How to divide the divorce after marriage loan to buy a house in Ningbo

After a few years of marriage, the young couple bought a house on a mortgage, with the property title registered under one spouse’s name and monthly payments being made by that same spouse. When it comes to divorce, can the other party divide? Who owns the house? Who will pay the rest of the loan? How to handle the transfer? The conclusion starts with the following: in principle, the house purchased by the marriage loan belongs to the joint property of the husband and wife, whether registered in the name of one party or both parties. This article dissects the legal basis, the method for calculating the division, loan handling, and the procedures in Ningbo.

1. Legal Basis: Presumption of Joint Ownership and the Principle That Loans Follow the Property

Article 1062 of the the People's Republic of China Civil Code stipulates that the wages, bonuses, remuneration for labor services, income from production, operation and investment, income from intellectual property rights, inherited or donated property (except those determined to belong to only one party in the will or gift contract) earned by the husband and wife during the existence of the marriage relationship are the common property of the husband and wife; Article 1063 stipulates the scope of personal property. Mortgage purchase after marriage, no matter whose name is registered, as long as the purchase money and loan repayment funds come from the joint income of the husband and wife, it falls into the scope of Article 1062 and is presumed to be the joint property of the husband and wife. At the same time, article 1065 allows husband and wife to agree on a property system: both parties may agree on the ownership of the house through a marital property agreement, but the agreement shall not take divorce as the effective condition, otherwise it may be deemed that the attached conditions have not taken effect.

The key to whether the mortgaged house can be divided lies in Article 106 of the Civil Code: "During the mortgage period, the mortgagor can transfer the mortgaged property, unless otherwise agreed by the parties. If the mortgaged property is transferred, the mortgage right will not be affected." Accordingly, the house still has a bank loan outstanding, does not affect the court in the divorce case on the ownership of the house to make a decision, the court will usually at the same time clear by the party to obtain the house to continue to bear the remaining loan debt.

Another situation that needs to be distinguished is the joint repayment of the loan after the marriage, which is applicable to 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: One party signs a contract for the sale of real estate before marriage and pays the down payment with personal property, and after marriage, the real estate is registered in the name of the down payment payer, and the real estate is dealt with the agreement between the divorce; if the agreement fails, the court may decide that the real estate belongs to the registered party, the loan that has not yet been returned is its personal debt, and the amount paid by the two parties after marriage and the corresponding property appreciation shall be compensated by the registered party to the other party-which is completely different from the two sets of rules of "buying a house after marriage.

2. Calculation method for division: determination of net asset value and discount amount

The division of the mortgage house after marriage is carried out according to the "net value method": the net value of the house = the present value of the house (determined by negotiation or evaluation)-the remaining loan principal. The calculated net value is the divisible part of the joint property of the husband and wife, and the court determines the respective shares and discounts in conjunction with the principle of taking care of the rights and interests of the children, the woman and the no-fault party (article 1087 of the Civil Code). For example: after marriage, the purchase price of the couple is 3 million yuan and the loan is 2 million yuan. when the divorce occurs, the estimated present value of the house is 5 million yuan and the remaining loan principal is 1.8 million yuan, then the net value of the house is 3.2 million yuan. If it is decided that the house belongs to the man and the woman gets half of the net value, the man shall pay the woman a discount of 1.6 million yuan and bear the remaining 1.8 million yuan loan.

There are three ways to determine the present value of the house: both parties agree through negotiation to save the most cost; if the negotiation fails, they can jointly entrust a qualified evaluation agency to evaluate; if it is still uncertain in the lawsuit, the court should entrust the judicial evaluation. It is recommended that both parties jointly appoint a recognized appraisal agency to reduce adversarial costs; appraisal fees are typically shared by both parties or prepaid by the applying party. Practical tips: small tail difference cases do not need to pursue accurate evaluation, can refer to the recent transaction price with the community, the listing price negotiation to determine, to avoid the evaluation fee exceeds the disputed amount.

