Should Ningbo parents pay back their money to buy a house and divorce?

When children buy a house after marriage, their parents contribute, whether the money needs to be repaid in the event of divorce, or whether the gift does not need to be returned, is one of the most common points of contention in family cases. The general principle of judgment is: there is an agreement from the agreement; if there is no agreement or the agreement is unclear, it shall be dealt with in accordance with the principles stipulated in the fourth paragraph of the first paragraph of Article 1062 of the Civil Code, that is, in principle, it shall be recognized as a gift to both husband and wife.

But this presumption is not irrebuttable. If the parent is able to provide a transfer voucher, an IOU, or other prima facie evidence of agreement on the loan, and the other party cannot prove that the money is in the nature of a gift, the court may consider the loan as a combination of factors such as the timing of the contribution, the purpose of the money, the relationship between the two parties, and whether there is any repayment behavior. The key is the evidence, not what the children or parents say after the fact.

1. legal basis

article 667 of the Civil Code stipulates that a loan contract is a contract in which a borrower borrows money from a lender, returns the loan at maturity and pays interest. The core of the determination that a lending relationship is established is the existence of a mutual agreement on lending and the actual delivery of the money, both of which are indispensable. If there is only the fact of transfer and the lack of agreement to borrow, it cannot be directly recognized as a loan.

The second paragraph of Article 29 of the (I) on the Interpretation of Marriage and Family stipulates that after the parties get married, if the parents contribute to the purchase of houses for both parties, they shall be dealt with in accordance with the agreement; if there is no agreement or the agreement is not clear, it shall be dealt with in accordance with Article 1062 of the Civil Code. The principle stipulated in the fourth paragraph of the first paragraph shall be dealt. The third paragraph of Article 1063 of the Civil Code stipulates that the property determined to belong to only one party in a will or gift contract is personal property.

Regarding the ownership and compensation of the house itself, Article 8 of the current Marriage and Family Interpretation (II), aiming at the situation where one parent contributes to the house purchase after marriage, establishes the idea of dealing with factors such as the duration of marriage, living together and giving birth to children, divorce fault, contribution to the family, etc. on the basis of the source and proportion of capital contribution, and divides the nature determination and share calculation into two steps.

2. core points

1. The nature of capital contribution: the game of loan agreement and the presumption of gift.

The party claiming the loan needs to prove the existence of a loan agreement. The most convincing evidence is the debit note and loan agreement formed at the time of capital contribution, followed by the explicit remark "loan" at the time of transfer, the collection record and partial repayment record after that. These materials are formed before the dispute occurs and have high credibility.

The party advocating the gift can respond from several angles: whether the contribution coincides with the purchase payment node, whether the parents have similar funding practices before, whether there is a written or chat gift intention, whether the payment is directly paid to the developer or seller's account. If the contribution is made expressly to one of the children, the share corresponding to the contribution may also be recognized as personal property.

2. The problem of the probative force of re-signing IOUs

the most controversial thing in practice is the IOU signed before and after the divorce. The court usually combines the timing of the contribution, the purpose of the money, the relationship between the parties, the timing of the formation of the debit note, and the availability of other evidence to support it, rather than directly determining that the lending relationship is established on the basis of a single debit note. If you sign it afterwards and lack other evidence such as transfer notes and dunning records, the possibility of being accepted is low.

On the other hand, if the re-signed IOU can be confirmed with the communication record at the time of the contribution, for example, the two sides have discussed in the chat "lend you first" and "later have plenty of money to repay", then even if the IOU is formed afterwards, it may be considered that the loan agreement exists from the beginning. This shows that the preservation of daily communication records is very critical.

3. boundary conditions

if the loan is used to purchase a house where the husband and wife live together, it will generally be recognized as a joint debt of the husband and wife, which will be repaid by both parties, not only by one of their children. Conversely, if the loan is expressly agreed to be a personal debt and is not used for family living together, it may be considered a personal debt, but the evidentiary requirements are higher.

It should also be noted that the identification of the nature of capital contribution and the identification of housing ownership are two issues. Even if the capital contribution is recognized as a gift to one of the children, if the house is registered in the name of both spouses, the house itself may still be common property, but the source of the gift is reflected in the split share. In addition, if the parent's contribution is expressly given only to one of his or her children, the corresponding share may be treated as personal property.

Practical Experience of 4. Lawyers

whether the parents' contribution is a loan or a gift is the core of such disputes, and the principle of judgment is "if there is an agreement from the agreement, there is no agreement or the agreement is not clear, in principle, it is recognized as a gift to both husband and wife". However, this presumption is not rebuttable: if the parent can provide a transfer voucher, IOU or other evidence of consent to the loan and the other party cannot prove the gift, the court may consider the loan to be a loan in the light of the timing of the contribution, the purpose of the money, the relationship between the parties and the availability of repayment. Therefore, don't take "if you don't write an iou, it must be a gift" as a conclusion. The key is always evidence.

In operation, the whole process of capital contribution should be fixed as soon as possible: transfer records, payment receipts, communication records at that time, whether there is any repayment behavior, and whether parents and children have the same opinions about the money. The meaning of the contribution often determines the nature-whether it is a one-time gift or to help with turnover, whether it is for the young couple or only for their own children, will affect the determination. If one party writes the IOU afterwards, or the caliber is obviously inconsistent with the time, the credibility will be greatly reduced. Therefore, the original evidence is much more important than the statement afterwards, and it can withstand the other party's questioning.

Strategy and prevention should be front-loaded. Parents should think clearly and leave written evidence at the time of contribution, making clear whether it is a gift or a loan, to whom it is given, and whether there are any additional conditions, so as to avoid holding different opinions in the future. In divorce negotiations, the party claiming to borrow should show evidence of agreement to borrow, while the party claiming to give should point out the lack of intention to borrow. It should also be noted that even if it is identified as a gift, it is not necessarily for both parties-if it is directed at giving only one's own children, the nature is different. It is the most convenient protection for all parties concerned to make clear the nature of the contribution at the time of contribution.