Insights

Ningbo pre-marriage mortgage after marriage notarization total, can be divided into half

Ningbo Author：LuXu WANG

The man bought the house with loan before marriage. After marriage, both parties agreed that the house property was jointly owned and notarized. At the time of divorce, the woman claimed that she should get half of the property. Will the court support it? First of all, the conclusion is that the notarized agreement on marital property is legally binding, and the real estate is thus transformed into the joint property of the husband and wife, and the woman can claim division. However, "common ownership" does not mean "one person and one half"-if the share is clearly agreed in the notarial deed, if there is no agreed share, the court shall comprehensively consider the contribution, marriage time, child support, fault and other factors to determine the division ratio. This article is developed in conjunction with the Civil Code, the Notarization Rules, and the guidelines for family litigation in Ningbo.

Basis of 1. Validity: Why is the notarized agreement on marital property "nailed firmly"

Article 1065 of the Civil Code stipulates: "The man and the woman may agree that the property acquired during the existence of the marriage relationship and the pre-marital property shall be owned by themselves or jointly owned or partially owned by themselves or partially jointly owned by themselves. The agreement shall be in writing. ...... The agreement between the husband and wife on the property acquired during the marriage and the premarital property shall be legally binding on both parties. "When the man buys a house with a loan before marriage, both parties agree in writing that the property is jointly owned and notarized. The agreement is legally binding on both parties from the time of its establishment, and the ownership status of the property is legally transformed into the joint ownership of the husband and wife-even if the real estate registration has not yet been completed, the property agreement itself still has the effect of binding both parties.

Notarization has three functions in it: the first one is the probative force-the notarization has a strong proof effect on the authenticity of the intention expressed by both parties and the voluntariness of the signature. In the future, one party claims that "he was cheated and forced at that time" is difficult to overturn; the second one is to block the arbitrary revocation-if the agreement is deemed to have the nature of gift, article 658, paragraph 2, of the Civil Code stipulates that a notarized gift contract may not be arbitrarily revoked, and the third is to reduce disputes-the notarized agreement text is clear and the signature is standardized, so as to avoid different words about "what is agreed. It should be noted that the validity of the notarization agreement is not equal to the completion of registration: the property is still in the mortgage, may not be able to immediately handle the transfer of the name, but this does not affect the validity of the notarization agreement-the validity and registration are two different things.

2. the distance between "common share" and "one person and one half": where does the share come from

This is the most misunderstood part. Article 299 of the Civil Code stipulates that co-owners jointly enjoy ownership of the shared real estate; Articles 309 and 309 stipulate that if the co-owners do not agree on the shared real estate as shared or shared, or if the agreement is not clear, it shall be deemed as shared. If the co-owners have no agreement or unclear agreement on the common share, it shall be determined according to the amount of capital contribution, and if the amount of capital contribution cannot be determined, it shall be regarded as equal. The joint ownership of husband and wife is based on the status relationship and is shared in principle. However, when divorce is divided, "common ownership" as a qualitative conclusion does not automatically mean "half of each"-Article 1087 of the Civil Code stipulates that common property shall be dealt with by agreement between the two parties during divorce. 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 children, women and no fault. Housing is not simply based on "who contributes more, who shares more", but is measured comprehensively:

  1. whether there is a clear agreement on the share: if the notarial certificate states "50% each" or a clear proportion, it shall be divided according to the agreement in principle.
  2. contribution: the source of down payment, the proportion of repayment before marriage and joint repayment after marriage are the important basis of the court's discretion.
  3. marriage time and family contribution: duration of marriage, whether to give birth and raise children, whether one party gives up work due to family, etc.
  4. Divorce Fault and Care Principle: Take care of the rights and interests of the child, the woman and the innocent party.

In other words, the notarial agreement "joint ownership" changes the property from "one party's premarital property" to "the joint property of husband and wife", which solves the problem of "whether it can be divided"; and "how much to divide" depends on the content of the agreement and the court's comprehensive discretion on the above factors. Ningbo Intermediate People's Court "to the case" "divorced," account "how to calculate?" (2014-08-05) The reference standard given is: the compensation for joint repayment of loans after purchase before marriage is calculated as "value-added index × (joint repayment ÷ 2)" (the standard of the judge of Beilun Court)-even if the notarization agreement is common ownership without specifying the share, the court will still determine the division ratio and discount compensation in combination with factors such as contribution of capital contribution, and will not simply mechanically "one person and half".