3. Scenario breakdown: Handling rules for five common scenarios

Scenario 1: After marriage, both parties contribute financially, but the property is registered solely in one person’s name. As long as the purchase and repayment of the loan occurs within the marriage and the funds are derived from common property, it is common property, registration does not change the internal attribution, and the division method is the same as above.

Scenario 2: One party uses premarital personal property to pay the full purchase price and registers the property in their own name. It is the personal property of the party and the divorce is not divided; if the purchase of a house after marriage is made with pre-marital deposits but the funds are mixed with common property and cannot be clearly traced, it may be found to contain common elements.

Scenario 3: After marriage, one party’s parents provide funds for the down payment or the full purchase price. If the full amount is paid and the gift contract clearly only gives to one's own children, the court may decide that the house belongs to the children of the investor and give the other party appropriate compensation (Article 8 of the (II) on the interpretation of marriage and family); Part of the capital contribution is treated in conjunction with the joint repayment of the loan.

Scenario 4: The property has not yet obtained full ownership (e.g., affordable housing or a property without a title deed). The court may only deal with the right to use residence or not deal with it temporarily, and then divide it separately after the property right is clear. Advance notice registration, online signature filing, etc. do not affect the determination of the internal rights and obligations of husband and wife, but the realization and transfer of ownership are limited.

Scenario 5: The primary borrower is one party, but both parties either want to take possession of the property or neither wants it. If both parties want to take the house, the court shall comprehensively raise the children, living status, solvency and bid to determine the ownership and discount compensation; If neither wants the house, the price can be divided after the house is sold through negotiation. If the negotiation fails, the price can be divided after auction and sale.

4. Common misconceptions

Myth 1: The house belongs to whoever it is registered under. Positive solution: after marriage to the common property purchase of the house, registration only has the effect of external publicity, does not change the common property attributes within the husband and wife.

Misconception 2: The primary borrower is guaranteed to obtain the property. Positive solution: the main lender is only the main body of the bank debt, the court's decision on the ownership of the house is to consider the contribution, repayment contribution, housing needs and care principles, the main lender does not necessarily obtain the house.

Misconception 3: A house with a mortgage cannot be divided. Positive solution: Article 106 of the Civil Code has made it clear that the mortgaged property can be transferred during the mortgage period, the court can deal with the ownership of the house and the remaining loan in the divorce case, "the loan with the house" is a common practice.

Misconception 4: Just because the divorce agreement stipulates that the house belongs to me, I can immediately transfer the property title. Positive solution: if one party does not cooperate after the divorce agreement, it is still necessary to confirm or apply for compulsory execution of the transfer through litigation; if the loan is involved, it must first negotiate with the bank to change the borrower or settle the loan in advance, otherwise the bank mortgage will not be dissolved by the divorce agreement.

5. Operable steps: from negotiation to transfer of ownership.

Step 1: Determine the current value of the property: through negotiation or by jointly commissioning an appraisal. Step 2: Calculate the home equity by subtracting the remaining loan principal from the current market value (as verified by the bank’s loan balance statement). Step 3: Negotiate the ownership of the property and the cash-out compensation, taking into account the primary borrower’s identity, child custody arrangements, financial capacity, and housing needs. The fourth step is to implement the loan change and transfer: the party who obtains the house negotiates with the bank to change the loan contract (change the borrower or co-borrower), or to handle the transfer of property rights after paying off the remaining loan in advance. List of materials: real estate certificate, purchase contract, loan contract and repayment flow (proof of repayment contribution), certificate of remaining loan balance issued by the bank, capital contribution certificate (down payment transfer record, parent capital contribution certificate), divorce agreement or court judgment document.

