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How to divide the housing accumulation fund in Ningbo divorce

Ningbo Author：LuXu WANG

As a long-term housing savings scheme, the housing provident fund is often overlooked in divorce cases—though it is not as conspicuous as real estate or bank deposits, it nonetheless represents substantial assets held in the account. To begin with the conclusion: Housing provident fund has the nature of wages; the portion actually obtained or that should have been obtained during the subsistence of the marital relationship constitutes joint marital property and shall be divided in accordance with the law upon divorce, with monetary compensation being the primary method rather than a direct transfer. Any balance already present in an individual account prior to marriage is considered personal property and should be excluded prior to division. Failing to address this item often amounts to leaving a substantial portion of the marital property to the other party.

1. Legal basis: Why is the housing provident fund considered joint property?

The first item of the first paragraph of the first paragraph of Article 1062 of the the People's Republic of China Civil Code stipulates that the wages, bonuses and labor remuneration obtained by the husband and wife during the existence of the marriage relationship are the common property of the husband and wife. The provident fund is jointly deposited by individual employees and units on a monthly basis, which is essentially deferred wage income, so it falls into the common property range. In this regard, Article 25 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code further clarifies: During the existence of the marriage relationship, the housing subsidies and housing provident funds actually obtained or should be obtained by both men and women belong to the Civil Code. Article 1062 stipulates that "other property that should be jointly owned".

disassemble three key words: "during marriage" refers to the period from marriage registration to divorce registration or effective divorce judgment; "actual acquisition" refers to the balance that has been paid into the account; "should be acquired" refers to the part that the unit has paid but not paid and should be paid into the account according to regulations-even if the account has not been paid at the time of divorce, as long as there is evidence to prove that the unpaid during this period, it can still claim the division. Correspondingly, the balance and interest in the respective accounts before the marriage registration belong to the personal property before the marriage and do not participate in the division.

Calculation method of 2. division range

The formula for practical calculation is: Public housing fund within the scope of jointly owned property = Account balance at the time of divorce (or the cumulative amount contributed up to the time of divorce) − Account balance as of the date of marriage. Specific steps:

  1. Retrieve the deposit details of both parties from the date of account opening, and draw a line at the date of marriage registration as the dividing point.
  2. The balance of the premarital account (including the premarital interest) is excluded in full and belongs to personal property;
  3. The sum of principal and interest paid monthly within marriage is divisible;
  4. In cases where there are unpaid contributions, employees may, by presenting the employment contract, pay stubs, social security records, and other relevant documents, claim that the employer’s outstanding contributions should be included within the scope of “amounts that ought to be received.”
  5. For those who have withdrawn provident fund (purchase, loan repayment, rental housing withdrawal, etc.) during marriage, it is judged by combining the withdrawal purpose-for the joint purchase and loan repayment, the money has been converted into the value of the house and should be dealt with in the division of the house property to avoid double calculation with the account balance.

It should be noted that the balance of the provident fund account includes the unit deposit part, and the husband and wife often have different deposit bases and proportions (the deposit proportion of the unit and individual is determined by the unit between 5% and 12% respectively), and the balance gap may be very large. When dividing, the "marital deposit difference" should be taken as the calculation basis, and the party with high balance should pay the compensation to the party with low balance, instead of transferring the accounts of both parties in half.

Linkage treatment of 3. purchase and loan repayment with accumulation fund

If the house is purchased with the accumulation fund during the existence of the marriage relationship, the house belongs to the joint property of the husband and wife, and the contribution of the accumulation fund should be included in the source of contribution when dividing the house; if the house is repaid with the accumulation fund, the part of the repaid loan and the corresponding appreciation must be reflected in the discount of the house. The most common error in practice is “counting the same sum of money twice”: claiming the withdrawn portion both in the division of the housing provident fund account balance and, at the same time, attributing the entire contribution to the withdrawing party in the property division. The correct approach is to unify the caliber-if the withdrawal of the provident fund has been converted into real estate or loan repayment, it will be removed from the account balance division and incorporated into the unified division of the value of the house.

