Not all premarital property in Ningbo belongs to individuals.

Many people believe in a saying: "What is before marriage is personal. “But when it actually comes to divorce, some of the ‘premarital property’ may be divided.” To state the conclusion upfront: In principle, property owned by one spouse prior to marriage is considered that spouse’s separate property and is not subject to division upon divorce. However, there are three exceptions: (1) the appreciation in value of a house for which one spouse made the down payment before marriage but both spouses contributed to the mortgage payments after marriage; (2) when premarital property becomes commingled with marital property to the point where it can no longer be distinguished; and (3) any income or proceeds generated from premarital property through joint management or transformation after marriage. In these cases, the individual’s separate property may acquire a component of marital property. The label of "before marriage" does not mean that it will never move. Whether it can keep its personal attributes depends on isolation and proof.

1. Legal Framework: The Principle of Personal Property and the Three Statutory Sources

Article 1062 of the Civil Code stipulates that the wages, bonuses, labor remuneration, production and operation investment income, intellectual property rights income, inherited or donated property (except those determined to belong to only one party in the will or gift contract), etc. obtained by the husband and wife during the existence of the marriage relationship are the common property of the husband and wife; Article 1063 stipulates, the premarital property of one party, the compensation or compensation obtained by one party for personal injury, the property determined in the will or gift contract to belong only to one party, and the daily necessities used by one party are the personal property of one of the spouses. Premarital property to the individual is the principle, to the accumulation of pre-marital to stabilize expectations.

What is really easy to "lose" is the boundary drawn between Article 26 and Article 78 of the (I) for the Interpretation of Marriage and Family of the Civil Code: Article 26 stipulates that the income generated by the personal property of one spouse after marriage should be recognized as the common property of the husband and wife, except for the fruits and natural appreciation-that is, the income generated by whose money depends on the nature of the income, natural value-added (e. g. house price rises with the market) belongs to the individual, and active value-added (e. g. value-added generated by labor and capital management after marriage) belongs to the common. Article 78 stipulates that if the house is bought by mortgage before marriage, registered in the name of the down payment party and repaid the loan with common property after marriage, the house shall generally belong to the registered party at the time of divorce, but the registered party shall compensate the other party for the amount of the amount of the joint repayment and the corresponding property.

According to this, three questions can be refined and judged: first, when was the property acquired (before marriage or within marriage); second, whether there was joint investment after marriage (loan repayment, operation, labor and management); third, whether the value-added is the natural value-added of "lying down and earning" or the active value-added of "working out. The third question is the most neglected in practice.

2. the detailed analysis of three types of high-risk situations

1. Pre-marital down payment and joint repayment after marriage: the house belongs to the registration party of the down payment, but the principal and interest of joint repayment after marriage and the corresponding value-added are treated as common property, and the registration party must compensate the other party when divorcing. The compensation is usually calculated as half of "joint repayment of principal and interest + corresponding value-added", which is often much higher than the simple half-paid principal. Deduction Example (Example, Fiction): The man made a down payment of 600000 yuan to buy a house and registered his name before marriage. After marriage, both parties jointly repaid the principal and interest of the loan in a total of 1.1 million yuan. The market value of the house at the time of divorce increased compared with that at the time of purchase. The court awarded 50% compensation for the joint repayment of the principal and interest of 1.1 million yuan and the corresponding house appreciation. The woman received a discount compensation of about 950000 yuan.
2. Pre-marital deposits are mixed with common property: the pre-marital personal deposits are transferred to the joint account of the husband and wife, and are repeatedly intertwined with the salary and operating income before the purchase or investment, because the funds cannot be clearly distinguished, the personal attributes are diluted, and the court tends to treat them as common property. Illustrative case (example, fictional): Before marriage, the woman had savings that were transferred into a joint account after marriage and commingled with both parties’ salaries. Three years later, these funds were used to purchase a house. Because the original source of the funds could not be traced, the court determined that the property interest in the house included a joint component and ordered its division as marital property.
3. Active post-marital appreciation of pre-marital equity, real estate and other assets: If the equity of the company held before marriage increases in value by the joint operation and management of the husband and wife after marriage, the increased part may be recognized as common property; the rent generated by the rental of the real estate before marriage and after marriage needs to be put into management, and the local judges tend to recognize that the operating income is common property (there are some differences in the judgment, and the case is subject to the evidence).