6. Key points regarding evidence presentation in disputes and court rulings.

In the dispute over the division of the post-marriage loan house, the court focuses on four elements: the time of house purchase and the time of marriage registration, the source of funds for house purchase (individual or common), the source of funds for loan repayment (marital income or personal property), and the agreement between the registration subject and capital contribution. In the distribution of the burden of proof, the party claiming that the house is personal property must prove that the purchase price is all derived from the personal property before marriage or the funds that the parents explicitly give only to their own party. Evidence list: purchase contract, payment voucher and down payment transfer flow, loan contract and repayment flow, parents' contribution voucher and gift or loan agreement, real estate certificate and real estate registration information, income and account flow of both parties, draft divorce agreement or chat record (involving the contents of the attribution agreement). If the court is unable to ascertain the source of the contribution, it shall be presumed to be treated as common property in accordance with article 10

62of the Civil Code.

Judgment Prompts: First, the current value of the house is subject to the time of divorce, and the base date of assessment is usually the date of prosecution or court session; Second, the discount supports the principle of one-time payment, and the one-time payment can be ordered in installments and the interest is specified if it is really difficult to do so; Third, the court may award the house to the party who directly supports the minor children and retain their residence; Fourth, if one party sells the common property or transfers the loan repayment funds without authorization, the other party may claim less points or compensation-transfer evidence (transfer records, low-cost transactions, capital flows) is the key to claiming less points. Negotiation priority, evaluation of pricing, agreement to write three things, is the majority of Ningbo families low-cost solution to the loan housing division of the common path.

7. Points to note regarding the performance of the agreement and remarriage or further disposition.

The agreement of the divorce agreement on the loan house often encounters three types of problems in the performance: First, the other party delays in paying the discount-the agreement should stipulate overdue liquidated damages and specify the terms of acceleration of maturity, and those who fail to pay overdue can apply for compulsory execution of their wages, rent and other income; Second, the house transfer and loan change are not synchronized-if the party who acquires the house is unable to settle the loan at one time, most banks require that the "change of borrower" must be jointly applied by both parties and meet the credit investigation conditions. Those that cannot be changed can only maintain the original loan contract, make actual repayment by the acquirer and retain the repayment certificate, and transfer the ownership when the conditions are ripe. It is necessary to agree in writing on "in whose name the loan is made, who is actually making repayment, and how to bear the responsibility for breach of contract" to avoid further disputes due to credit investigation after divorce; third, the property after remarriage is mixed-if the remaining loan of the house is repaid with the common property after the remarriage of the party, the remarried spouse may claim the corresponding value-added share, and it is recommended to use the personal account to repay separately or keep clear accounts after remarriage.

In addition, if the price of the common property is divided, the distribution ratio of the house price, the collection account and the transfer cooperation obligation should be stated in the agreement to prevent one party from refusing to pay after receiving the money; if the capital contribution of the parents is involved, the nature of the capital contribution (gift to the individual/both parties, loan) should be confirmed in the agreement to avoid the second round of disputes caused by parents' claims as creditors after years of divorce.

case reference: in the case of property dispute after the divorce between ma and hu, the court determined that the property jointly purchased after marriage belonged to the common property of husband and wife, and ordered the house to belong to the plaintiff, the plaintiff compensated the defendant 370000 yuan, and the defendant vacated and delivered the house. It can be seen that the purchase of a post-marital loan is in principle a common property, and in the event of divorce, the party who acquired the house generally continues to repay the remaining loan and pays a discount to the other party according to the net worth of the house. Trial Court: People’s Court of Yuyao City, Zhejiang Province Case No.: (2019) Zhe 02

81Min Chu 1098

8. Frequently Asked Questions

After we got married, the house was registered solely in my name. Do I still have to divide it in a divorce?

Generally, it needs to be divided. Houses purchased with joint property after marriage belong to the joint property of the husband and wife, regardless of whose name they are registered, and may be recognized as personal property unless it can be proved that all the purchase money comes from personal property (e. g. personal deposits before marriage can be clearly traced, parents clearly give only to their own party).

The house still has a mortgage—how will the court handle it?

