Insights

Should Ningbo Marriage IOU Divorce Be Pent back?

Ningbo Author：LuXu WANG

Couples also write IOUs? Many people think that "all the money is in the same pot, and you don't have to pay it back if you borrow it". However, if a marital loan is used for one party's personal property, or for personal affairs, it may be repaid in the event of divorce.

Why 1. Marital Borrowing

A marital loan relationship may be formed if one of the spouses lends his or her own pre-marital savings to his or her spouse, or if the two parties agree to borrow a certain amount of money for the spouse's personal business, purchase of a house, etc. It is different from daily household expenses and has the property of being liquidated.

Borrowing and Household Boundaries

expenses used for family life and joint operation are generally regarded as the burden of husband and wife and are not treated as loans; if they are clearly used for one party's personal affairs and have other agreements, they are more likely to be recognized as loans.

Treatment of 2. lending with personal property

the judicial interpretation of marriage and family (I) stipulates that if a loan agreement is concluded between husband and wife, and the joint property of the husband and wife is lent to one party to engage in personal business activities or other personal affairs, it shall be regarded as an agreement between the two parties to dispose of the common property, and can be dealt with as a loan in the event of divorce. If the loan is a party's personal property, it is more natural to treat it as a loan relationship.

The burden of proof is on the lender.

The party claiming to borrow money within marriage needs to prove the source of the money (e. g. personal deposits before marriage), the consent of the loan (debit notes, chat records) and the purpose of the other party's personal affairs. The more complete the evidence, the more stable the divorce claim return. In Ningbo's local practice, chat records and transfer vouchers of WeChat and Alipay are common evidence. However, according to Yinzhou Court's White Paper on Trial of Marriage and Family Cases (2019-2021), electronic evidence has many defects in proof and is difficult to accept. It is necessary to keep the original carrier and specify "loan" and its purpose in the remarks as far as possible when transferring money.

3. borrowings for personal affairs

if the loan is used by the other party for its personal business, personal debt settlement, etc., and has nothing to do with the common interests of the family, the lender may request repayment of the joint property of the husband and wife or the share of the other party at the time of divorce, which shall be dealt with in accordance with the loan agreement.

1. Risk of use mixing

if the loan is nominally personal and actually used for family living together, the nature will return to the common burden, and the lender will lack the basis for claiming "must be repaid. Use the evidence to be consistent.

2. The boundary between personal affairs and family expenses.

Personal business inputs, personal gambling or high-risk investments, and expenses borne by the original family are usually considered personal affairs; daily meals, monthly mortgage payments, children's education and medical care, and family decoration are common living expenses. Where the demarcation is blurred, the court will look at the ultimate beneficiary of the flow of funds, and where the uses are mixed and cannot be split, the return request will mostly fail.

How to write a 4. IOU to be effective

the marriage IOU should state the source, amount, purpose and repayment intention of the loan, and be signed by both parties. Although notarization is not required, a written IOU with complete elements is far more supportive of a request for return in the event of divorce than an oral statement.

Four must-write content

A usable marital debit note states at least four items: the specific source and account of the loan, the amount of the loan and the actual date of receipt, the clear purpose of the loan, the repayment period and whether interest is accrued. The proposal also indicates that the payment is the personal property of the lender and is signed and stamped by both parties. If the amount is larger, it can be notarized again or witnessed by a third party.

Whether a 5. IOU can be honored depends on three verifiable elements.

In order for the marital loan to really work in the event of divorce, three elements need to be met at the same time: the loan funds come from one party's personal property rather than the common property, the funds are used for the borrower's personal affairs rather than the family's common life, and the two parties have a clear agreement on the loan and have written documents. The lack of one of the three, the loan is easy to be identified as the husband and wife's internal fund scheduling rather than the real loan.

