How to divide the down payment before marriage and repay the loan after marriage in Ningbo

The property where one party pays the down payment before marriage, registers his own name, and the husband and wife jointly repay the loan after marriage is the subject of a higher frequency in divorce disputes. According to the White Paper on the Trial of Marriage and Family Cases (2019-2021) of the Yinzhou Court, more than 99% of family cases involve the division of property, and real estate mortgage disputes are a common type. The conclusion first: this kind of house is generally awarded to the registered party, but the registered party must compensate the other party for the joint repayment of the loan after marriage and the corresponding value-added, and it is by no means a "down payment party for nothing". The compensation is not to return half of the monthly payment, but to divide by two according to the proportion of joint repayment multiplied by the value-added of the house. This paper combines the civil code with the Ningbo referee caliber to disassemble the calculation caliber.

First find out: this set of pre-marital down payment of the house, ownership in the end how to determine. To handle divorce real estate cases, we must first distinguish between the down payment and the joint repayment of the loan after marriage. In practice, it is often asked whether the house with down payment before marriage and monthly payment after marriage is common property? Answer: The ownership belongs to the registered party of down payment, but the joint repayment and value-added part after marriage are common rights and interests, and the division must compensate the other party. There is also a benchmark point in time for the division of property in divorce proceedings (the reference time for the court to determine the value of the house), and the value of the house is based on the present value at the time of the trial. Legal basis: how to characterize compensation. The typical mortgage house with down payment before marriage, registration of one's own name and joint repayment of loans after marriage shall be agreed upon in advance of divorce according to Article 78 of the (I) for Interpretation of Marriage and Family of the Civil Code. If it fails, the court may order the house to belong to the registered party and the unpaid loan to be his personal debt. The joint repayment and appreciation of the loan after marriage shall compensate the other party according to the principle of taking care of the rights and interests of children, women and rights and rights and rights and rights and rights and rights and rights and rights and rights and rights and rights. Value-added compensation (the premium corresponding to post-marital repayment in the price increase) is easily overlooked. Practical points: how to divide each of the three types of funding sources. First, the down payment and post-marital repayment are from the common property, the registration party to take the house, the other party to take compensation is the principle. Second, if it is proved that the loan repayment funds after marriage originated from personal property before marriage, it may be claimed that the part is not common property and the compensation is reduced. Third, after marriage, the joint down payment and joint repayment of the loan, the whole is a common property, according to the contribution and care division. How to calculate the compensation amount: the following table is calculated according to the example of article 78 (split base = joint repayment of principal and interest after marriage ÷ total cost of housing × present value of housing; Compensation = split base × 50%, half for the other party if there is no contract):

| Item | Amount (RMB) | Description |

| --- | --- | --- |

| Joint repayment of principal and interest after marriage | 780,000 | Total principal and interest of loans repaid by joint property after marriage (example calculation) |

| Total Cost of Housing (Purchase Price + Repayment Interest) | 3,200,000 | Purchase Price 2,600,000 + Repayment Interest 600,000 (Example Calculus) |

| Present value of home | 4,500,000 | Market value at trial (example calculus) |

| split base | 1,096,875 | = 780,000 ÷ 3,200,000 × 4,500,000 (example calculus) |

| Compensation | 548,438 | = 1,096,875 × 50%(example calculus) |

one-step calculation: split base = 780,000 ÷ 3,200,000 × 4,500,000 ≈ 1,096,875 yuan; Compensation amount = 1,096,875 × 50%≈ 548,438 yuan, and non-down payment is about 548000 yuan. A slight deviation in the compensation calculation may result in a difference of hundreds of thousands of yuan, which must be subject to the evaluation or the price approved by both parties.

1. case proof

according to the Ningbo Intermediate Court's "case statement" "Divorced, how to calculate the" account "?" (2014-08-05), the Beilun District Court judge's compensation for pre-marital home purchase and post-marital joint repayment is calculated as "value-added index × (joint repayment ÷ 2)", that is, according to the proportion of joint repayment to the purchase investment corresponds to half of the compensation after the appreciation of the house, which is consistent with the calculus. The main points of the case: the registered party to take the house, the other party to take compensation, the base to the joint repayment ratio and value-added rate of comprehensive calculation, Ningbo court to hear such disputes generally according to this idea.

2. Risk Alert

the division of divorced property is influenced by many factors such as source, registration, capital contribution, loan repayment, and local referee caliber, and the results vary from person to person. Do not fabricate debts, conceal loan repayment records or transfer property, which may be less or not divided under article 1092 of the Civil Code. The transfer of the mortgage house must be subject to the bank's consent or the settlement of the loan, which cannot be enforced unilaterally. There are other special rules for special circumstances such as parents' contribution, name addition, military delivery room and demolition room. It is suggested to consult separately on specific materials.

3. FAQ

q: pre-marital down payment after marriage to repay the loan, the house must be down payment party? A: not necessarily. Can reach an agreement according to the agreement. Q: Is compensation the return of half of the monthly payment? A: No. The ratio of the principal and interest of the joint repayment of the loan to the total cost of the purchase shall be multiplied by the net value of the house after the appreciation, and divided by two. Q: Can personal property be used to repay the loan after marriage? A: Yes. If it is proved that the repayment of the loan after marriage is derived from personal property before marriage, it may be claimed that the part is not common property, thus reducing the compensation. Q: Who is responsible for the divorce with the down payment made by the parents? A: See if it is clear that the capital is only given to your own children; if there is no clear agreement, the other party will be compensated comprehensively according to Article 8 of the (II) of Interpretation.

Practical Experience of 4. Lawyers

before marriage, one party pays the down payment, registers his own name, and repays the loan together after marriage. Most of these houses are awarded to the registered party, but the registered party should compensate the other party for the principal, interest and corresponding value-added of the joint loan repayment-it is by no means who registers and who takes it for nothing. Therefore, the parties concerned should not rush to argue about "who owns the house". That is relatively certain. What really needs to work hard is to calculate the compensation accurately and prepare the basis, because it is the focus of the interests of both parties and the place where it is most likely to collapse. The more clearly you calculate, the more you can avoid the other party asking for a price based on emotion.

The key to calculating compensation is to correspond the part of the joint repayment after marriage to the appreciation of the house. Usually first clarify the total amount of principal and interest paid after marriage, and then combined with the change in the value of the house from marriage to divorce, calculate the value added corresponding to the joint repayment of the loan, the registration party according to half of the compensation to the other party. The most error-prone thing here is to take the "half of the monthly payment" directly as the compensation amount-the monthly payment contains the outstanding loan and the preset value-added in the future, and the direct half is often not accurate. On the evidence, the flow of the repayment account, the loan contract, and the repayment schedule should be fully prepared.

Whether you go through negotiation or litigation, you should consider the remaining loan, the present value of the house, the amount of compensation and the point of transfer. At the time of negotiation, the registered party can try to relieve the pressure by cash installments or other property to which it is entitled; the non-registered party should focus on whether the compensation is sufficient to reflect the value added, and should not be fooled by a "refund of your monthly payment for six months. If we can't talk about it, we will apply for evaluation, settle the compensation base, and then let the court decide the attribution. If the accounts are clear, it will be easier for both sides to move closer to specific figures.