Does Ningbo's private loan count as a husband and wife's joint debt?
Husband (or wife) secretly borrowed money from relatives and friends and online loan platform without telling their spouses. When they got divorced, the creditor took the couple to court together and demanded to repay the debt together -- "I don't know the money he borrowed, so why should I repay it?" This is one of the most frequent problems in the cross cases of family affairs and private loans in Ningbo. One sentence conclusion: the debts borrowed privately by one party do not of course belong to the joint debts of husband and wife. The Civil Code establishes three identification paths of "co-signing and co-debt, family agency and co-benefit". Daily family small loans are mostly presumed to be common debts, and large loans that obviously exceed the daily needs of the family are in principle identified as personal debts of the borrower, while creditors claim common debts, it is necessary to prove that the loan is used for the husband and wife to live together, to produce and operate together or on the basis of the common intention of both parties.
1. Legal Basis: The three criteria for determination under Article 1,064 of the Civil Code
Article 1064 of the the People's Republic of China Civil Code is the core article of determining the joint debt of husband and wife. The original text is: "The debt of the joint signature of both husband and wife or the mutual intention of one of the husband and wife, and the debt of one of the husband and wife for the daily needs of the family in his own name during the existence of the marriage relationship belong to the joint debt of husband and wife. Debts incurred by one spouse during the subsistence of the marriage, in that spouse’s own name and exceeding the ordinary needs of daily family life, do not constitute joint debts of the spouses; however, this does not apply if the creditor can prove that the debt was used for the common life of the spouses, for their joint production and business operations, or was incurred pursuant to a joint expression of intent by both spouses. "This article replaces the extensive caliber of" the debt of one party in marriage is repaid together in principle "in the past, and shifts the burden of proof from" self-certification of the unindebted spouse "to" the purpose of the creditor's proof ", which is significantly fairer to the unindebted party. In practice, there are three ways to determine whether a debt is a joint obligation; the existence of any one of them is sufficient:
Path One: Joint Expression of Intent (Joint Debt, Joint Signature). The husband and wife jointly sign, or one party later recognizes in an express manner, or there is other expression of intention sufficient to infer joint liability. Recognition includes both express (WeChat confirmation, SMS commitment to joint repayment) and implied (repayment of accounts in the common property of the husband and wife or in the name of the spouse, mortgage of the spouse's property for the loan, etc.). If the spouse becomes aware of the matter afterward but does not subsequently ratify it, it does not constitute a joint expression of intent.
Path Two: Liabilities incurred for the daily living needs of the family. One party needs to borrow money for the family's daily life in his own name, which belongs to the scope of "family agency" and is presumed to be a common debt. "Daily life needs of the family" refers to the necessary expenses for the daily life of the husband and wife and their minor children living together, including clothing, food, housing, daily necessities, medical care, children's education, support for the elderly and legitimate entertainment and cultural consumption, etc., the amount and purpose shall be in line with the "daily nature and rationality". To determine whether the amount of reasonable family agency is exceeded, the court will determine the amount of the debt, the local economic level, the name of the loan, the husband and wife's social status, occupation, assets, income and other factors.
Path Three: Used for the couple’s shared living expenses or joint business operations. Large loans beyond the daily needs of the family should be identified as personal debts, but if the creditor can prove that the debt is actually used for the couple's common life, joint production and operation or based on the common intention of both parties, it is still treated as joint debt. "Joint production and operation" means that the operation is a joint decision of both parties, joint investment or income for the common life of the family, only one party sole proprietorship and the spouse does not participate in, no benefit, generally does not belong.
2. Detailed breakdown of typical scenarios: How each of the six scenarios is determined.
1. One party borrows money for everyday household expenses (in small amounts). Small loans for children's tuition, medical treatment, decoration, daily consumption, etc. are usually identified as joint debts, which are repaid by both parties.