Treatment of 3. Gift Components: How Notarization Blocks Erection

If the "notarized co-ownership" agreement is identified as containing the gift component (one party gives part of the rights and interests of the pre-marital property to the other party), the rule of Article 658 of the Civil Code is that the donor can revoke the gift before the transfer of the rights of the donated property, except for the notarized gift contract or the gift contract with public welfare and moral obligations such as disaster relief, poverty alleviation and disability assistance that cannot be revoked according to the law. The agreement that has been notarized, the donor can no longer be arbitrarily revoked on the grounds of "no transfer"-this is the core value of notarization. However, it should be noted that notarization blocks "arbitrary revocation" and does not block "statutory revocation": Article 663 of the Civil Code stipulates that if the donee seriously infringes the legitimate rights and interests of the donor or the donor's close relatives, fails to perform the obligation to support the donor, and fails to perform the obligations stipulated in the gift contract, the donor may revoke the gift. In addition, if one party can prove that there was fraud or coercion at the time of the conclusion of the agreement, it may request the revocation of the civil legal act in accordance with the law (articles 148 to 150 of the Civil Code), but it is very difficult to prove it.

4. Case Subdivision and Boundary Conditions

  1. Notarization clearly "50% each": In principle, the divorce is divided by 50%, and the court respects the explicit agreement; if one party claims an exception, it must prove that there are reasons for revocable such as fraud and coercion.
  2. Notarization only writes "common" unwritten share: The real estate is defined as common property, but the division ratio is determined by the court's comprehensive contribution, marriage time, child support, fault and other discretion, and cannot directly claim "must be half".
  3. There are conditions attached to the notarization: if it is agreed on such conditions as "jointly owned, but if there is divorce and no children, the property belongs to the man", whether the condition is achieved or not will affect the final treatment, and the court will review the validity of the condition.
  4. The mortgage of the real estate is still outstanding: it may not be possible to handle the transfer and addition immediately, but the validity of the notarization agreement will not be affected; when the divorce is divided, the court will deal with the remaining loan.
  5. The agreement is signed in the short term before the divorce: if one party claims to be a false agreement for obtaining divorce registration or evading debts, the court will examine the background and true meaning of the contract, and if necessary, determine it by combining with other evidence.

Analysis of 5. Common Misunderstandings

  1. Misunderstanding 1: It is agreed that the common share is one person and half. positive solution: common ownership solves the problem of "whether it is common property", which is not equal to "50% of each share"; if there is no clear agreement on the share, the court shall determine the proportion of comprehensive contribution, marriage time, child support, fault, etc.
  2. Misunderstanding 2: Once notarized, it will definitely be divided into half. Positive solution: what the notarization enhances is the validity and probative power of the agreement. Whether the agreement can be divided in half depends on the content of the agreement (whether there is a share or not) and the discretionary factor of the court. The notarization itself does not set the division ratio.
  3. Misunderstanding 3: If there is no transfer, the notarization agreement will be invalid. positive solution: after notarization, the property agreement between husband and wife has legal binding force, which does not take the transfer of ownership as the effective condition; the transfer of ownership solves the problem of real right change and confrontation with the third party, which is different from the validity of the agreement.
  4. Misunderstanding 4: You can unilaterally revoke the notarization agreement. Positive solution: one party cannot revoke the notarized property agreement or gift at will; only the statutory reasons for revocation (serious infringement, failure to perform maintenance obligations, etc.) or fraudulent coercion can be revoked, and the burden of proof lies with the claimant.

6. operation steps and material list

  1. Obtain the notarial certificate, real estate certificate (real estate certificate), loan contract, repayment record and other materials, and confirm whether the notarial text has a clear agreement on the real estate share.
  2. Sort out the sources of down payment, the situation of repayment before marriage and joint repayment after marriage, and calculate their respective contributions.
  3. Negotiated division scheme: If there is a share agreement, the compensation shall be calculated according to the agreement, and if there is no agreement, the compensation shall be calculated according to the principle of combined contribution and care; if the negotiation fails, the compensation shall be sued to the court.
  4. Keep the original of the notarial certificate as the core evidence of claiming rights; if it involves disputes over the present value of the house, apply to the court for entrusting evaluation.
  5. If the loan is not settled, confirm with the lending bank the conditions and process of name addition and transfer, and determine the loan commitment together when the court divides.

7. Revocable grounds stipulated in the notarial agreement and the transition between old and new rules

Notarization enhances the stability of the agreement, but it is not absolutely unshakable. The causes of revocation mainly include: fraud and coercion at the time of conclusion (articles 148 to 150 of the Civil Code)-if one party conceals major debts and forces the contract to be signed by threat of violence, the claimant must provide evidence; The donee seriously infringes the legitimate rights and interests of the donor or his close relatives, and fails to perform the legal revocation such as the obligation to support the donor (Article 663); and the content of the agreement violates the mandatory provisions of the law or public order and good customs. In terms of the difficulty of proof, the notarized document has a strong presumption of the true meaning, and the party claiming revocation must provide new evidence other than the notarization procedure (duress recording alarm record, fraud corresponding letter), which is difficult to overturn only by "not thinking clearly at that time.

