How to guarantee personal property for buying a house with pre-marital loan in Ningbo

One party took out a premarital loan to buy a house and registered it in his own name, and after marriage, he used the joint income of the husband and wife to repay the loan, how to identify the house in the event of divorce? The conclusion starts with: the house itself is generally awarded to the registrant, and the loan that has not yet been returned is its personal debt, but the amount paid for the joint repayment of the loan after marriage and the corresponding value-added portion of the property belongs to the property is the joint property of the property, and the property, and the registrant should be compensated.

Therefore, if you want the whole suite, including loan repayment and value-added, to belong to the individual, it is not enough to rely on the name of registration. You need to take the initiative to arrange: to repay the loan with your pre-marital personal property and not mix it with your post-marital income, to repay the loan on your behalf and to clarify the purpose of the money, or to sign a marital property agreement to make a written agreement. Each of the three paths has its own applicable conditions. Before choosing, see their short boards clearly.

Legal basis for 1.: how to calculate compensation and how to write the agreement

article 1063 of the Civil Code stipulates that the premarital property of one party is the personal property of one of the spouses, which is the basis for the house itself to be registered. Article 78 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code further clarifies that if one of the spouses signs a real estate sales contract before marriage, pays the down payment with personal property and makes a bank loan, repays the loan with the joint property of the husband and wife after marriage, and the real estate is registered in the name of the down payment payer, the real estate shall be handled by agreement between the two parties at the time of divorce.

If the agreement fails, the people's court may decide that the real estate belongs to the registered party, and the loan that has not yet been returned is the personal debt of the registered party of the real estate; the mutual repayment of the loan after marriage and the corresponding property appreciation part shall be based on the Civil Code. According to the principle stipulated in the first paragraph of Article 1087, one party to the real estate registration shall compensate the other party.

If it is desired to change the attribution by agreement, the basis is article 1065 of the Civil Code: a man and a woman may agree that the property acquired during the marriage and the premarital property shall be owned by each, jointly or partially owned by each or partially jointly owned, and the agreement shall be in writing. If there is no agreement or the agreement is not clear, the statutory common property system shall apply.

2. three paths to maintaining personal attributes

1. Premarital property special account repayment, the key is to prevent mixing.

The safest way is to open a separate account for the funds used to repay the loan before marriage, and deduct the monthly contribution from the account every month after marriage, and the account does not receive any post-marital income. As long as the financial link is clear and identifiable, the repayment portion is not easily recognized as being repaid with common property.

The difficulty lies in the implementation. Once married wages, business income or other payments are entered into the account, the mix-up occurs, and it is difficult to distinguish the source from one after another. Therefore, in addition to the earmarking of the account, the deposit certificate at the time of opening the account, the certificate of the source of funds before marriage and the monthly deduction record should be kept to form a complete closed loop.

2. Parental return, marital agreement and name addition.

It is common practice for parents to repay the loan on their behalf. In operation, parents should be allowed to transfer the money to the repayment account on a regular basis and indicate the purpose, while retaining the parents' proof of the source of funds. It should be noted that, in the absence of a written statement, there is a possibility that the parental contribution will be recognized as a gift to both spouses, which will instead return the repayment portion to the common property.

The marital property agreement has the most direct effect and should be in writing, stating the ownership of the house, the responsibility for repaying the loan, the treatment of the value-added part and the compensation arrangement in the event of divorce. In contrast, adding names after marriage will directly change the nature of the house, which belongs to the opposite operation of maintaining personal attributes, and the two cannot be pursued at the same time.

3. boundary conditions: these practices weaken personal attributes

the first is to add name or change registration after marriage. Once the spouse becomes a registered co-owner, the house is in principle converted to the joint property of the husband and wife, and the previous arrangement on personal property is largely ineffective, which is the most common reverse operation in practice.

The second is the mixing of funds. Premarital deposits and post-marital income in the same account, multiple transfers, will lead to pre-marital property is difficult to distinguish, claiming personal property can not be proof. The third is that the parents' repayment of the loan is not explained in writing, which is recognized as a gift to both parties, and the repayment part is then included in the common property.

The fourth is that the agreement is not in written form, or the agreement is vague and lacks specific property direction and calculation methods, which are difficult to use as a basis in litigation. In addition, when the house still has a loan outstanding, even if the agreement belongs to one party, it is still necessary to communicate with the mortgagee to change, otherwise there may be a situation where the agreement is valid but the transfer is blocked.

