Ningbo pre-marriage debt after marriage spouse to pay back?

1. legal basis

A debt incurred by a party in his or her name before marriage is, in principle, a personal debt that is repaid by the borrower with his or her personal property. This principle is consistent with the division of the Civil Code on the common property of spouses: personal property before marriage is not converted into common property as a result of marriage, and personal debts before marriage are not ipso facto transferred to the spouse.

There are exceptions: if the creditor can prove that the debt is used for the family to live together after marriage, or if the spouse subsequently recognizes and repays it together, the debt may be discharged within the scope of the common property, or even considered a joint debt.

2. core points

the key to determining whether a premarital debt is implicating a spouse is in use and ratification. If it is used for the purchase of a house or family joint operation after marriage, the creditor claims that the success rate of settlement with common property is higher; if it is used for personal consumption or personal investment losses, it has nothing to do with the spouse.

According to the review caliber embodied in the public judgment of Ningbo court (Cixi court (2018) Zhejiang 0282 Minchu No. 7747 and Ningbo intermediate people's court (2019) Zhejiang 02 Minzong No. 1524), creditors must prove that the debts beyond the daily needs of the family are used for the husband and wife to live together, produce and operate together or based on the expression of common will, and the insufficient proof will not be determined; the review of personal debt before marriage also focuses on "whether it is used for family living together after marriage", and is not supported by insufficient evidence.

Implementation impact of 3. on common property

even if the premarital debt is recognized as a personal debt, execution may still touch the share of the couple's joint property that belongs to the debtor. Courts usually analyze the property and determine the debtor's share of the common property before executing it, rather than directly executing it as a whole. The spouse may file an enforcement objection, claiming to analyze the property first or to retain his or her share.

This means that the spouses are not completely "out of the way": although they are not liable for liquidation, the common property may be disposed of for analysis and execution. Clear attribution through marital property agreement in advance is an effective way to reduce this involvement.

4. boundary conditions

the border is between "ratification" and "benefit". Spouses in WeChat promises to repay jointly, actually repay on behalf of others, and set up guarantees with common property, which may be considered as ratification or voluntary commitment. On the other hand, those who did not participate, did not benefit, and expressly objected to the whole process are usually not liable.

Also pay attention to the timing of the debt and the timing of the marriage. If it occurs before marriage and remains unpaid after marriage, it is still personal debt in principle; however, if the two parties jointly raise new debt to repay the old debt after marriage, the nature may change, which needs to be analyzed in conjunction with the flow of funds.

5. common mistakes

myth 1: Married debt is automatically common. Personal debts before marriage are in principle borne by the individual and are not converted as a result of marriage.

Myth 2: My premarital debt will definitely implore my spouse's property. Before execution, the birth should be analyzed, and the share of spouses will not be affected.

Myth 3: It doesn't matter to help pay back the money once. A replacement may also constitute a ratification, and care should be taken and the description of the nature of the replacement should be retained.

Myth 4: Creditors say common is common. The creditor must prove the use or ratification, and the oral claim alone is not valid.

6. operational steps

1. Check the purpose

check when the loan occurs and where the funds go, and determine whether it flows into the married family to live together.

2. Avoidance of ratification

do not make a commitment to repay in the communication, and if necessary, state in writing that it is only paid in lieu and does not recognize the debt.

3. Objections

when the common property is executed, the execution objection is raised in a timely manner, requiring the first analysis of the property and the retention of its share.

7. practice tips

for the party who has debts before marriage, frank disclosure is more conducive to relationship stability than concealment afterwards, and it is also easier to isolate the risk through marital property agreement. The parties may agree to separately own the income after marriage, and make appropriate publicity or notification of the agreement to reduce the possibility of involvement.

For one spouse, two actions should be avoided after discovering the other party's pre-marital debt: one is not to promise to repay together in front of creditors, and the other is not to use their own account to repay directly. Where necessary, the nature of the payment should be stated in writing and evidence should be retained to avoid being interpreted as ratification.

The Segregation Effect of 8. Marital Property Agreement

the most effective isolation tool for a party with premarital debts is not ex post facto interpretation, but ex ante arrangement. The parties may, before or after marriage, agree on the ownership of the property acquired during the existence of the marriage relationship, and leave a written document and the time for signing the agreement.

It is important to understand that such agreements are mainly effective between husband and wife, and that the resistance to external creditors depends on whether the creditors are aware of them and the time and context in which the debt was formed, and cannot be understood simply as signing the contract to be immune to all debts.

For spouses, in addition to avoiding ratification actions, they can also raise objections to the execution in a timely manner when the common property is executed, requiring that the property be analyzed before it is executed, and that their share be clarified in the analysis of the property, so that the involvement is controlled within a range that does not affect basic life.

9. allocation of the burden of proof

whether the premarital debt implicates the spouse, the allocation of the burden of proof directly determines the outcome. Where a creditor claims to pay off or constitute a joint debt with common property, it shall bear the burden of proof for the debt to be used for the joint life of the married family, or the existence of the spouse's act of recognition, and shall bear the adverse consequences if the evidence is insufficient. The spouse focuses on proving that the funds have not gone into the common account and that there is another stable source of household daily expenses.

There is also a category of situations that are easily overlooked in practice: pre-marital debt is replaced or extended after marriage with a new loan of the couple's common property. At this time, the capital chain changes, the nature of the debt may change, should be combined with the exchange of consensuality and capital flow specific judgment, can not simply follow the pre-marital characterization.

Practical Experience of 10. Lawyers

A debt incurred by a party in his or her name before marriage is, in principle, a personal debt that is repaid by the borrower with his or her personal property. Personal property before marriage does not become common property as a result of marriage, and personal debts before marriage are not, of course, transferred to the spouse. But this is not absolute: if the creditor can prove that the money was spent on the family's joint life after marriage, or that the spouses later recognized and repaid it together, then the debt may be paid off within the scope of the common property, or even recognized as a joint debt.

The key point of judgment is in two words: use and ratification. As a spouse, it is necessary to prepare evidence that "the money was not used for the common life of the family": the flow of funds, the actual use, the consumption and transfer records, the fact that they have never used or benefited. On the other hand, as a creditor, it is necessary to prove that the money is going to the family, such as for the purchase of a house, decoration, joint business or daily expenses. Whoever can explain the capital chain clearly will take the lead in this step, so the bank flow and current vouchers should be transferred as soon as possible.

Marital property agreement can play a role in isolation, but the external effect is limited, still depends on whether the relative person knew at that time, so don't take it as a universal shield. At the stage of implementation, it should also be noted that personal debts may be implicated in the share of the joint property of the husband and wife belonging to the debtor at the time of execution, and in this case, it is necessary to raise objections and claim distinctions in a timely manner. During the negotiation, if the other party uses "this is your own loan, has nothing to do with me" to clear up, first to find out whether the debt is a common debt, and then decide whether to change the conditions on the division of property, at the same time, the part that has been paid on behalf of the back as a discount.