3. five operations to keep personal attributes

1. Determining the time of acquisition: Retain the house purchase contract, payment vouchers, property registration records, and pre-marital account balance statements to prove that the property was acquired before the date of marriage registration and that its source is clearly established. If the time of acquisition cannot be proven, it will be difficult to rebut the presumption that the property is marital joint property.
2. account isolation: deposit before marriage is kept in a separate account, and after marriage, it is no longer deposited into the common income and not used as the daily expenses of the family; when purchasing assets, it is paid in full from the account and keeps the transfer voucher, forming a clear chain of "balance before marriage → assets after marriage.
3. Distinguish the source of repayment funds: Premarital real estate After marriage, try to use personal account funds and keep vouchers. Once you use the common income to repay the loan, you will have the obligation of compensation.
4. Written agreement: According to Article 1065 of the Civil Code, both men and women can agree in writing on the ownership of property before marriage and during marriage, and the agreement takes precedence over the law; sign the property agreement and list the location of the property, the number of the vehicle, the account, the corresponding company of the equity and the shareholding ratio item by item, and attach a screenshot of the balance at the time of marriage.
5. Avoid malicious punishment: those who hide, transfer, sell, destroy, squander common property or forge common debts before and after divorce may be divided less or not according to Article 1,092 of the Civil Code, and do not step on the line for "protecting property.

Analysis of 4. Common Misunderstandings

Misunderstanding 1: There is absolutely no distinction between pre-marital property. Positive solution: the principle belongs to the individual, but the exceptions such as the value-added of joint loan repayment after marriage, the conversion of mixing and the active value-added generated by joint operation will participate in the division.

Misunderstanding 2: The appreciation of the house before marriage belongs to the individual.Correct answer: The natural appreciation in value of the property belongs to the individual; however, the appreciation attributable to joint mortgage repayments made after marriage, as well as any appreciation and investments resulting from post-marriage renovations or additions, must be compensated to the other party.

Myth 3: It doesn't matter if money is mixed together, just remember it. Positive Solution: The court tends to treat the funds that cannot be traced after mixing as common property, and "remember" cannot replace the evidence of account flow.

Misunderstanding 4: It is effective to say "each belongs to his own" orally. positive solution: the property agreement between husband and wife must be in written form to produce the effect of confrontation, and it is difficult to provide evidence by oral agreement.

Misunderstanding 5: Full-payment room before marriage is always safe after marriage. Positive explanation: the house itself will not be transformed, but if the joint income is used to decorate or build a large amount after marriage, the other party can claim compensation for this part of the investment; if the rental operation is carried out, the rental income may also be recognized as joint property.

5. the distinction of three types of value-added: natural value-added, active value-added and fruits

Article 26 of the (I) of Interpretation divides "the income generated by personal property after marriage" into two parts: the fruits and natural appreciation belong to the individual, and the rest of the income belongs to the common. When it comes to specific assets, the criterion is the presence or absence of post-marital investment and active management:

1. Real estate: the rise of market price with the market is a natural value-added, which belongs to the property owner; but the value-added of joint loan repayment after marriage and the corresponding value-added of capital decoration and construction after marriage enter the common property because of the common investment. The rent of pre-marital real estate after marriage needs to be invested in the management of rent, maintenance, etc., most of the judges tend to identify as operating income, the two sides can negotiate or by the court case discretion.
2. Deposits and financial management: the interest generated by pre-marital deposits according to the agreed interest rate belongs to the legal interest and belongs to the individual; but if the deposit in the joint account is mixed with the joint funds, or the continuous investment after marriage, it is difficult to distinguish the mixed part.
3. Stocks and funds: holding shares before marriage The passive market rises without operation after marriage, and it tends to be recognized that the natural appreciation belongs to the individual; if the investment time after marriage is fixed, the income is intertwined with the mutual living funds of both parties, the income part may be recognized as common property.
4. company equity: the natural value-added of equity acquired before marriage belongs to the individual, but the dividends after marriage belong to the income of production, operation and investment, which are generally recognized as common property; if the participation in operation after marriage promotes the value of the enterprise, the qualitative judgment of the corresponding value-added should be combined with the case of capital contribution and labor contribution.