2. A large-scale business loan from one party. If it is used for sole proprietorship and the spouse does not participate in it, it is generally recognized as personal debt; if the operating income is actually used for the family to live together, it may still be shared. The key is to see the flow of funds and the attribution of income.
3. Online Lending (P2P Lending). Whether the net loan is joint debt is also judged according to the purpose; if the loan enters into the family joint account and is used for family expenses, it is common; if it is used for personal profligacy, gambling and reward, it is personal. The online loan under the name of the spouse can be viewed in the personal credit report (the simplified version of the online query, the detailed version of the offline access), but the credit can only show the loan record, the purpose still needs to be confirmed by the flow of funds.
4. Illegal debts arising from gambling, drug use, and similar activities. Article 34 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's the People's Republic of China of China makes it clear that the people's court will not support the debt incurred by one spouse in gambling, drug abuse and other illegal and criminal activities, and the third party claims the joint debt of the husband and wife.
5. One party provides a guarantee for another party. Guaranteed debt does not belong to the joint debt of husband and wife in principle, unless the spouses jointly sign to confirm or guarantee that the interest belongs to the family living together, it should be strictly controlled when determining.
6. Pre-marital personal debts. If the creditor claims the right to the debtor's spouse on the personal debt incurred by one party before marriage, the people's court will not support it, except for those who can prove that the debt is used for the family to live together after marriage (Article 33 of the (I) for the Interpretation of Marriage and Family).
3. the burden of proof and the key points of attack and defense: who claims and where the proof falls
In terms of procedure, if the creditor sues and requires the husband and wife to repay the debt together, he should bear the burden of proof for "the loan is used for the husband and wife's common life, production and operation or based on the common intention"; if the amount of the debt obviously exceeds the daily needs of the family and the creditor fails to fulfill the basic examination obligation and only relies on the creditor's rights certificate, it is difficult to require the spouse to share. The defense of the non-borrower should form a closed loop from three directions: first, to prove that he did not know about the loan, did not sign it, and did not ratify it afterwards; The second is to prove that the money has not entered the family's common account and has not been used in the family's daily life (the statement of "for the family" can be punctured by applying for the transfer of loan funds); The third is to prove that the family's daily expenses have independent and stable source of funds without relying on the loan. At the same time, we should avoid making statements that may be interpreted as ratification in the process of communication, such as promising to repay, requesting extension, saying "think of a way together", etc., which may be regarded as ratification afterwards to our disadvantage. The most effective wind control on the creditor side is to require the husband and wife to sign the debt together when lending, and to retain evidence of the use of the money. Two types of quantitative criteria are added here for practical reference: first, there is no uniform numerical standard for judging the amount of "family daily needs". The court will comprehensively determine that the same amount of loans may fall within the daily range of high-income families and obviously exceed those of ordinary working families by combining the per capita consumption expenditure of local residents, the level of family income and the nominal of loans; the judgment may refer to the per capita consumption expenditure data of the residents in the place where the loan occurs as a benchmark, and then adjust it on a case-by-case basis. Second, the determination of "joint production and operation" usually depends on three points: whether the business entity is jointly established or registered by husband and wife, whether the business decision is jointly made by both parties, and whether the business income is used for family living together-if the husband is a wholly-owned registered company and the wife does not participate in the operation or share the income, the company's business loan generally does not constitute the joint debt of husband and wife; On the contrary, if the wife actually participates in and shares the benefits in the operation of family workshops and mom-and-pop shops, it may be shared. The most effective wind control on the creditor side is to require the husband and wife to sign the debt together when lending, and to retain evidence of the use of the money.
