Ningbo pre-marital down payment house man's parents to participate in the repayment of the loan to another case?

Before marriage, one party paid the down payment and the house was registered in his name. After marriage, in addition to the small couple repaying the loan together, the man's parents also helped to repay part of it. How to deal with this part of the money in the event of divorce, is it to be resolved together in the divorce case? The basic conclusion is that the debt relationship between parents and children is generally not dealt with in divorce proceedings, and if the parents claim to contribute as a loan, a separate lawsuit should be filed.

But this does not mean that divorce cases can be completely ignored. The nature of the parents' repayment portion will affect the determination of the amount of joint repayment after marriage, and thus affect the calculation base of compensation. Therefore, the correct approach is to clearly separate and define the nature of this money in divorce cases, and then decide whether another case is needed, instead of simply merging or not mentioning it at all.

1. the basic rules for the down payment before marriage and the joint repayment of the loan after marriage.

If one of the spouses signs a real estate sales contract before marriage, pays the down payment with personal property and makes a bank loan, and repays the loan with the joint property of the husband and wife after marriage, and the real estate is registered in the name of the down payment payer, the real estate belongs to the registrar at the time of divorce, and the outstanding loan is the personal debt of the registrar.

This rule contains three meanings: the house belongs to the registered party, the remaining loan is repaid by the registered party itself, and the other party takes compensation instead of taking the house. The object of compensation is not only half of the principal of the joint repayment, but also the value-added of the house corresponding to this part of the principal, which is often ignored, and it is also the place where the two sides have the greatest differences and deserve careful calculation.

The calculation of compensation requires three data: the total cost of the purchase, the principal amount of the joint repayment after marriage, and the market value of the house at the time of divorce. The usual idea is to first calculate the proportion of the joint repayment principal in the total cost of buying a house, and then use this proportion to correspond to the value-added part of the house, and then share it between the two parties. The specific calculation method is slightly different from place to place, and the final determination of the court shall prevail. In the practice of Ningbo area, reference can be made to the judge's caliber of Beilun Court, which is made public by the Ningbo Intermediate People's Court in terms of "case statement"-compensation is calculated according to the "value-added index x (joint repayment ÷ 2)", I .e. the value-added corresponding to the joint repayment part is shared by both parties, which is consistent with the thinking of this section.

Why 2. Parents Involved in Repayment Not Incorporated into Divorce Cases

1. The parties are different

the parties to the divorce proceedings are the husband and wife, and the parents are not parties to the case. If the direct determination of the existence of a loan relationship between parents and children in a divorce case and the award of repayment is tantamount to dealing with the rights and obligations of the parents without participating in the proceedings as a party, it is not appropriate in procedure. Therefore, if parents want to claim repayment, they need to sue separately as lenders.

Different legal relationships

divorce cases deal with the dissolution of marriage, child support and the division of common property and debts of husband and wife, which belong to the field of marriage and family, while the loan relationship formed by parents' contribution belongs to the field of contract, and the constituent elements, burden of proof and trial ideas of both are different. Joint trials can easily lead to a mixture of disputes, which in turn lengthens the trial cycle of the entire case.

It is important to note that if the parents' contribution is recognized as a gift, there is no debt to be repaid and there is naturally no need for a separate case. Therefore, the qualitative problem must be solved first. It directly determines whether there is a second case to be played later, and also determines the compensation algorithm in divorce cases.

3. the money is a loan or a gift and decide who will sue.

After marriage, parents contribute to the purchase of houses for their children and husband and wife, and if there is an agreement, it shall be handled according to the agreement. If there is no agreement or the agreement is not clear, it tends to be regarded as a gift to both husband and wife. However, this article discusses the purchase of a house before marriage, the participation of parents after marriage to repay the loan, and the registration of the house in the name of their children, at this time more need to combine the meaning of the capital contribution, the whereabouts of the money and whether there is a comprehensive judgment of repayment arrangements, can not directly apply a rule.

The party claiming the loan bears the burden of proof. If the loan is stated in the debit note and transfer postscript signed at the time of capital contribution, and there is a record of repayment or reminder, the possibility of being deemed as loan is obviously higher. It is usually difficult to obtain support from the general practice reflected in the public judgment of Ningbo court that it is only proposed for the first time in divorce proceedings and has never claimed repayment for many years.

If it is identified as a gift to one's own children, then this part of the loan repayment does not belong to the joint repayment of the husband and wife and is not included in the compensation base; if it is identified as a gift to both parties, it may be treated as a joint property investment; if it is identified as a loan, It forms the debt of the registered party or the husband and wife, and the repayment problem needs to be resolved through another case. The three conclusions correspond to three sets of algorithms, and the final results are very different.

How to determine the base of 4. compensation calculation.

When determining the base, the sources of repayment should be broken down one by one: which are repaid after marriage with the joint income of the husband and wife, which are paid directly from the parents' account, and which are paid by the registered party's personal deposits before marriage. Only the principal portion of the joint property of the husband and wife after marriage constitutes the basis for calculating compensation; interest is generally not included in the principal, but can be considered as one of the factors of the overall consideration.

The difficulty in practice lies in the mixing of funds. Wage income and the money transferred by parents into the same account and then unified repayment of the loan, it is necessary to restore the corresponding relationship between the amount in chronological order. Therefore, the bank flow, repayment details and the integrity of the transfer voucher, often directly determine whether this part of the claim can be adopted, the lack of a paragraph may be identified as insufficient proof.

Practical Experience of 5. Lawyers

before marriage, one party paid the down payment and the house was registered in his name. After marriage, in addition to the couple's repayment of the loan, the man's parents also helped to repay part of it. In such cases, divorce is most likely to be biased by the idea of "merger. From a practical point of view, the debt relationship between parents and children is generally not resolved in divorce proceedings, parents claim that the contribution is a loan, should be sued separately. The reason is very direct: the parties to the divorce case are both husband and wife, and the parents are not the parties to the case. It is not appropriate to directly judge the loan between parents and children in the divorce case. What needs to be done in a divorce case is to first separate this part of the money clearly and define the nature.

Why do we need to define it? Because the nature of the parents' repayment part will affect the determination of the "joint repayment amount after marriage", and then affect the calculation base of compensation. Operationally, first sort out who paid each sum of money, from which account it went, whether there was a debit note or repayment agreement, whether the parents were giving or paying in advance at that time, and sort out the evidence together with the repayment flow. According to the idea of "half of the principal and interest of the joint repayment + corresponding value-added" to determine the scope of compensation-compensation is not only half of the principal, but also includes this part of the corresponding housing value-added, which is the biggest difference between the two sides and the most valuable.

There should be two sets of plans in the procedure: in the divorce case, the parents' contribution should be separated and clearly defined, and the other party should not easily count it into the joint repayment; If parents want to claim repayment, they will sue separately as lenders. During the negotiation, you can use "another case will lengthen the cycle, increase costs and uncertainty" to push the other party to make concessions on the amount of compensation. On the other hand, one side should assess in advance whether the parents' contribution is a gift or a loan-this directly determines whether you will receive more compensation in the future or whether you will repay an extra debt. If you think about it clearly, don't both sides want to take it.