Ningbo before marriage to buy a house in the name of the woman, divorce how to divide

Before marriage, the man's contribution and the house registration are under the woman's name. The core of this kind of dispute is not who is the registered nominee, but what is the true meaning of both parties at the time of purchase. Whether it's a joint purchase, a loan, a gift, or a loan to buy a house, the four qualitatively correspond to four completely different results. The name of the registration is only a legal presumption that can be overturned by evidence to the contrary.

Therefore, the first step in dealing with such cases is not to argue about the legal provisions, but to return to the evidence itself: from whose account the purchase money was spent, how the two parties communicated at that time, why the title certificate was registered in one person's name, and who repaid the loan and decorated after marriage. These facts together, in order to restore the true qualitative.

1. legal basis

article 1063 of the Civil Code stipulates that the property determined in a will or gift contract to belong only to one party shall be the personal property of one of the spouses. If it can be proved that the gift to the registered individual is clearly stated at the time of the capital contribution, the house belongs to his personal property and the other party has no right to claim division.

Article 108 of the Civil Code stipulates that if the co-owners do not agree on the real or movable property in common, or if the agreement is not clear, it shall be deemed to be shared by shares, except that the co-owners have family relations. This article provides a way of thinking for situations where the share of joint contributions is unknown.

The first paragraph of Article 29 of the (I) on the interpretation of the Civil Code on the application of the Marriage and Family Code of the Supreme people's Court stipulates that if the parents contribute to the purchase of houses for both parties before marriage, the contribution shall be recognized as a personal gift to their own children, unless the parents explicitly state that the donation is to both parties. It should be noted that this article is aimed at parental funding, which is not the same as the situation where one party buys a house for the other party with its own funds, and is often misquoted in practice.

2. four possible qualitativ e, the results vary widely

the first is a joint purchase. The two parties jointly contribute, jointly negotiate the purchase of a house, even if registered in the name of one party, is often identified as common property or shared, the proportion of capital contribution is an important reference for division. The second is the gift, if it can be proved that the funder clearly stated that the property will be donated to the registrar and the registration is completed, the house will be owned by the registrar.

The third is borrowing, the purchase of the house is identified as a loan, the registration party only need to return the principal and interest, does not involve the division of the house. The fourth is to buy a house by name. If there is a written agreement or other conclusive evidence, the actual investor can claim that the house belongs to him. The gap between the four qualitative is so great that the organization of evidence must revolve around one of the main lines and must not advocate multiple sets of contradictory statements at the same time.

How to organize 3. evidence

the primary evidence is the source of the purchase, including bank flow, transfer records, purchase contract and online sign filing information to confirm the time, amount and payment path of the contribution. The second is the communication record between the two parties on the purpose of buying a house and the ownership of property rights. Chat records, recordings, and written agreements can all be used as evidence to determine the true meaning. Ningbo courts have higher requirements for the adoption of electronic evidence. According to Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence have many defects in proof and are difficult to adopt. Chat records and audio recordings should be kept in the original carrier, and notarization preservation can be done if necessary.

Once again, after marriage, if the husband and wife's joint property to repay the loan or decoration, the other party can jointly invest part and its value-added claim compensation. Finally, the evaluation materials, the present value of the house, the proportion of capital contribution, the amount of joint investment after marriage, all need to have an accounting basis, otherwise even if the qualitative establishment, the split amount is difficult to land.

4. specific to Ningbo for handling: online visa filing, fund supervision and registration files

specifically to Ningbo, the real estate registration center in the district (county, city) where the house is located can obtain the registration book, online signature filing and mortgage registration information to confirm the signing time, payment node and registration nominee, which is the key basis for distinguishing between pre-marriage and post-marriage and judging the application of the rules. The entry and exit records of the transaction funds supervision account reflect the actual source of the down payment.

Inquiries involving houses in the name of others generally need to be obtained by a court investigation order, a lawyer's investigation letter, or by the court after filing a case. In practice in Ningbo, family cases are generally assigned to mediation before litigation. If the financial link materials can be sorted out before litigation, it will be easier to reach an agreement on the amount of compensation at the mediation stage and reduce repeated cross-examination in litigation.

5. common mistakes

one of the misconceptions is that the registration is in whose name, and the presumption of registration can be overturned if there is evidence that the other party actually contributes. The second misunderstanding is that the house bought before marriage is all personal property. If the two parties jointly invest in the house before marriage, it is often recognized as common property or shared by share in judicial practice.

The third misunderstanding is that the full amount of capital contribution registered in the name of the other party can also be returned, if there is no borrowing name to buy a house or loan evidence, this situation is easy to be identified as a gift. The fourth mistake is that rights cannot be claimed without a written agreement. Transfer records, chat records, witness testimony, etc. can also be used as the basis for determining the true meaning.

6. operational steps

the first step is to sort out the payment path of the purchase price, fix the bank flow and online sign filing information; The second step is to sort out the communication records of both parties on the purpose of purchasing a house and the ownership of property rights. The third step is to clarify whether the case should advocate joint purchase, loan, loan or gift, and organize evidence around a main line. The fourth step is to calculate the proportion of capital contribution, the present value of the house and the joint investment after marriage, first, through pre-litigation mediation to negotiate attribution and compensation, mediation failed to prosecute and apply for an investigation order to strengthen the evidence.

It is also a reminder that claims and evidence must be self-consistent. If, on the one hand, it is a claim to borrow money, and on the other hand, it is a claim to jointly repay the loan after marriage and require the division of the house, the two statements conflict with each other logically, which will weaken the credibility of the whole, and the main attack direction should be determined before the prosecution.

Practical Experience of 7. Lawyers

before marriage, the man's contribution and the house are registered in the woman's name. When divorcing, the parties often directly focus on "whose name is on the certificate". However, from the experience of handling cases, the name of registration is only a legal presumption, which can be overturned by contrary evidence. What really determines the result is the true meaning of both parties at that time: whether to buy a house together, borrow money, give money, or buy a house under a name. The four kinds of qualitative correspond to four completely different treatments, so the first step is not to dig out the provisions, but to go back to the evidence itself-from whose account the money was spent, how to communicate at that time, why it was registered under one person's name, and who repaid the loan and decorated it after marriage.

The evidence should be organized around one main line, and it is important not to advocate several sets of contradictory statements at the same time. The focus is on the bank flow and transfer records of the source of the purchase money, the purchase contract and the online signature filing information, which is used to confirm the time, amount and payment path of the capital contribution. The second is the communication record between the two parties on the purpose of purchasing a house and the ownership of property rights. The situation of parents' contribution is not the same as that of one party buying a house for the other party with its own funds. The former is usually regarded as a gift to their own children, and do not mix the two types of materials. Only when the evidence is pieced together can we restore the true nature and decide whether to advocate division and how much to advocate.

Procedures and negotiations should be clear in advance. If you advocate a joint purchase, you can combine the proportion of capital contribution to strive for a share or discount compensation, if it is identified as a gift or loan, the direction of the claim is completely different. When negotiating, we should seize the fact gap that the other party cares most about, such as unclear nature of capital contribution and unclear communication record, which is used to push the discount to settle. On the other hand, one should pay attention not to make statements contrary to the true claims in the negotiation, which will become evidence in the hands of the other party. Avoid the pit tip: don't expect to rely on the "name in my" or "money is my" single fact to determine the outcome, the outcome of such cases almost all in the chain of evidence.