After five years of cohabitation in Ningbo, the house is registered in the name of the other party. Can it be divided?

1. cohabitation does not apply to the legal property system of husband and wife.

A cohabitation relationship is legally quite different from a marriage relationship. The system of joint property of husband and wife stipulated in the Civil Code is premised on the registration of marriage in accordance with the law; simple cohabitation, even for several years, does not automatically produce the effect of "joint ownership of the income after marriage. Therefore, the real estate registered in the name of the other party is presumed to be the personal property of the registered party in principle, and the logic of the division of divorce property cannot be claimed in half when breaking up. This is the starting point that many people are most likely to misjudge.

However, "the principle belongs to the registered party" does not mean "completely undivided". If one party can prove that the purchase price, mortgage repayment has its own capital contribution, or the two parties have a clear agreement on the ownership of property rights, it may be returned or compensated after proof. The key lies not in living together for several years, but in whose account the money comes from, who it is written to, and how it is written. In practice, when the court deals with the dispute of cohabitation property, it usually deals with the "joint acquisition of property during cohabitation" according to the proportion of capital contribution or agreement, rather than directly applying the equal division of husband and wife.

Three common situations in which 2. can claim return

the first is to jointly fund the purchase of a house but only in the name of one party. The funder can claim that the other party should return the corresponding share or discount compensation by virtue of the transfer record and the bank flow of monthly mortgage repayment. The court usually deals with the share according to the "joint purchase of property during cohabitation", and the support degree is higher when the proportion of capital contribution is clear.

In the second, one party repays the loan with joint income after marriage. Even if the real estate is registered in the name of the other party, if it can be proved that the repayment funds come from the common income of both parties during the period of cohabitation, compensation can be claimed for the joint repayment and the corresponding value-added part, which is generally calculated by multiplying the proportion of joint repayment by the appreciation of the house.

Third, there is a written or de facto common agreement. For example, if it is clear in the chat record that "the house belongs to two people" or there are conditions attached to the gift, the corresponding rights and interests can be claimed in combination with evidence. In practice, for long-term cohabitation and continuous joint repayment of loans, and there is a common agreement, the court may affirm the share of the right party in the analysis of the property.

3. go back and fix these three pieces of evidence first.

First, the capital contribution certificate: down payment transfer, mortgage monthly repayment of the bank flow, it is best to correspond to the specific real estate and time period, in particular, to keep the direct payment from their own account to give the seller or repayment account records.

The second is communication records: the expressions in WeChat and SMS about "who owns the house, who pays for it, and how to divide it later" are often the key to determining the true meaning. The complete dialogue context and time are kept when screenshots are taken. According to the Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence has many defects in proof and is difficult to accept. It is better to keep the original carrier when fixing, so as to avoid the discount of proof force caused by screenshots alone.

Third, the agreement or documents: the capital contribution agreement signed during cohabitation, the loan clause, the name-adding agreement, the property fee and the decoration expense bill, etc., can strengthen the capital contribution and the common agreement. The more coherent the evidence, the more stable the claim. What needs to be reminded is that oral commitment is difficult to prove. It is the most practical step to reduce risk to fall into writing as soon as possible or at least keep a clear chat confirmation.

4. common mistakes

myth 1: Living together for a long time is equal to having a share. The law looks at the contribution and agreement, not the number of years of cohabitation.

Myth 2: As long as I repay the loan, I will definitely share half. The corresponding value-added portion of the loan repayment can be claimed, but the share needs to be calculated on the basis of evidence, not of course.

Myth 3: The other party's verbal promise to add a name is stable. Verbal promises are difficult to prove and should be written as soon as possible or at least kept for clear chat confirmation.

Myth 4: I didn't think of collecting evidence until I broke up. Once the relationship breaks down, the other party will often delete records and change accounts, and the sooner it is fixed, the more active it is.

5. operational steps

1. Organize the flow of funds

export all the bank flow from the purchase to the current, mark the down payment, monthly payment, tax and fee expenses related to this suite, and form a corresponding timeline.

2. Recover the consensual evidence

retrieve the chat records of both parties over the years, intercept clear statements about property ownership, capital contribution and name addition and fix time stamps to avoid taking them out of context.

