Ningbo pre-marriage concealment debt to share?

Before marriage, the other party was carrying a pile of debts, only to find out after marriage that you have to pay them back together when you divorce? Conclusion: No. Personal debts incurred by one of the parties before marriage are, in principle, paid by the debtor himself and the spouses do not share the obligation; the only exception is if the creditor can prove that the debt is used for the family to live together after the marriage. If after marriage, the joint property of the husband and wife is used to repay the pre-marital debt for the other party, the divorce can be partially recovered from the other party. This paper combines the Civil Code and judicial interpretation to clarify the rules of determination, defense and recovery of premarital debt.

1. legal basis: in principle, personal debt before marriage

article 1064 of the Civil Code establishes two main lines of the joint debt of the husband and wife: first, the debt incurred by the husband and wife in the joint signature or by one of the spouses after the fact ("co-signed co-debt"); and second, the debt incurred by one of the spouses in their own name for the daily needs of the family during the marriage. Pre-marital debt is neither co-signed or ratified after marriage, nor is it "borne in the name of the individual during the marriage relationship", and naturally does not belong to the common debt. Article 33 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code directly gives the answer: the people's court will not support the creditor's claim against the debtor's spouse for the personal debts incurred by one party before marriage; However, unless the creditor can prove that the debt was used for the family to live together after marriage. At the same time, article 1063 of the Civil Code makes it clear that premarital property is personal property, and that premarital personal debt forms a corresponding structure of "personal property to personal debt"-marriage is not a "debt merger" or "property confiscation".

Dismantling of elements: to determine whether a debt should be shared by the spouse, look at three points-the time of formation (before or after marriage), the expression of meaning (whether it is co-signed or ratified afterwards), and the use of the funds (whether it is used for the family to live together after marriage). Pre-marital debt + no co-signing + not used for living together, the three items are personal debt, the spouse is exempt from liability, and if the creditor claims an exception (for living together after marriage), it shall bear the burden of proof.

Subdivision of 2. situations: three scenarios are matched.

Scenario 1: The debt owed by one party before marriage, and the creditor after marriage sues the husband and wife. According to Article 33 of the Interpretation (I), the spouse may claim that the debt is a pre-marital personal debt claim exemption, and the court does not support the creditor's claim against the spouse-unless the creditor can prove that the loan was actually used for living together after marriage (e. g. for the decoration of the wedding room, wedding expenses, family business after marriage). Need to be reminded: Creditors to "the loan occurred before marriage, but the two parties jointly repaid part of the marriage" on the grounds that the spouse's default commitment, the same difficult to establish-individual compensation is not equal to the debt to join.

Scenario 2: After marriage, the joint property of the husband and wife is used to repay the premarital debt for the other party. Half of the common property already belongs to the spouse, take to fill the other party's pre-marital debt pit, divorce, the spouse can repay part of the debt to the debtor to recover-the retention of payment vouchers is the premise of recovery, the scope of recovery to the share of the actual compensation of the common property is limited.

Scenario 3: Pre-marital debt "mixed in" post-marital debt. If the debtor pays off the old loan with a new loan after marriage, and packages the pre-marital debt into a joint business debt after marriage, the spouse must carefully check the flow of funds and the timeline-the debt formation time before marriage, the funds did not enter the family's joint account, is still a personal debt. In addition, if the debtor's pre-marital loan is indeed a down payment on the marriage house and the joint repayment of the loan after marriage, the portion of the debt used for living together may be considered a joint debt, and the spouse may claim to share the joint repayment portion as a contribution.

3. the burden of proof: who claims, who gives evidence.