The handling of the provident fund loan itself is also easy to be ignored: if the common housing loan is not paid off after divorce, the linkage between the loan repayment responsibility and the ownership of the house must be clearly defined in the agreement or judgment-who the house belongs to, who usually continues to repay the remaining loan, and the other party can claim compensation for the corresponding rights and interests of the joint repayment of the loan. If it involves off-site deposit, it shall be transferred or sealed according to the rules of the provident fund center where the account is located, and shall not affect the division conclusion.

4. Common Misunderstandings and Positive Solutions

Myth 1: "Provident fund is in my account and is my personal property". Positive solution: the part of the deposit after marriage has the attribute of salary, belongs to the joint property of the husband and wife, whether the account in the personal name does not affect the qualitative.

Myth No. 2: “You must withdraw your housing provident fund before it can be distributed.” Correct answer: Withdrawal of the housing provident fund is subject to conditions such as purchasing or renting a home; courts typically calculate the difference and require the party holding the fund to provide monetary compensation, without requiring an actual withdrawal.

Misconception 3: “All account balances are divided as joint property.” Positive solution: the pre-marital balance is eliminated first, only the marital deposit and interest part of the division.

Misunderstanding 4: "It is impossible to claim the provident fund that the unit has not paid". Positive: The part that "should be obtained" also belongs to the divisible scope, but evidence of the unpaid payment of the unit is required.

Misunderstanding 5: "If the divorce agreement does not mention the provident fund, it is tantamount to giving up". Correct answer: If certain jointly owned property was not addressed in the divorce agreement, a party may still file a post-divorce property dispute lawsuit after the divorce to seek a supplementary division of such property; however, attention should be paid to the statute of limitations and the preservation of relevant evidence.

5. operational steps

  1. Inquire about the deposit details and account balance of both parties during marriage: I can print at the provident fund service outlets with my ID card, or inquire through channels such as Zheli Office and Alipay; if the other party does not cooperate, I will apply to the court for obtaining from the provident fund management department in the lawsuit;
  2. take the marriage registration date as the boundary, and calculate the total amount of each marital deposit;
  3. Check whether to use the accumulation fund to purchase a house, repay the loan or withdraw within the marriage, and deal with it in the division of the house;
  4. Negotiation is made by the holder to pay the discount to the other party according to the difference in the marriage, which is written into the divorce agreement;
  5. If the negotiation fails, the request shall be specified in the divorce proceedings, and the court shall apply for the decision according to law after obtaining the deposit details.

6. the handling of off-site accounts, sealed accounts and supplementary provident fund

The practical difficulty in the division of provident fund often lies in the form of accounts. First, the remote account-if one party works in a foreign country before marriage and transfers to the local country after marriage, the pre-marital part is still personal property. The details of the remote deposit after marriage can be inquired through the provident fund center of the original deposit place. If the court applies for cross-regional transfer in divorce proceedings, the deposit unit and account code can speed up the progress. Second, sealed account-the sealed account balance caused by resignation and payment is still in my name, the division shall be handled according to the same rules, and the part deposited in marriage still belongs to common property and cannot be avoided on the grounds of "not being paid". Third, supplementary provident fund and enterprise annuity-some units have supplementary provident fund or enterprise annuity accounts in addition to statutory provident fund. Supplementary provident fund shall be handled according to the rules of housing provident fund, while enterprise annuity involves the division of accumulated amount in individual accounts, ningbo and other local practices will be included in the pension account together with the "other property that should be jointly owned" review, the divorce agreement omitted to write these accounts, after the divorce can still be claimed separately. On the inquiry path, I can print the full amount of details at the outlets of the provident fund center or online channels with my ID card, and apply to the court for transfer in the litigation where the other party does not cooperate. The unit's payment records and payroll can cross-check the deposit base to prevent one party from covering up the actual income with "low deposit base.