3. Evaluation Path

if the capital contribution is clear, it may be claimed to be returned or compensated at a discount; if the evidence is weak, priority should be negotiated, and if necessary, the idea of unjust enrichment or division of common property should be dealt with, and professional lawyers should be consulted to design the complaint.

6. list of evidence: these three types of materials determine success or failure

1. Capital contribution and repayment certificate

down payment transfer vouchers, monthly repayment of the bank flow, credit card repayment records, to be able to one-to-one correspondence to the set of housing, it is best to form a complete chain from payment to housing.

2. Evidence of common consent

the chat records, audio recordings and witness testimony of the two sides on "the house is counted as two people", "the house will be repaid together" and "the name will be added" are used to prove that it is not just borrowing money but sharing interest.

3. Living Together and Contributing Evidence

the records of common expenses, capital contribution for decoration, property and tax payment during the cohabitation period can prove that both parties have common investment and common living basis for the house.

7. practice tips

when advocating cohabitation, the choice of appeal is critical: the capital contribution can be clearly claimed to be returned or compensated at a discount.

In addition, if the property has increased in value, the compensation amount usually includes the value-added portion corresponding to the joint repayment of the loan, rather than just the principal repayment of the loan. The calculation should be based on the present value of the house minus the original value, and then multiplied by the proportion of joint repayment, to avoid underestimating the claim. This calculation in Ningbo has a public caliber to refer to: According to the "case statement" of Ningbo Intermediate People's Court, "how to calculate the" account "after divorce?" (2014-08-05), the compensation for joint repayment of loans after marriage is calculated as "value-added index × (joint repayment ÷ 2)" (the judge of Beilun Court).

8. FAQ

what if the loan repayment record is broken?

Some years of cash repayment or transfer account has been canceled, you can try to retrieve the bank history, credit card bills and developer collection records, combined with the other party's self-admission to form a chain of evidence, do not have to give up the overall claim due to a single missing.

The house has been sold by the other party. Can we chase it?

If the buyer is in good faith, paid and registered, it is difficult to recover the original, but the transfer may claim a share of the return or discount compensation, and the amount shall be calculated after deducting the other party's personal contribution.

Practical Experience of 9. Lawyers

co-habitation and marriage are completely two sets of logic in property. The common property system of husband and wife is based on the premise of registering marriage, and cohabitation for a long time will not automatically produce the effect of common income after marriage. Therefore, the real estate registered in the name of the other party is, in principle, the personal property of the registered party, and the logic of divorce cannot be directly half when breaking up. This is the starting point that is most likely to be misjudged. First, put your expectations right before you can talk about it. However, the principle belongs to the registrar, which does not mean that you can't get any money. The key lies in whose account the money comes from, who it is written to, and whether there is an agreement, rather than living together for several years.

There are mainly several types of situations that can claim return: if the joint contribution to buy a house is only written in the name of one party, the other party can claim return share or discount compensation based on the capital contribution record, and the support degree of clear capital contribution ratio is relatively high; If one party repays the loan with the common income during the cohabitation period, it can claim compensation for the joint repayment and the corresponding value-added part; If the two parties have a written or de facto joint agreement, for example, it was written in the chat that this house is for two people, so we can fight for the corresponding rights and interests. It is usually handled in accordance with the joint acquisition of property during cohabitation, in proportion to capital contribution or by agreement, rather than by direct application of equal distribution. Therefore, first determine which category you fall in, and then decide how much and how to talk.

Evidence is the life and death line of such cases. Three things should be fixed as early as possible: first, the capital contribution certificate, the down payment transfer and the flow of loan repayment for each installment, which should preferably correspond to the suite and the specific time period; Second, there are traces of agreement, such as chat records, written agreements and witness statements. The third is the registration and loan information of the real estate itself to find out whether there is any mortgage and whether it has been sealed up. During the break-up negotiations, it is especially important to prevent the other party from transferring the property and, if necessary, apply for preservation at the same time as the prosecution. The difficulty of cohabitation property disputes is not how complicated the law is, but whether the money's origin and meaning were left behind in that year, and the cost of making up the certificate afterwards was often much higher.