The main line of evidence for the spouse's defense of exemption is the "timeline and purpose chain": the loan contract and the date of the loan are earlier than the marriage registration; The transfer record shows that the funds entered the personal account of the debtor rather than the joint account of the family. Chat records and witness testimony prove that the spouse did not know about the loan and did not ratify it. If creditors claim "for living together after marriage", they must bear the burden of proof for the purpose-Ningbo public judgment insists that creditors provide evidence for large loans beyond the daily needs of the family (Cixi Court (2018) Zhejiang 0282 Minchu No. 7747, Ningbo Intermediate People's Court (2019) Zhejiang 02 Minzong No. 1524). The evidence of the formation time and use of premarital debts is especially critical. After the spouse receives the creditor's complaint, do not respond negatively-the default judgment may directly award joint repayment, should sort out the timeline as soon as possible, submit defense evidence, if necessary, raise jurisdictional objections or apply for additional debts during the defense period as a co-defendant.

Analysis of Common Misunderstandings in 4.

Myth 1: If you get the certificate, you have to pay off the old debt for the other party. Positive solution: personal debts before marriage are borne by the debtor and the spouse has no obligation to pay off ".

Myth 2: Creditors must sue together. Positive: Spouses may be exempted from liability under Article 33 of the Interpretation (I). The key is to prove that the debt was formed before marriage and was not used to live together after marriage.

Myth 3: Use common property to repay the pre-marital debt, even if it is paid for nothing. Positive solution: keep the payment voucher, and in the event of divorce, you can recover the part of the debt.

Myth 4: To clear the responsibility of destroying IOUs and forging time. Correct solution: the fabrication or destruction of evidence may constitute false litigation, obstruction of civil litigation, the loss outweighs the gain.

Misunderstanding 5: as long as the pre-marital debt is delayed, it will be "washed white". Correct solution: the debt is not eliminated by marriage or divorce, the debtor always has the obligation to pay off the creditor, the spouse has to do is "not back the pot", not for the other party to sell the debt.

5. Evidence and Operational Checklist

1. the original loan contract and IOU-check whether the date is earlier than the marriage registration;
2. bank transfer records and flow-print and stamp, lock the time and whereabouts of funds;
3. marriage registration time certificate-marriage certificate, used to compare the debt formation time;
4. evidence of use-chat records (keeping the original carrier), witness testimony, proving that the money was not used for the family;
5. compensation voucher-if the common property is used to repay, retain the payment receipt, and claim recovery in the event of divorce.

Response to Action, Period Management and Execution of 6. after being sued

after the spouse or creditor sues, the response action should keep up with the statutory period. After receiving the court summons and copy of the indictment: submit the defense within 15 days (no submission will not affect the trial); Jurisdictional objection may be raised during the defense period (in dispute over the defendant's domicile); Submit evidence of premarital debts within the time limit for proof-the date of the loan contract, the transfer time and the marriage certificate, and make a solid timeline of "debts formed before marriage and not used for common life. If the creditor only sues the debtor and does not sue the spouse, the spouse generally does not need to respond; once listed as a co-defendant, do not be absent-the court can only judge on the basis of the creditor's evidence in absentia, the spouse loses the opportunity to defend, and is likely to be judged to repay together, and then want to overturn the case can only go to a retrial, the cost increases sharply.

Response to the execution phase: If the property under the spouse's name is sealed up or frozen due to the judgment of "joint debt", an outsider's objection may be filed in accordance with the Civil Procedure Law or an application for retrial to correct the wrong judgment. The limitation of compensation: after the husband and wife's joint property is used to compensate the other party's premarital debt, the claim for compensation at the time of divorce is a property dispute, and the three-year limitation of action shall apply, starting from the date when the right is known or should be known to be damaged-the court will not protect the claim after the limitation period is delayed. In addition, it should be pointed out that no matter in litigation or execution, do not take the crooked road of "confessing the truth with the truth"-forging repayment vouchers or fabricating co-signing facts, the light is that the evidence will not be accepted, and the heavy is that the false lawsuit will be fined, detained or even investigated for criminal responsibility; truthful evidence and procedural claims are the most stable amulets for one spouse.

Key points of coping with different types of premarital debt in 7.