4. Debt liability after divorce: internal agreements and external effects
If the divorce agreement or the court decision has agreed on the sharing of debts, the creditor still has the right to claim the rights from both men and women for the joint debts of the husband and wife; after one party bears the joint liability for the joint debts, he can recover the debts from the other party based on the divorce agreement or legal documents (Article 35 of the (I) for the Interpretation of Marriage and Family). In other words, the "agreement on the debt to the other party at the time of divorce" is only valid within the parties and cannot be used against creditors. Therefore, if it is confirmed that it is a joint debt, it is important to clarify the proportion of internal sharing, the order of settlement and the method of recovery in the divorce agreement or mediation, so as to avoid the inability to recover from the other party after the external joint and several settlement. At the same time, we should be wary of false debts: one spouse colludes with a third person to fabricate debts, and the third person claims that the joint debt is not supported (explain the first paragraph of Article 34 of the (I)), and the fictitious debtor may also face litigation sanctions.
5. List of Evidence and Materials
To judge whether a loan is a common debt or not, the three preparation materials of "use, knowledge and benefit" are as follows: 1. The loan contract and the stated purpose of the loan; 2. The flow voucher (bank flow, transfer record) after the fund arrives, to judge whether it enters the family joint account or is used for joint operation; 3. Joint signature, chat confirmation, repayment of principal and interest and so on may constitute the evidence of ratification; 4. The comparison between the amount of the loan and the daily consumption level of the family; 5. The family's daily expenses have another stable source of evidence (wage flow, deposit record);6. Evidence of the spouse's participation in the operation and sharing of income; 7. If illegal debts are involved, gambling, drug abuse and other administrative penalties or criminal materials.
6. Common misconceptions
Myth 1: All debts incurred during marriage are considered joint marital debt. Wrong. The Civil Code has shifted to the "use and knowledge" standard, and large loans in the name of an individual are generally personal debts that are not used for the family.
Misconception 2: If I didn’t sign it, it has absolutely nothing to do with me. If the loan is used for the family’s daily living expenses, or if there is subsequent ratification, or if it is used for joint production and business operations, even without a signature, both parties may still be jointly liable.
Misconception 3: If you agree during a divorce that the other party will assume the debts, you’ve completely rid yourself of them. The internal agreement cannot be used against creditors, and the external parties still need to pay off jointly and severally. After paying off, they will recover according to the contract.
Myth 4: Believe everything the creditor says. Creditors also need to prove the purpose, not "claim is established"; large loans beyond the daily needs, the burden of proof on the creditors.
Misconception 5: Verbally denying responsibility with “I don’t know” will absolve you of liability. In the trial, there is only oral denial but no evidence to support it, so it is difficult to shake the court's mind, and objective evidence such as the flow of funds and the source of family expenses should be submitted voluntarily.
7. Procedure and Time Limit Guidelines: Timeline for Creditors' Claims and Spouse's Defenses
If the creditor sues the husband and wife for joint repayment, the case is usually tried according to the dispute of private loan or financial loan contract, which is under the jurisdiction of the court of the defendant's domicile. If the amount of the lawsuit reaches the standard of the intermediate court, it is determined according to the level of jurisdiction. The main points of the procedure are as follows: the creditor shall prove the loan contract, transfer voucher and collection record, and bear the burden of proof for the "joint life, joint production and operation or common intention of the husband and wife. The non-indebted spouse should respond as soon as possible to the notice of response, raise his or her defense and submit evidence during the defense period, and never be absent-absence may be presumed to be uncontested and the debt may be ordered to be shared.
Limitation and period: The limitation of action of ordinary creditor's rights is three years. From the date when the obligee knows or should know the damage of rights and the obligor, the creditor must prove that the collection or prosecution is not out of the limitation period. If another lawsuit is filed for recovery after divorce, it is also subject to the three-year limitation. In practice, there are also two types of time risks: first, after the divorce agreement or mediation letter confirms the attribution of the debt, the creditor can still claim to both parties within the statute of limitations, internal recovery of another procedure. The evidence fixing proposal shall be completed within one week after receiving the complaint: to obtain the flow of loan funds, to sort out the source vouchers of family expenses, to sort out whether there is a statement of ratification, to form a written defense opinion, and to strive for the initiative for mediation or trial.
