How to repay the loan after buying a house before marriage in Ningbo

1. legal basis and basic rules

article 78 of the (I) of the Supreme people's Court on the interpretation of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that if one spouse signs a contract for the sale of real estate before marriage, pays the down payment with personal property and makes a bank loan, and repays the loan with the joint property of the husband and wife after marriage, if the real estate is registered in the name of the down payment payer, the real estate shall be dealt with 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 shall be the personal debt of the registered party. The amount paid by the two parties after marriage and the corresponding property appreciation shall be compensated by one party to the other party in the real estate registration. This provision establishes three basic principles. First, the property is owned by the property registration party, and the remaining loan is borne by the registration party. Second, the part of the joint repayment of the loan after marriage belongs to the joint property expenditure of the husband and wife, and the registered party shall compensate the other party. Third, compensation includes not only the principal of the joint repayment, but also the corresponding value-added portion of the house. It should be noted that this provision applies to the situation where the party before marriage pays the down payment, loans to buy a house and registers in his own name. If the two parties pay the down payment together before marriage, or register in the names of both parties, different division rules apply.

The calculation formula and steps of the 2. compensation amount.

In the judicial practice of Ningbo area, the court usually uses the following calculation formula to determine the amount of compensation. Compensation amount = (total amount of joint repayment of the couple ÷ total cost of the house) × present value of the house at the time of divorce × 50% of which, total cost of the house = purchase price of the house + interest on the loan already repaid + other purchase expenses (e. g. deed tax, maintenance fund, etc.). The specific calculation steps are as follows. The first step is to determine the total amount of joint repayment. Take the loan bank repayment details and count the total amount of repayment (including principal and interest) from the date of marriage registration to the date of divorce. The second step is to determine the total cost of the house. The purchase price of the house is the price agreed upon in the purchase contract; the interest on the repaid loan is all interest from the date of loan issuance to the date of divorce; other purchase expenses include deed tax, maintenance fund, intermediary fee, etc. The third step is to determine the present value of the house at the time of divorce. The two parties shall determine or entrust the evaluation institution to evaluate. In the Ningbo area, the court usually entrusts a qualified real estate appraisal agency to carry out the appraisal, and the appraisal fee is shared by both parties. The fourth step is to substitute the formula for calculation. For example, the man bought the real estate with 2 million yuan before marriage, with a down payment of 600000 yuan and a loan of 1.4 million yuan. After marriage, the joint repayment of the loan is 800000 yuan (including the principal of 500000 yuan and the interest of 300000 yuan). The house was assessed at 3 million yuan at the time of divorce. Total cost of housing = 2 million +300000=2.3 million. Compensation amount = (800000 ÷ 2.3 million) × 3 million × 50% = 5217

00yuan.

Criteria for determining the amount of joint repayment of 3. loans

the determination of the amount of joint repayment is the basis of compensation calculation, and there are the following controversial points in practice. First, the identification of the source of funds for loan repayment. If the loan is repaid after marriage with one party's personal property (e. g. pre-marital deposits, inheritance proceeds), this part is not a joint repayment. However, the party claiming to repay the loan with personal property is required to bear the burden of proof to prove that the repayment funds are derived from personal property and are not mixed with common property. In practice, this proof is more difficult, unless the personal property account is strictly separated from the common account. Second, the distinction between premarital repayment and post-marital repayment. It is necessary to take the marriage registration date as the dividing line and obtain the bank repayment details to distinguish. If the marriage registration date does not coincide with the actual common life date, the marriage registration date shall prevail. Third, the treatment of early repayment of loans. If the two parties pay off the loan in advance with common property after marriage, the amount of early repayment is included in the total amount of joint repayment. However, if the funds for the early repayment are derived from the personal property of one party, a deduction is required. Fourth, the determination of provident fund repayment. If the provident fund is used to repay the loan after marriage, if the provident fund belongs to the joint property of the husband and wife (the part deposited after marriage), it shall be included in the joint repayment. The provident fund deposited before marriage belongs to personal property, and the portion of the loan repayment is not included in the joint repayment.

Calculation Method of 4. Housing Value Added

the calculation of the value-added part of the house is the most important variable in the amount of compensation, and it is also the most controversial link between the parties. The first method is the ratio calculation method in the above formula. The proportion of the joint repayment amount to the total cost of the house, multiplied by the present value of the house, to obtain the value of the house corresponding to the joint repayment, and then divided by two to obtain the amount of compensation. This method is the most commonly used calculation method in Ningbo District Court. The second method is the difference method. Calculate the total value added of the house from purchase to divorce, and then share the value added in proportion to the joint repayment. Total value added = present value of the house at the time of divorce-purchase price of the house. Value added corresponding to joint repayment = total value added x (joint repayment amount ÷ total cost of home). Compensation amount = joint repayment amount ÷ 2 + appreciation corresponding to joint repayment ÷ 2. This method is mathematically equivalent to the first method. The third method is the discretionary law of the court. Under special circumstances (such as large investment in house decoration, abnormal market fluctuations, etc.), the court may not use the formula to calculate, but comprehensively consider various factors to determine the amount of compensation. It should be noted that if the house depreciates during the marriage, the joint repayment portion should still be compensated, but the corresponding value-added portion is negative, and the actual compensation amount will be reduced accordingly. In the case of housing devaluation, the Ningbo District Court usually still calculates according to the formula, allowing the value-added part to be negative.