7. Link the declaration with "hidden assets" such as pensions and occupational annuities.

Housing accumulation fund is not the only "invisible common property". Article 25 of the interpretation of marriage and family compilation includes housing accumulation fund, basic pension and bankruptcy resettlement compensation into "other properties that should be jointly owned", which shows that legislators have long realized that this kind of account-type property is most likely to be missed. The practical proposal is to put the account property into the same "reconciliation table": provident fund (including supplement), basic old-age insurance personal account, occupational annuity and enterprise annuity, commercial insurance cash value, itemized account opening time, marital accumulation amount and current balance, with the marriage registration date as the boundary of the unified line. The division method of individual account of old-age insurance is different from that of provident fund: pension is the expected benefit received monthly after retirement. During divorce, the account is usually not directly transferred, but compensation is negotiated according to the expected benefit corresponding to individual payment in marriage, or balance is made at a discount when other property is divided. The provident fund is directly compensated based on the principal and interest paid in marriage due to the determination of the account balance and the calculation of the difference. Both are easy to leak and cannot be delayed-although it is feasible to make up points after divorce, the difficulty of obtaining account details and payment records increases with time, and may lead to the risk of the other party transferring the balance. It is most convenient to find out once during divorce.

The division of 8. provident fund loan house and loan change

For houses purchased with provident fund loans, the property ownership and loan processing must be linked when dividing, otherwise there will be a strange phenomenon that "the house belongs to me and the loan is still in the name of the other party. The operation sequence is usually as follows: the first step is to determine the ownership and compensation of the house-the house is awarded or agreed to one party, and the acquiring party shall pay compensation to the other party according to the net value of the house after deducting the remaining loan; The second step is to handle the change of the loan subject-the change of the main lender of the provident fund loan must be reviewed by the loan bank and the provident fund center, and the income and credit information of the acquiring party must meet the requirements, if it does not meet the requirements, it is often necessary to settle the loan before transferring the account, or negotiate the replacement of the commercial loan by the acquirer; the third step is to register the change of property rights-after the settlement or change of the loan is completed, the transfer registration shall be carried out at the real estate registration center with the effective document, and the relevant taxes and fees shall be handled in accordance with the tax regulations. The treatment of portfolio loans (provident fund and commercial) is the same, both parts of the loan to implement the undertaking program. Practical tips: for the transfer of houses with outstanding loans and mortgaged property rights, the operating standards are slightly different from place to place. for divorce by agreement, "the cooperative obligation and time limit for loan repayment or subject change" should be stated. for divorce by litigation, the court can apply for a clear decision. Don't just agree on the ownership of the property and miss the loan to undertake, which is tantamount to leaving a hidden debt for the future.

Special treatment of 9. payment, one-time deposit and withdrawal from account cancellation

There are also several types of special changes in the provident fund account that need to be checked together at the time of division. First, pay back within marriage: if the unit pays back the historical arrears, it shall be judged according to the corresponding period of payment back-the corresponding paid back within marriage belongs to common property, and the corresponding paid back during premarital period belongs to personal property, not only depending on the entry time; Second, one-time deposit or large amount transfer: if individual units make one-time payment or transfer to large amount for employees, the corresponding period and source of payment shall be verified first. One-time deposit within marriage shall be handled jointly, however, it can be proved that it is paid back with pre-marital funds or pre-marital funds. Third, withdrawal from account cancellation: if one party suddenly withdraws provident fund from the account before and after divorce, the balance after withdrawal will return to zero, which is indivisible on the surface. However, if the withdrawal time falls within marriage and has no legitimate use (prescribed use such as house purchase, rental, serious illness, etc.), it may constitute the transfer of common property, the other party may claim to divide the original balance according to the withdrawal record or to deal with it less when it is divided. Fourth, separation sealing and off-site transfer: the balance of the sealed account is divided as usual, and the transfer record is transferred to the provident fund center where it is transferred. Checking account change records (including withdrawal, cancellation, transfer of each flow) is a key action to prevent "invisible loss", litigation can apply to the court to obtain the complete flow.