The court can determine the ownership of the house and make it clear that the remaining loan should be borne by the party who acquired the house, that is, "the loan goes with the house"; the loan that has not been paid off does not constitute a barrier to division, but it is necessary to negotiate with the bank to change the borrower or settle the loan before the transfer.

How is the discount amount calculated?

The net value of the house = the present value of the house (negotiated or assessed price)-the remaining principal of the loan, and the net value is divided according to the share; the court will also adjust the proportion according to the principle of taking care of the rights and interests of the child, the woman and the no-fault party. If the house is purchased before marriage and the loan is repaid together after marriage, the principal and interest of the joint loan repayment and the corresponding value-added part shall be compensated according to Article

78of the explanatory (I).

The divorce agreement states that the house belongs to me, but the other party refuses to cooperate with the transfer of ownership—what should I do?

can sue to require the other party to fulfill the divorce agreement, and apply for compulsory execution of the transfer according to the effective judgment; if the mortgage loan is involved, it is necessary to deal with the change or repayment of the bank loan first, and then register the transfer of real estate rights.

9. Practical Insights from a Lawyer

The house purchased by mortgage after marriage, no matter registered in the name of one party or both parties, as long as the purchase money and loan repayment funds come from the common income of the husband and wife, it is the common property in principle, and the monthly payment does not change this nature, and the identity of the main lender is only a reference factor. So when a party immediately asks, “If the house is registered under his name, does that mean I won’t get anything?”, they’re usually overthinking it. What really needs to be calculated is the net value-the present value of the house minus the principal of the remaining loan, which is the divisible part, and then the owner will compensate the other party at a discount according to the share, and the remaining loan will continue to be borne by the owner.

In terms of operation, the present value is determined first, and the cost is the most economical through negotiation. If the negotiation cannot be concluded, the evaluation can be jointly entrusted. In the lawsuit, the judicial evaluation is entrusted by the court. The choice of the base date of the evaluation will affect the result, especially the period of house price volatility should be fixed in advance. The mortgage is not clear the house does not affect the division, but the transfer will be affected, in practice there are three ways: the house to settle the loan before the transfer. It is much more solid to write "who will repay the loan, how to transfer the ownership and when to pay the compensation" into the document than to write only one sentence "who will own the house"..

The most important thing to avoid in the negotiation is to understand "the loan goes with the house" as "whoever pays the loan gets the house". The other party has a share of the part of the joint repayment of the loan and the corresponding value-added. On the other hand, the outstanding loan should be calculated clearly, and the owner should not think that he is getting the full value of the house. It is also necessary to distinguish between buying a house before marriage and repaying the loan together after marriage. Another set of compensation rules applies, which cannot be confused with buying a house after marriage. If you are worried that the other party will dispose of the house without authorization during the lawsuit, apply for preservation as soon as possible, which is more worry-free than investigating afterwards.

The core of the divorce division of post-marriage loan house purchase is three sentences: common property depends on the source of funds rather than the registered name; the division is based on "net value = present value-remaining loan" and takes into account the principle of care; the loan goes with the house, and the transfer goes through the bank first. When negotiating, the present value is determined, the net value is calculated, and the discount is discussed, and the remaining loan holder, loan change and transfer period, and overdue liability are written into the divorce agreement.

There are two other points that are often ignored: one is the balance of provident fund loan and provident fund-the common property of the husband and wife of housing provident metal deposited after marriage, which can be divided into account balance or converted compensation when divorce; the part of provident fund loan will continue to be repaid by the acquiring party along with the ownership of the house, and it must apply to the provident fund center to change the borrower and re-evaluate the repayment ability. Second, credit and follow-up loans-after the divorce of the common loan did not change the borrower, the two sides of the credit is still implicated in each other, one party overdue impact on the other party's follow-up purchase loans, be sure to agree in the agreement to change the loan processing period and overdue cooperation of the default liability, to avoid "marriage and divorce, debt is still tied".