The burden of proof falls mainly on the party claiming the establishment of the loan. The most powerful combination of evidence is: a screenshot of the source of funds in the personal account before the loan, a record of the transfer of the special account on the day of the loan, a written agreement stating the purpose and repayment period, and the corresponding flow of funds after the loan. If the four materials can confirm each other, the possibility of court support is significantly increased.

6. case proof

in practice, the wife lends her husband a pre-marital personal deposit of 500000 yuan for his personal business. The two parties sign a marital loan agreement and keep a special account transfer record. In the event of divorce, the court handles the loan relationship and orders the husband to repay the principal with personal property and pay interest at the annual interest rate agreed in the contract. The sum is not divided as common property.

In practice, one party lends 200000 yuan to the spouse in the name of the husband and wife's joint deposit and issues a debit note, but the funds are actually used for family decoration and children's education and other common living expenses, the court found that it does not constitute a liquidated loan, the divorce did not support the return request, only in the division of the property has been spent part of the overall consideration.

7. Risk Alert

  • only oral statements without IOUs or transfers, borrowing is difficult to identify.
  • The source of the loan is not clear whether it is personal property or common property.
  • The name is borrowed personally, actually used for household use, and the nature is denied.
  • The elements of the debit note are missing, and the amount and purpose are vague.
  • The authenticity of the temporary supplementary IOUs at the time of divorce is easily questioned.

8. FAQ

is the divorce valid by iou in marriage?

Divorce may be treated as a loan if it is in line with the consent of the loan and is used for personal affairs.

Do you want to repay the loan to your spouse with a joint deposit?

If it is used for the spouse's personal business or affairs, it shall be regarded as the disposition of common property, and the divorce may claim repayment.

Do IOUs have to be notarized to be valid?

I don't have. A written IOU stating the source, amount, purpose, intention to repay the loan and signed by both parties can be, notarization is only to strengthen the proof.

What if the other party said that all the money was spent at home?

The lender needs to prove that the loan is indeed used for personal affairs, and the evidence of use is consistent in order to claim the return.

Do marital IOUs need to be notarized to be valid?

No, as long as both parties sign and express their true meaning, the debit note itself has legal effect. The role of notarization is to enhance the probative force and reduce post-event disputes, which can be considered when the amount is large or the trust basis between the two parties is weak, but notarization cannot replace the proof of the source and use of funds.

The other party said that all the money borrowed was spent at home. What should I do?

The point is to restore the whereabouts of the funds one by one. Take the expenditure flow after the loan is transferred to the account, point out the part used for personal business and personal consumption, and compare it with the regular amount of household daily expenses. If it can be proved that the money is out of the family's common life track, the court will usually support the treatment of the loan relationship.

Practical Experience of 9. Lawyers

marital borrowing is not "money in the same pot" and you don't have to pay it back. Whether it can be cashed or not depends on two premises: whether the loan is the personal property of one party, such as the pre-marital deposit, or the property that the two parties have clearly agreed to belong to the individual; and whether the money is used for personal affairs, rather than the family Living together or operating together. The first step is to sort out the two lines of the source and use of funds at the same time. Both lines must be supported by vouchers. It is difficult to stand on the basis of oral statements. Without any one, the following propositions will be unstable.

IOUs should be written solidly, not in a vague sentence. The amount, currency, lender, borrower, purpose, repayment time, whether there is interest, should be clearly written, signed and dated by both parties. If the amount is clearly written and the date is white, there will be little room for controversy in the future. Only debit notes, no corresponding funds delivery vouchers, it is easy to be questioned as "empty notes", so can transfer and debit notes tied together, do not try to save money to cash.

In the final analysis, the success of such claims depends on three verifiable elements: the source of funds can prove to be personal property, the purpose can prove to be personal affairs, and there is a real proof of delivery. Any missing link may be regarded as a shared burden of the family and not supported. In the negotiation and litigation, the three evidences should be aligned first, and then the amount and repayment method should be discussed. If the other party insists that "the money is used at home", it will use the corresponding consumption record or business record to respond. Speaking with evidence is more effective than repeatedly arguing who is reasonable.