5. case proof

according to the Ningbo Intermediate Court's "case statement" "Divorced, how to calculate the" account "?" (2014-08-05), Ningbo Beilun District Court judge's compensation for pre-marital house purchase and post-marital joint repayment is calculated as "value-added index × (joint repayment ÷ 2)", that is, the corresponding value-added of the principal and interest of the joint repayment after marriage is converted according to the proportion of house price appreciation, and then divided into halves. The following is an example of calculation according to the proportional calculation method in Article 78 of the Judicial Interpretation (I) on Marriage and Family of the Civil Code: Assuming that one party buys a house with 2.8 million yuan before marriage, makes a down payment of 840000 yuan and a loan of 1.96 million yuan and registers it in his name, jointly repays the loan for 5 years after marriage, totaling 720000 yuan (including principal 420000 yuan and interest 300000 yuan), and the assessed price of the house at the time of divorce is 4.2 million yuan, then the total cost of the house = 2.8 million yuan +300000 yuan = 3.1 million yuan, and the compensation amount = (720000 ÷ 3.1 million) × 4.2 million × 50%≈ 487700 yuan; If the assessment fee to be borne by the other party is deducted, the actual compensation amount will be reduced accordingly.

The division of real estate and compensation for discount in the public judgment of Ningbo court also confirm the treatment idea of proportional calculation and compensation for one party who gets the house: in the property dispute after the divorce between Xu mou and Chen mou (Ningbo Zhenhai court), the real estate registered in the names of both parties is awarded to the plaintiff, and the plaintiff pays the defendant 744362.67 yuan in discount. In the property dispute after the divorce between Wang mou and Zheng mou (Ningbo court), for some houses that are common property, the court ruled that the house under the defendant's name belongs to the plaintiff, and the plaintiff shall pay the compensation of 328500 yuan (according to the public judgment of Ningbo court, marriage and family knowledge base).

Revelation: The amount of compensation is neither half of the present value of the house nor half of the principal of the joint repayment, but the combined value calculated on a pro rata basis. The parties should understand the calculation method and avoid making unrealistic claims; the amount of compensation in a specific case shall be subject to the capital contribution, loan repayment and evaluation determined by the court.

6. Risk Alert

first, the risk of evidence preservation. Evidence of joint repayment relies heavily on bank flows, which may lead to difficulties in proving loans if they are repaid through cash or third-party accounts after marriage. It is recommended to keep a complete bank repayment record. Second, assess the point-in-time risk. The appraised price of the house is based on the point of time when the court entrusts the appraisal, and if the house price fluctuates significantly during the litigation period, it may affect the amount of compensation. A party may deliberately delay proceedings to await favorable market timing. Third, the identification risk of decoration investment. If the house is renovated after marriage, there is a dispute whether the cost of the renovation is included in the value of the house. The Ningbo District Court usually treats the cost of renovation as a common property expense and takes it into account when calculating compensation. Fourth, the risk of proof of provident fund repayment. If one party claims to use the pre-marital provident fund to repay the loan, it is necessary to provide the provident fund account deposit details and repayment records to prove the source and flow of funds.

7. FAQ

1. Buy a house before marriage and repay the loan together after marriage. Who owns the house when divorce occurs?

The real estate is owned by the property registration party, and the remaining loan is borne by the registration party. However, the registrant is required to compensate the other party for the joint repayment portion and the corresponding appreciation of the house. The amount of compensation is calculated according to the formula, not simply divided in half.

2. After marriage, I use my pre-marital savings to repay the loan. Can the other party still claim compensation?

If it can be proved that the repayment funds come from personal deposits before marriage and are not mixed with common property, the part is not included in the joint repayment, and the other party has no right to claim compensation. However, the burden of proof is on your side, it is recommended to keep a separate transfer record of the premarital deposit account and the repayment account.

3. If the house falls, will the compensation amount be reduced?

Will. If the house depreciates in value at the time of divorce, the value-added portion corresponding to the joint repayment is negative, and the actual compensation amount will be reduced accordingly. However, the principal portion of the joint repayment should still be compensated, and the court will not be completely relieved of the obligation to compensate because of the devaluation.

4. It took 200000 to decorate after marriage. Can you come back after divorce?

The cost of decoration after marriage belongs to the joint property expenditure of the husband and wife. In the case of a property owned by one party, the cost of renovation is usually included in the value of the house together with the calculation of compensation. If the renovation significantly increases the value of the house, the court will consider it in the compensation calculation.

Practical Experience of 8. Lawyers

before marriage, one party made a down payment to buy a house, and after marriage, the two repaid the loan together. During the divorce, the other party was easily trapped in the worry that "the house is not mine, and my loan has been repaid in vain. In fact, the suite registered in the name of the down payment party usually belongs to the registered party, but the registered party should make up a sum to the other party for the joint repayment of the loan after marriage and the corresponding value-added part. Therefore, the focus is not on who owns the house, but on how to calculate the compensation clearly and with evidence, and how to sort out the calculation formula, the in the mind will not panic., Breaking up the formula is much more useful than being in a hurry.

The accounts fall on a set of figures that can be checked: how much was actually repaid with the common property after marriage, the start and end time of the loan, the value of the house at the point of division and the original cost, and the value added and compensation is calculated accordingly. In terms of evidence, the down payment voucher, loan contract, repayment flow, evaluation or reference of the transaction price should be prepared, especially the flow that can distinguish between the part of the party before marriage and the part of the joint repayment after marriage. The figures are clear and the materials are correct. Negotiations and lawsuits will take the initiative a lot, and it is not easy to be bypassed by the other party's words.

When negotiating, don't take compensation or not as a matter of attitude. Put out the calculation formula, which is often faster than arguing. It should also be reminded that when house prices go down, the value-added may be negative, and the compensation may not be positive. Both sides should have this expectation, and do not take "making up a sum" for granted. If the other party does not cooperate for a long time, it can first put forward its own calculation caliber and basis in writing, fix the differences, and prepare for subsequent negotiations or lawsuits. It is courteous before soldiers, and the procedures are more reasonable., It also saves the need for repeated explanations in the future.