Class Case Reference: The court held that the joint property and income of husband and wife that were not handled at the time of divorce should be handled according to law: the economic and practical house should be awarded to the plaintiff, and the plaintiff should compensate the defendant 370000 yuan; The proceeds from the transfer of the resettlement house kept by the defendant compensate the plaintiff 15000 yuan as appropriate; The land income and compensation for land acquisition shall be compensated by the defendant according to 2/3 shares. Trial Court: Zhejiang Yuyao Municipal People's Court Case No.:(2019) Zhejiang 02

81Minchu No. 1098

10. FAQ

Is the housing provident fund considered personal property and therefore not subject to division?

No. The provident fund deposited after marriage belongs to the joint property of the husband and wife, and the premarital part is the personal property, and the premarital balance is excluded when dividing.

The provident fund has not been withdrawn, how to divide it?

Division by means of discounted compensation: The party with the higher account balance shall pay the other party a compensatory sum equal to the marital‑period difference, without any actual withdrawal or transfer of funds.

How to calculate the divorce of the house bought with the accumulation fund?

If the house is purchased by using the accumulation fund within marriage, the house belongs to the common property, and the contribution of the accumulation fund is included in the source; the part that has been withdrawn and repaid is merged into the value of the house and divided uniformly to avoid double counting.

Can I claim unpaid housing provident fund contributions owed by the employer?

Yes. The part that "should be obtained" and not obtained is divisible, but must provide evidence of unpaid labor contracts, payroll, social security records, etc.

If the housing provident fund was overlooked during the divorce, can it still be divided later?

Can. If a missing score is found after the divorce by agreement, the claim for compensation for the post-divorce property dispute may be filed within the statutory period, and attention shall be paid to the timely claim and the deposit records shall be kept.

XI. Lawyers' Practical Experience

provident fund is the most easily missed money in divorce: it is not conspicuous, but it is actually lying in the account, and the part that belongs to the deposit after marriage is usually common property. The idea of division is not to divide it into half, but to calculate the scope first and then determine the compensation. The practice is to retrieve the deposit details of both parties from the opening of the account, and draw a line with the date of marriage registration: the balance of the account and interest before the marriage belong to the individual and do not participate in the division.How to draw this line and when to calculate it directly determines how much more points can be scored in the end.

From the experience of handling cases, the earlier the record is extracted, the more active it is. The personnel and deposit information of many units are not mastered by one party and will not be transferred until the court session is held. The other party may have already canceled the account, sealed up in different places or deposited by a new unit, which takes time and effort to check. Therefore, as soon as there is a sign of divorce, you should apply for withdrawal of deposit details and make a backup. If it involves off-site accounts, sealed accounts or supplementary provident funds, you should also find out. The division of the provident fund is usually realized in the form of discount compensation, rather than direct transfer, so the account balance should have a mutually agreed point-in-time caliber, to avoid the side said according to the divorce, while the side said according to the caliber of the court.

We should also separate the two accounts of the provident fund and the house bought with it, and don't miss any of them. The common property of the public reserve metal deposited after marriage, and the provident fund loan after buying a house, which leads to the ownership of the house, who will continue to repay the remaining loan, and how to make up for the value-added corresponding to the joint repayment after marriage, the former is the compensation of the account balance, the latter is the compensation of the value of the house, the two sets of algorithms can not be mixed into a provident fund are you. In addition, provident fund often appears together with invisible property such as pension and occupational pension. When claiming rights, it is better to declare and provide evidence together with several items, so as not to sue separately after omission and fight one more lawsuit in vain.

housing accumulation fund is a common property project "easily missed" in divorce division. Key points of three sentences: to the marriage registration date as the boundary before marriage after marriage. In terms of action, before divorce, each party shall print the deposit details and reconciliation, write the provident fund into the agreement at the negotiation stage, and voluntarily apply to the court for the other party's details at the litigation stage to avoid giving up in vain because of "invisible.