There are two points to be paid attention to in the convergence of rules: first, Article 5 of the Marriage and Family Interpretation (II) implemented on February 1, 2025 establishes comprehensive adjudication rules (combining the attribution and compensation of judgments such as the purpose of giving, the duration of marriage, living together, bearing children, fault and contribution)-even if the notarization agreement does not specify the share, the court will comprehensively measure the divorce, notarization is only the strongest proof of "the existence and truthfulness of the agreement" and does not replace the court's comprehensive discretion on the proportion of the division; secondly, if the interests of the creditor are involved, the creditor may request the revocation of the property agreement that impairs the realization of the claim in accordance with Article 538 of the Civil Code, provided that causality is claimed and proved within the period of exclusion. For the parties, the more specific the notarization itself is written (share, additional conditions, loan commitment), the less room for discretion.

There is another detail in the registration process: if the real estate is still in the mortgage status, you must first communicate with the loan bank to handle the addition or transfer of ownership-if the bank agrees to change the borrower or handle the transfer of ownership with mortgage, you can complete the mortgage change and ownership transfer simultaneously; if the bank does not agree, you usually have to pay off the loan before registration. If the court judges the property to one party at the time of divorce division, the remaining loan will generally continue to be borne by the acquiring party, and the other party's compensation for the joint repayment of the loan part has been included in the discount and does not need to be settled separately.

8. FAQ

The property before marriage is notarized as common, can it be divided into half when divorcing?

can claim a split, but not necessarily a half. The notarization agreement makes the real estate the joint property of the husband and wife, and solves the problem of "whether it can be divided"; the specific share depends on whether the notarization certificate has a clear agreement, and if there is no agreement, it is determined by the court's comprehensive contribution, marriage time, child support, fault and other factors.

Notarization does not write a share, how does the court usually decide?

The court will combine the source of down payment, the proportion of repayment before and after marriage, the duration of marriage, the situation of child support, divorce fault and other discretion, Ningbo reference caliber for "value-added index × (joint repayment ÷ 2)" type of compensation calculation, the proportion of the case shall be subject to the judgment.

It has been notarized but has not been transferred. Can you go back on your word?

can not be arbitrarily repentant. A notarized gift or property agreement may not be revoked arbitrarily (article 658 of the Civil Code).

The loan has not been paid off, can you add a name to the transfer?

usually need to obtain the consent of the loan bank (change the mortgagor or handle the transfer of ownership with mortgage), and the implementation caliber varies from place to place; the uncleared loan does not affect the validity of the notarization agreement, and the share and loan commitment method can be determined first when the divorce is divided, and then the registration is processed.

After the notarization agreement "common ownership", one party makes a will to leave the house to others, is it effective?

The invalid portion relates to the spouse's share. After the real estate has become the joint property of the husband and wife, one party can only dispose of his own half of the share. The common state of the notarization agreement is first, and the will is disposed of later, and the latter shall be limited to the share that the disposer is entitled to dispose.

Practical experience of 9. lawyers

"notarization of common ownership is equal to one person and half", which is the most common misunderstanding in this kind of cases. What notarization solves is whether this agreement counts or not, whether it can be reneged casually, does not mean that the share is locked in the average. If the share is written in the notarial deed, it shall be divided according to the agreement; if the share is not written, the court will determine the proportion by combining factors such as capital contribution, loan repayment, age of marriage, children and fault. Therefore, after reading the notarial certificate, the first thing is to find out whether there is a clear statement of "share", rather than taking it for granted. Share written and unwritten are two completely different processing paths.

In terms of operation, draw the time line clearly: who paid the down payment, how much was paid before marriage, how much was paid together after marriage, whether there was an additional name and notarization, and how much was left in the loan. The down payment and premarital repayment paid by one party before marriage usually correspond to the contribution of that party.It is much more useful to list the account and time corresponding to each repayment than to say in general in court that "the house is provided together. If you do this account well first, negotiation and proof will be easy.

If the other party uses "I bought the house before marriage" to reduce the share you can get, don't rush to make qualitative concessions. You can put the claim on the specific compensation amount and payment method, and use the conditions such as installment and vacating time to talk about it. At the same time, pay attention to the revocable situation of the notarization agreement. If the other party claims to be coerced and cheated at that time, you should prepare evidence of the signing process. The notarized text, the communication record at the time of signing, and the presence of a third party are all key to stabilizing this agreement. With these materials at hand, it is difficult for the other party's claims to stand.

Notarized marital property agreement is stable, but "common" is not equal to "one person and half". Practical suggestions of Ningbo parties: when notarizing, try to specify the shares (e.g. 50% each, or according to the agreement on contribution and loan repayment), so as to avoid leaving discretionary space only by writing "common ownership"; Synchronously retain the original down payment transfer, loan repayment flow and notarial certificate as evidence when there is no clear share; If the loan is not settled, first confirm the conditions and procedures for name addition and transfer with the loan bank; the three steps of agreement, notarization and registration shall be carried out simultaneously to reduce the uncertainty caused by "notarization but not transfer. Writing the share into the notarial deed is the key to avoiding another share lawsuit in the event of a divorce.