4. specific to Ningbo: registration, agreement and tax caliber

if you go to Ningbo for separate registration of house purchase before marriage, you should determine the registered nominee when signing the sales contract and handling the real estate ownership certificate, and the relevant materials should be submitted to the real estate registration center of the district (county, city) where the house is located. If you need to add or subtract your name after marriage, you should also apply to the real estate registration center. If the house still has a mortgage, you need to obtain the consent of the mortgagee or release first, each district has slightly different requirements for reservation methods and material details. It is recommended to ask for clarification once in advance.

Marital property agreements do not legally require registration or notarization to take effect, but in practice in Ningbo, agreements involving real estate ownership, both parties often choose to submit them simultaneously at the time of registration, or notarize them as needed to enhance their probative power. Taxes and fees arising from name addition and name reduction shall be subject to the reply of Ningbo competent tax authorities. Before handling, confirm whether to levy and the required materials, and it is not appropriate to copy foreign practices.

The marriage registration offices in all districts of Ningbo do not review the property agreement when handling marriage registration, but if the content of the agreement involves the ownership of the house, it is recommended to keep it consistent with the real estate registration information. From the general practice reflected in the public judgment of the Ningbo court, the party who advocates repaying the loan with personal property can provide special account running water, premarital deposit certificate and parents' repayment records, and its claim is more likely to be accepted.

5. common mistakes

one of the misunderstandings is that the registration of buying a house before marriage in one's own name is a complete personal property, and the joint repayment of the loan after marriage and the corresponding value-added are still common property, and the registration name cannot eliminate the obligation of compensation. The second misunderstanding is that it is also an individual to repay the loan with his own salary. In the absence of a written agreement, the salary income after marriage belongs to the joint property of the husband and wife.

The third misconception is that it is okay to put pre-marital savings and post-marital income together, and it is extremely difficult to prove it after mixing. The fourth misunderstanding is that the signing of the agreement will certainly be able to fight against the third party, the husband and wife property agreement mainly binds both husband and wife, whether the external can fight creditors also need to combine the debt formation time, whether to know and other specific judgments.

6. operational steps

the first step is to open a separate account for the funds used to repay the loan before marriage, keep the account opening and deposit source certificates, and strictly not mix with income after marriage; the second step is to save the purchase contract, down payment voucher, loan contract and real estate ownership certificate And other original materials; the third step, if the parents repay the mortgage on behalf of the parents, let the parents transfer regularly and indicate the repayment of the mortgage, while keeping the parents' capital source records, sign a written marital property agreement, stating the ownership of the house, the responsibility for repayment of the loan and the treatment of the value-added part; The fifth step, if it is really necessary to add a name, first communicate with the mortgagee to release the mortgage, then go to the real estate registration center for handling, and confirm the tax caliber to Ningbo competent tax authorities in advance; The sixth step is to fix the meaning of both parties through a written agreement as soon as possible to avoid holding different opinions in the future.

Finally, a reminder that any arrangement must be legal and truthful. Post-signing agreements, fictitious debts or reverse dates to avoid division, once identified, not only fails in purpose, but may also be underscored by dishonest conduct at the time of division.

Practical Experience of 7. Lawyers

pre-marital loans to buy a house, property ownership and post-marital repayment compensation are two independent issues, want it to try to maintain personal property attributes, the key is not to let the common property involved. The ideal state is that the buyer pays the down payment and subsequent monthly payment with the personal property before marriage, the personal account is separated from the family common account, the loan repayment is fixed from the exclusive account, and the clear flow is retained. As long as the loan is repaid with common property after marriage, the corresponding repayment amount and appreciation will be compensated to the other party, which is difficult to exclude by verbal agreement.

To further fix the vesting, you can resort to a written agreement. Both parties can sign an agreement before or during marriage, specifying that the property belongs to the buyer, how to arrange the repayment of the loan after marriage, and whether to compensate the other party. As long as the content is clear, voluntary, and does not harm the interests of the third party, it will usually be respected. If both parties agree to jointly bear the repayment of the loan and the buyer retains the property right, the calculation method of compensation will also be written into it to avoid saying each other in the future. Adding names means the enhancement of common attributes. Whether and when to add names must be clearly thought out before starting work.

Also keep in mind a few practices that can weaken personal attributes: mixing parental contributions with joint income in one account after marriage to repay the loan, using the income from the joint venture to repay the loan, or registering the property in the names of both parties. These will make the claim of "personal property" more difficult. When it comes to division, if the attribution is difficult to change, focus on clarifying the compensation for joint repayment and value-added; the party with a complete chain of evidence will be much more proactive at the negotiating table. On weekdays, keeping vouchers and separating accounts according to this idea is far easier than rummaging through memories and documents when things happen.