Insights

Ningbo man's parents make a down payment to register the woman's name, how to divide it

Ningbo Author：LuXu WANG

If the man's parents make a down payment before marriage and the house is registered in the woman's name, they cannot draw a conclusion only by registration or only by capital contribution. The core lies in finding out the true meaning of the house purchase. If there is evidence that the capital contribution is based on the purpose of the two parties to buy a house together and live together, the house is generally treated as the joint property of the husband and wife, and the division takes into account the contribution of the capital contribution, the length of the marriage and other factors, and is not necessarily divided equally.

If the evidence shows that it is only registered in the name of the woman due to the man's credit, loan qualification, etc., and the two parties do not agree to use the house as a common property, it may fall into the review framework of the loan registration, and the rights and interests of the funder need to be resolved through the path of confirmation or return of the capital contribution. These two kinds of qualitative directly determine the choice of litigation scheme.

1. legal basis

article 1063 of the Civil Code stipulates that the premarital property of one party is the personal property of one of the husband and wife; the first paragraph of Article 29 of the (I) on the Interpretation of Marriage and Family clearly states that before the parties get married, the parents contribute to the purchase of houses for both parties., The capital contribution shall be deemed as a gift to one's own children, except where the parents clearly indicate that the gift is given to both parties. This is the starting point for dealing with pre-marital parental contributions.

If the house is recognized as the joint property of the husband and wife, the principle of taking care of the rights and interests of the children, the woman and the non-fault party in article 1087 of the Civil Code shall apply. In addition, according to the second paragraph of Article 5 of the (II) on the interpretation of marriage and family, if one party transfers all its houses to the other party or both parties, and the marriage relationship lasts for a short time and the giving party has no major fault, the court may decide that the house belongs to the giving party, and determine whether to compensate and the amount of compensation by combining various factors.

2. core points

the focus of the review of such cases is the expression of meaning and the evidence of the contribution, which together determine the nature and share of the house.

1. Identification of true meaning

the court will combine the background of the purchase, the process of capital contribution, the reason for registration, the use after marriage and the repayment of the loan to judge the consent of the purchase. If the man is unable to apply for a loan due to credit problems and the woman is the nominal buyer, the two parties have a clear communication record or written explanation, usually supporting the idea of borrowing a name or jointly buying a house.

Written evidence is the most powerful, such as the gift agreement, IOU, family meeting minutes, chat records about the suite is for two people to get married. In the absence of any written information, the court will turn to objective performance, such as who signs the contract, who handles the loan, who actually lives, and who bears the subsequent repayment of the loan.

2. Proof and conversion of the proportion of capital contribution

the funder needs to provide a complete chain of funds: vouchers for the transfer of funds from the parent's account to the developer or seller, down payment invoices, and the correspondence between the time of payment and the time of signing the purchase contract. When the amount is large, the source of funds should also be stated to avoid being identified as other funds due to unclear sources.

The part of joint loan repayment after marriage and the corresponding value-added shall be treated with reference to the spirit of Article 78 of the (I) of Interpretation of Marriage and Family, that is, the party who has not obtained the house can obtain compensation for joint loan repayment and corresponding value-added. If the house is ultimately identified as the woman's personal property, the man's parents' contribution may be converted into a request for the return of the loan or the return of unjust enrichment, the path is completely different from the division of the common property.

3. boundary conditions

the agreement in the divorce agreement takes precedence. If the parties have made clear the ownership of the house through a written agreement at the time of marriage or divorce, and there is no fraud or coercion, the court generally respects the agreement and no longer reviews the background of the contribution. Therefore, the wording of the agreement should be clearly directed to specific houses and avoid the use of vague expressions.

Attention should also be paid to third-party interests. If the parents' contribution is characterized as a loan, whether it belongs to the joint debt of the husband and wife or the personal debt of one party, it is necessary to judge the purpose of the loan and the intention of both parties, and if the house has been sold to a bona fide third party and the registration is completed, the other party is usually unable to recover the original, can only claim the corresponding price. The court will also consider policy factors such as purchase restriction qualifications and provident fund loans.

Practical Experience of 4. Lawyers

in case of a dispute over "the capital contribution is made by the man's parents and the real estate is registered in the woman's name", neither the case can be decided by registration nor by the capital contribution list. The core lies in restoring the true meaning of the house purchase. Therefore, the first thing is to spread out the evidence: the transfer voucher and remarks contributed by the parents, the purchase contract and payment flow, the chat records of the communication between the two parties and their elders at that time, and who is paying back the loan. Only by putting them together can we see whether the money is for two people to buy a house together or whether it is registered under a name due to credit investigation, loan qualification and other reasons. Qualitative impact on the overall situation, do not rush to conclusions.

After the characterization, the litigation path should be followed. If the evidence points to the agreement of the two parties to buy a house and live together, it is usually treated as common property, and the contribution of the contribution and the length of the marriage will be taken into account in the division, not necessarily a simple half-and-half. The two paths request different, the focus of proof is different, choose the wrong direction, no matter how complete the material is, it is difficult to work, so before filing a case, you must first finalize the qualitative general direction with the agent.

There are also articles on the negotiating table. The biggest concern of the contributing parents is often "the money has been wasted", while the other is concerned about whether the property under the name can be kept. Can follow this psychological design plan: the actual investor to get back the corresponding share or discount compensation, in exchange for the other party to cooperate with the transfer or give up part of the claim. No matter which way you go, it is always the first to fix the evidence of financial transactions as soon as possible.