consequences, which is tantamount to pushing the problem to the last step.
In the negotiation, the reason why the only housing is stiff is often not the problem of money, but the panic of "where to live. You can design a combination plan to open this knot: compensation in installments, appropriate extension of the period of vacating the house, credit with other property such as vehicle deposits and equity, or matching the children's living arrangements. If the other party refuses to compensate and move, it is necessary to predict the difficulty of execution after the judgment in advance and collect the other party's income, credit information and other real estate clues under the name as soon as possible. When negotiating, the matter of "difficulty in implementation" is spread out, and sometimes it is more reasonable for the other party to sit down and talk.
There is no standard answer to the division of the only housing, but there are clear discretionary coordinates: attribution depends on the housing demand and compensation ability, compensation depends on the contribution of capital contribution and loan repayment, and there are three options: housing compensation, common use and variable price distribution. Suggestions to the parties concerned: first entrust the evaluation and calculation of the compensation ability of both parties, and give priority to the negotiation to determine the house owner, the compensation amount and the payment rhythm; Involving mortgage, the housing plan needs to obtain the bank's consent or properly arrange the debt to bear; The party directly raising the children should take the stability of the children's residence as the focus of negotiation and proof; Transfer of ownership shall be handled in time after judgment or mediation, retention of purchase contracts, loan repayment records, capital contribution vouchers and other evidence. Negotiation priority, the program to leave enough room for performance, is the Ningbo family trial high mediation rate background of the lowest cost path.