class case reference: the loan incurred by one party in the marriage in his own name, the court determined that it was a joint debt of husband and wife, and ordered the other party to bear half of the principal of 80000 yuan, that is, 40000 yuan. It can be seen that whether a private loan is a joint debt depends on whether it is used for the husband and wife to live together, to produce and operate together or on the basis of a common intention, as well as the outcome of the creditor's evidence. Trial Court: People’s Court of Cixi City, Zhejiang Province Case No.: (2017) Zhe 0282 Min Chu 12041 Source: Ningbo Local Marriage Case Database.
8. Frequently Asked Questions
My spouse borrowed money online to trade stocks and incurred losses—am I required to repay the debt as well?
Not usually used. Investment loans such as stock speculation exceed the daily needs of the family, if you do not know, do not recognize, the proceeds are not used for the family, belong to the borrower's personal debt.
The creditor has sued both my ex-husband and me—what should I do?
actively respond to the lawsuit and submit three sets of evidence: unknowingly not ratified, the money is not used for the family, and the family expenses have another source; if necessary, apply to the court to transfer the flow of loan funds, and the creditor shall bear the burden of proof for "living together.
I said on WeChat, “I’ll help him pay this back.” Does that count as ratification?
May constitute. Expressions such as a clear commitment to joint repayment and a request for an extension may be considered as ex post facto recognition, and caution should be exercised in communication before the lawsuit is involved to avoid leaving adverse statements.
The divorce agreement stipulates that the other party is responsible for the debt—can the creditor still sue me?
Yes. The agreement does not have effect on the creditor, the creditor may still require both parties to bear joint and several liability for the joint debt.
Will the court proactively investigate the purpose of the loan?
Courts generally do not conduct investigations on their own initiative, but upon a party’s application, they may obtain evidence such as bank transaction records.Non-debt spouses should apply for the transfer of borrowing funds within the period of proof, which is a key step in breaking the "for family" statement.
9. Practical Insights from a Lawyer
One party borrows money without telling his spouse, and the creditor takes the two to court together during the divorce. "Why should I repay what he borrows" is the most common grievance in this kind of dispute. First of all, it is necessary to establish a correct understanding: the money borrowed by one party in the name of the individual is not, of course, the joint debt of the husband and wife. Small loans for the daily needs of the family are usually recognized as joint debts. The pressure to prove is mainly on the side of creditors.
Therefore, when receiving the claim, the first thing is not to panic, but to collect the evidence that "the money is not used for the family" as soon as possible. The whereabouts, purpose and amount of the loan obviously exceed the daily expenses and who actually bears the family expenses should be supported by materials. The IOU itself should also be reviewed, such as the formation time, whether there is your signature or ratification, and whether it is supplemented afterwards to deal with the divorce. If you have ever repaid your spouse's loan with common property or provided a guarantee, it may be regarded as a common intention. This should be judged clearly in advance and don't let small actions become big trouble.
It is also necessary to distinguish the two lines of "external" and "internal. The divorce agreement stipulates who the debt belongs to, only between you and your spouse is binding, the creditor can still claim to the original borrower according to the original loan relationship, can not use the agreement against the bona fide creditor. When talking about agreements, it is important to both write clear internal commitments and set aside solutions for possible external claims. If you are really sued, the party who advocates that it is not a common debt should take the initiative to provide evidence and defend it in time, and do not use the word "don't know" to respond to the end.
The core of the joint debt of husband and wife is "use and knowledge" rather than the time label of "duration of marriage. The non-borrowing party should, as soon as possible, fix the evidence that "there is another stable source of household expenses that I do not know and do not benefit" and avoid making commitments that can be interpreted as ratification. Creditors should implement the co-signing of the debt from the source, and leave sufficient evidence of use when lending, so as to avoid the situation of "winning the lawsuit and not taking responsibility for the spouse.