Ningbo after marriage to buy a house registration under the name of the divorce how to divide

The house purchased after marriage and registered in the name of both husband and wife belongs to the common property of husband and wife in principle, and shall be included in the common property and divided together in the event of divorce. The fact that it is registered in the names of both parties has a strong publicity effect in law, and it is usually directly presumed that both parties have a common interest in the house, without the need for the claiming party to prove the joint contribution separately. However, registration is not the only determining factor, and the court will still review the source of funds in the split ratio.

Specific to the proportion of division, the joint contribution of the purchase of houses after marriage is generally based on equal division, and then adjusted in accordance with the principle of taking care of the rights and interests of children, women and innocent parties in Article 1087 of the Civil Code. If one party can prove that the purchase price is mainly derived from his personal deposit before marriage or the parents explicitly give only one party to himself, the court will appropriately divide it accordingly, but usually will not deny the common property nature of the house.

1. legal basis

article 1062 of the Civil Code stipulates that the wages, bonuses, remuneration for labor services, income from investment in production and operation, and property inherited or donated by the husband and wife during the existence of the marriage relationship shall be the joint property of the husband and wife and shall be jointly owned by the husband and wife. Houses purchased after marriage with the income of the couple and registered in the names of both parties fall into this range. Article 1065 The husband and wife are also allowed to agree in writing on the ownership of marital property. If there is an agreement and it is legal and valid, priority shall be given to the agreement.

See Article 1087 for the rules of division: At the time of divorce, the common property of the husband and wife shall be disposed of by agreement between the two parties. If the agreement fails, the people's court shall make a judgment according to the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman and the non-fault party. In addition, Article 8 of the (II) on the Interpretation of Marriage and Family stipulates that, on the basis of the source and proportion of capital contribution, the duration of marriage, living together and bearing children, divorce fault, contribution to the family and other factors shall be dealt.

2. core points

in practice, the disputes in such cases are concentrated in three places: first, how to determine when the registration is inconsistent with the contribution, second, how to identify the nature of the parents' contribution, and third, how to land the ownership of the house and the discount compensation.

1. The relationship between the effectiveness of registration and the proof of capital contribution.

When the house is registered in the name of both parties, the party who claims that the house should be owned by me personally needs to bear a heavier burden of proof, usually to provide a complete chain of evidence that the purchase price comes from personal property, such as the balance of the premarital account, the flow of funds, the parents' gift agreement, etc. Only oral statements or post-mortem explanations are limited in their persuasive power.

Conversely, if one party believes that the other party's contribution includes the money of his parents and is a gift to the husband and wife, the evidence should also be organized around the time of the transfer, the subject of the transfer, and whether there is a written indication of the intention of the gift. A clear source of contribution is a prerequisite for subsequent discussion of the split ratio, and vague contributions often lead to equal treatment by the courts.

2. The treatment of housing ownership and discount compensation.

The court generally does not decide that the house shall be maintained in common for a long time after the two parties share, but rather that the whole house shall be awarded to one party, and the acquiring party shall pay the discount compensation to the other party in proportion to the confirmed proportion. The choice of who to belong to will take into account factors such as who actually lives, who directly raises the children, who will repay the loan, and whether there is other housing.

The base of the discount is the market value of the home at the time of divorce minus the outstanding loan principal and interest, multiplied by the other party's share. The market value can be negotiated by both parties first. If the negotiation fails, it can be determined through evaluation or by reference to the recent transaction price of the same community. The burden of evaluation fee should also be claimed.

3. boundary conditions

there is a situation that is easy to be confused: the house was originally the personal property of one party before marriage, and after marriage, it was added to the name of both parties. According to the second paragraph of Article 5 of the (II) interpretation of marriage and family, if the marriage relationship lasts for a short time and the granting party has no major fault, the court may decide that the house belongs to the granting party according to the litigation request, and then comprehensively consider factors such as living together, childbearing, divorce fault, family contribution and housing market price to determine whether compensation and the amount of compensation.

In other words, the legal evaluation of joint purchase after marriage is not the same as that of adding names to marriage. The former starts from the contribution, the latter from the purpose of giving. In addition, if the house involves the share of minor children, there is an outstanding mortgage, it is sealed up in another case, or policy tools such as purchase qualification and provident fund loan are used when purchasing the house, the enforceability will be affected, and the defects of rights need to be solved before division.

Practical Experience of 4. Lawyers

buying a house after marriage and registering it in the name of both husband and wife is, in principle, the common property of husband and wife, which should be included in the division when divorcing. The fact that the names of both parties are registered has a strong publicity effect, and it can generally be presumed that both parties have a common interest in the house, without the need for the claimant to prove the joint contribution. It is usually based on equality, and then adjusted according to the principle of taking care of the rights and interests of children, women and the no-fault party. If one party can prove that the purchase price mainly comes from his own personal deposit before marriage, or the parents clearly only give to one party, the court may be appropriate to divide, but generally will not deny the nature of the house as a common property. If we look at the two things separately, "whether it is common property" and "according to what proportion", our thinking will be much clearer.

Therefore, the party who advocates that he should have more points should focus on making clear the capital contribution chain: the balance of the premarital account, the transfer path of the funds, whether there are written materials for parents' gifts, the purchase contract and repayment records, all correspond as much as possible; Only oral statements or post-mortem explanations are limited in persuasion. On the other hand, if you think that what the other party calls "parental contribution" is actually a gift to both parties, you should also organize evidence around the transfer time, the subject of the transfer, and whether there is a written indication of the intention of the gift. When the division lands, the court generally does not decide that the two parties are shared for a long time, but rather that the whole house is awarded to one party, and the acquirer pays the discount compensation to the other party in a confirmed proportion. The basis of compensation is usually the market value at the time of divorce minus the outstanding loan principal and interest, multiplied by the other party's share.

When it comes to the step of dividing and landing, there are still several places that are easy to ignore. First, the house was originally the personal property of one party before marriage and the name of the other half was added after marriage. This is not the same as "jointly funded house purchase after marriage". If the marriage lasts for a short time and the giving party has no major fault, the court may decide that the house should be given to one party and compensate the other party. Don't think it is bound to be half and half when you see "registered two people. Second, do not regard the registration ratio as an automatic division ratio, the effectiveness of this type of writing by copy needs to be judged in conjunction with whether there is a written agreement. Third, who owns the house is often affected by factors such as who actually lives, who directly raises the children, who repays the loan, and whether there is other housing. It is more pragmatic to put these on the table together in negotiations than to focus on only half of the property rights. On the whole, first talk about "who owns the house, how much compensation, when to pay, how to transfer ownership", then talk about the proportion, easy to talk about and easy to implement.