There are various forms of premarital debt, and the response has its own emphasis: credit card and consumer loan-the arrears formed by premarital credit card are personal debts, but if the same credit card is used for consumption and repayment after marriage, the premarital arrears and post-marital consumption must be distinguished, and the post-marital consumption part used in the daily life of the family may constitute common debts; Mortgage-for house purchase before marriage and joint repayment after marriage, housing and loan shall be handled according to Article 78 of the explanatory (I): the house belongs to the registrar and the remaining loan is the personal debt of the registrar, but the spouse can claim compensation for the joint repayment of the principal and interest of the loan and the corresponding appreciation after marriage-"the debt is not shared, and the loan is compensated"; The debts of business loans and guarantees-bank loans in the name of the individual before marriage and guarantees provided to others are borne by the individual in principle, and the spouse is not responsible for those who do not know or benefit. Illegal debts such debts such as gambling debts, spouses do not have to bear, also do not need to "replace", involving violent collection can be reported to the police. One principle of response: to find out the three coordinates of "formation time, use of funds and whether there is a co-signature", and then decide whether to defend, settle or recover-to sort out the first time when being sued by creditors, which is much more active than passive response.

8. FAQ

do I have to pay back the debts owed by the other party before marriage and divorce?

No need. Personal debts before marriage are paid by the debtor in accordance with the law, and the spouse is not obliged to pay them.

After marriage, he paid off his pre-marital debt with common money. Can he get it back?

Can. In the event of divorce, the debtor is recovered from the actual part of the common property, and the payment certificate is the basis for claiming the right.

Under what circumstances does a pre-marital debt become a joint debt?

If the creditor proves that the loan was used for the family to live together after marriage (e. g. joint purchase, family business), or if the spouse subsequently ratified and signed jointly, it may be considered a joint debt, but the burden of proof is on the creditor.

How to prove that it is a personal debt before marriage?

The date of the loan contract is earlier than the marriage, the funds have not flowed into the family's joint account, there is no co-signing or ratification, and the chat record shows that the spouse does not know-use the timeline plus the use chain to form the evidence chain.

The debtor's premarital loan paid the down payment of the wedding house, the spouse to share?

Look at the purpose and repayment arrangement: if the pre-marital loan is used to purchase the marriage house and repay the loan jointly after marriage, the part used for living together may be considered as a joint debt, but the spouse only shares the joint repayment part according to the contribution, and can claim the excess to the debtor.

Practical Experience of 9. Lawyers

A debt owed by one party before marriage is, in principle, a personal debt, and the other party is not obliged to pay it off with common property. There are two types of risks to guard against: one is that the other party uses common income and common property to repay the personal debt before marriage, which is equivalent to a disguised share by you. Therefore, the key is not to investigate the "concealment" of the matter itself, but to find out as soon as possible whether there are old debts under the name of the other party and whether there are cases being executed, so as to keep the risks out of the door.

The response action when implicated should be in order. If it is only sued by creditors, first review the time and purpose of the debt formation, claiming that it occurred before marriage, used for personal affairs, and has nothing to do with oneself. At the same time, pay attention to the time limit of proof and the relevant period, don't miss the defense window because of delay. The claim is that the party of the personal debt should produce evidence, the claim is a common debt to prove the purpose or agreement, the distribution of responsibility to distinguish.

Preventing in advance is less labor-saving than responding to lawsuits afterwards. Know the other party's liabilities before marriage or at the beginning of marriage, and require written disclosure and retention if necessary. If you are preparing for divorce, you can state in the agreement that the personal debt before marriage shall be borne by the debtor and may not be paid off with common property, although the agreement generally cannot be used against bona fide creditors, but at least leave a basis for your future recovery.

The key to concealing debt before marriage is in the "formation time plus use of proof": pre-marital debt personal burden, on behalf of the recovery. It is suggested that the loan contract, transfer record and evidence of use should be fixed at the first time. After receiving the creditor's lawsuit, the creditor should actively respond to the defense, and should not be passively absent, let alone fabricate or destroy the evidence. After marriage, if the other party is found to conceal large debts, it should also examine the family financial arrangements at the same time to prevent the common property from being "filled in the pit".