Ningbo parents make a down payment divorce how to divide

Buying a house after marriage, one parent making a down payment, and registering the property in the name of both husband and wife, in which case the house belongs to the joint property of husband and wife in principle. However, common property is not equal to a 50-50 division, and the court, in determining their respective shares, will combine factors such as contribution, duration of marriage, joint repayment, child support and care for the no-fault party, with the result that it may favor the children of the contributing party or may be closer to parity, depending on the circumstances of the case.

The most problematic thing in practice is that the parents did not have any written agreement at the time. Whether it is a gift or a loan, whether it is a gift to one of their own children or both parties, after the fact, the burden of proof and the standard of proof become the winner and loser. Therefore, the core battlefield of such cases is often not the legal provisions, but whether the flow of funds and the meaning of the time can be restored.

Basic Caliber of 1. Law and Judicial Interpretation

article 1062 of the Civil Code stipulates that the property inherited or donated by the husband and wife during the existence of the marriage relationship shall be the joint property of the husband and wife, except for the property determined to belong only to one party in the will or gift contract. If the parents pay for the purchase of the house after marriage and there is no special agreement, it falls into the scope of the principle determination of this article.

The interpretation of the Supreme People's Court on the application of the Civil Code of Marriage and Family (I) Article 29, paragraph 2, further clarifies that if the parents of the parties contribute to the purchase of houses for both parties after marriage, 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 the Civil Code. The principle stipulated in the fourth paragraph of Article 1062, that is, in principle, it is recognized as a gift to both husband and wife. This is the opposite of the rule of parental funding before marriage and is most often confused in practice.

The basis for division is Article 1087 of the Civil Code: At the time of divorce, the common property of the husband and wife shall be dealt with by agreement between the two parties. If the agreement fails, the people's court shall, in accordance with the specific circumstances of the property, take care of the rights and interests of the children, the woman and the no-fault party. Principle judgment.

2. gift or loan, look at three key nodes

the first node is whether there is a written voucher for the contribution at that time. If there is a debit note, a transfer note indicating the loan, or if there is a record of repayment and reminder, the likelihood of being identified as a loan is significantly higher. The second node is how long the contribution lasts and how much it is. There will be a difference in judgment between occasional and symbolic support and a one-time large contribution. The third node is the first to claim borrowing in divorce proceedings, never mentioned in years before, and is usually more difficult to get support.

Conversely, when the parents made the capital contribution, they clearly stated that they were buying a house for the young couple, and the money went directly into the developer's regulatory account and never claimed to be returned for many years, which was deemed to be more likely to be a gift to both parties. The standard of judgment is always the objective facts presented by the evidence, not the claims of either party afterwards.

How to determine the 3. share: capital contribution is not the only factor.

Contribution is an important consideration, but not the only factor. The joint repayment of the loan after marriage and the corresponding value-added of the house, no matter in whose name it is repaid, belong to the joint property of the husband and wife and shall be divided according to law. The length of the marriage, whether to have children, one party's care for the family, whether there is a fault, will also enter the court's weighing.

According to the general practice reflected by the public judgment of Ningbo court, under the circumstances that the parents' contribution accounts for a high proportion of the down payment, the marriage lasts for a short period of time and the loan is not repaid jointly, it is relatively common for the court to give appropriate more points to the children of the investor. However, when the marriage lasts for many years, both parties repay the loan together and raise the children together, the share gap tends to narrow. This is only a general tendency, and specific cases still need to be judged in combination with evidence.

4. specific to Ningbo for handling: how to check the capital link and registration files

specific to Ningbo, the flow of funds can be restored through several clues. The real estate registration center of the district (county or city) where the house is located can inquire about the registration book and the online signature filing information to confirm the signing time, the down payment time and the registered nominee. The entry and exit records of the transaction fund supervision account can reflect the actual source of the down payment. The bank flow from the parent's account to the developer's or seller's account is the direct proof of capital contribution.

Inquiries involving houses in the name of another person, or those that have been transferred to a third person, 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 area, family cases are generally appointed for pre-litigation mediation. If the financial materials can be compiled into a book at the pre-litigation stage, it will be easier to form a plan acceptable to both parties during mediation and reduce the cost of subsequent repeated certificates.

5. common mistakes

one of the misconceptions is that whoever's parents make the down payment will own the house. When registered in the names of both parties and there is no explicit agreement, the house is common property and the contribution is only a factor affecting the share rather than a decisive factor. The second misunderstanding is that high income, repayment of loans should be more points, after marriage income belongs to the common property, in whose name to repay the loan does not change the nature of the property.

The third mistake is that parents' money must be a gift. The nature of the capital contribution shall be judged in combination with the evidence, and if there is a debit note or a clear indication of the meaning of the loan, it shall be dealt with in advance as a joint debt of the husband and wife. The fourth misconception is that the proportion of joint registration cannot be adjusted, and although the proportion of registration is an important basis, the court may still make appropriate adjustments according to the actual contribution and contribution.

6. operational steps

the first step is to collect parents' transfer records, purchase contracts, online registration and real estate ownership certificates, and lock in the time and amount. The second step is to find out the debit note, gift agreement and chat record at the time of capital contribution and determine the nature of capital contribution. The third step is to calculate the amount of joint loan repayment after marriage and the present value of the house, and to clarify the division base. The fourth step is to evaluate the factors affecting the share, such as marriage duration, first, negotiate the attribution and compensation plan through pre-litigation mediation, then enter the lawsuit and apply for an investigation order to strengthen the evidence.

What needs to be reminded is that divorce cases involving houses registered in the name of the other party's parents are usually not dealt with directly, and a separate lawsuit for confirmation of rights needs to be filed first. Mixing claims of such property with the main case often leads to a longer trial cycle, which is not conducive to a quick closure.

Practical Experience of 7. Lawyers

buying a house after marriage, one parent making a down payment, and the house being registered in the names of both parties are in principle the common property of the husband and wife, but "common" does not mean half and half-how to determine the share often depends on several variables, and capital contribution is only one of them. In determining the share, the court will combine factors such as the source and amount of the contribution, the length of the marriage, the availability of joint repayment, who is raising the children, and whether they are at fault, and the result may be biased in favor of the contributing children or closer to parity. The real battlefield of such cases is often not in the law, but in the flow of funds and whether the meaning at that time can be restored.

So the evidence has to be taken from both ends. One end is the capital link: whose account was transferred out of the down payment, to whom it was transferred, whether it directly entered the developer or seller's account, and who repaid the subsequent loan, which corresponded to a clear flow of water; The other is registration and written materials, such as purchase contracts, real estate certificates, and whether there is any agreement on the nature of capital contribution. For local handling in Ningbo, real estate registration files and purchase information can be obtained and confirmed with the bank. Only by putting these out can we tell whether the down payment is a gift to one party, both parties, or a loan, and the share will have a basis for discussion.

When talking and fighting, the position should be based on evidence. If the share is biased towards the children of the investor, the key point is to prove that the contribution does come from the parents of the investor and belongs to one of the parties. If it is advocated to be closer to equality, it emphasizes the factors of joint repayment, longer marriage, child rearing and fault of the other party, indicating that the down payment cannot be the only one. We should also pay attention to the point that is most likely to cause problems: parents did not leave any written agreement at that time, and they insisted on each other afterwards, and whoever had evidence took the initiative. Therefore, whether it is one's own party or the other's parents who contribute, it is much more reliable to explain it clearly and keep a good certificate while the relationship is still in place than to restore it at the time of divorce.