The practical significance of this group of distinctions lies in: the party who advocates that "value-added belongs to individuals" should prove that there is no joint investment after marriage and that value-added is purely a market factor; the party who advocates that "value-added should be divided" should fix the evidence of joint loan repayment, joint operation and joint management. Where the evidence points, the results are biased.

How to write 6. prenuptial property agreement is valid

Pursuant to Article 1,065 of the Civil Code, both parties may enter into a written agreement regarding the ownership of premarital property and property acquired during the marriage; such an agreement shall be legally binding on both parties. A valid and enforceable agreement should contain:

1. Property list: itemize the location of the real estate, the license plate number of the vehicle, the name of the company corresponding to the account opening bank and the tail number, and the shareholding ratio of the equity, together with the screenshot of the balance at the time before marriage and the ownership certificate;
2. attribution arrangement: make clear what is owned by them, what is common and the proportion of common property, and write clearly the new property after marriage in the mode of "owned by them, jointly owned or partly shared by them;
3. Debt arrangement: make clear the subject of premarital debt and post-marital debt to reduce future disputes;
4. Alteration and Dispute Resolution Clause: The agreement modification must be in writing and signed by both parties, and the dispute resolution method;
5. Notarization: The agreement has stronger proof force after notarization. Both parties carry ID cards and property certificates to the notary office for signing.

The boundary of validity should also be clear: the property agreement should not violate the mandatory provisions of the law and public order and good customs, and should not harm the interests of creditors for the purpose of evading debts (it should not fight against creditors who do not know about it); the validity of the clause that binds "loyalty obligation" with property punishment is controversial, so it is appropriate to express the property ownership arrangement and emotional obligation separately. After the agreement is signed, it shall be kept together with the list of premarital assets and can be directly used as evidence in divorce proceedings, eliminating the need to reconstruct transactions from scattered bank statements.

Key points of claims and defenses in 7. divorce proceedings

Once the matter proceeds to litigation, the outcome of disputes over premarital property hinges on “who bears the burden of proof and what they must prove.” For the party claiming that a certain property belongs to a premarital individual, the order of proof is suggested as follows: the first step is to submit evidence of the acquisition time (the date of signing the house purchase contract, the date of payment voucher, and the date of ownership registration are earlier than the date of marriage registration); The second step is to submit evidence of the source of funds (the transfer flow points to a pre-marital independent account and no post-marital joint fund injection); The third step is aimed at the value-added part, submit a counter-certificate of "no joint investment after marriage" (loan repayment records show the use of personal accounts and no traces of joint business). After three steps, the chain of proof of personal attributes is basically closed.

The common defenses when the other party claims to divide the value-added can be responded one by one: the other party claims that "the loan has been repaid together after marriage", and checks the source of the repayment funds-if the repayment is made in the personal account before marriage, it does not constitute the joint repayment; the other party claims that "the house value should be divided", distinguishing the natural value-added from the common investment-the general rise of house price is natural value, the obligation to compensate arises only from active investment such as renovation and construction; the other party claims that "the deposits are mixed up" and uses the account flow to prove that the money has always been deposited independently and not intertwined with the common income. On the other hand, the party advocating the division should reverse the fixed joint repayment, joint capital contribution, joint management of the evidence, the "input" to do real, the court will support the compensation request. If the evidence cannot be provided, the court can only make an adverse determination on the basis of the available evidence-the weight of the preparation of the evidence, and directly determine the amount of the discount compensation.

Finally, add a time point: the best time point for signing the property list and written agreement before marriage is before marriage, followed by the beginning of marriage-after many years of marriage, the other party may claim to be coerced and obviously unfair and challenge the validity. Both parties should sign, date and hold one copy respectively when signing, and notarize simultaneously when necessary, so as to avoid "the signature being denied" to the greatest extent ". The earlier the action of property isolation and written agreement, the easier it will be to give evidence in the future.

A common reality gap is worth pointing out: after marriage, many people think that "the money is earned by me, and the house is my personal contribution". However, after marriage, the salary belongs to the common property of husband and wife, and repayment with the common property naturally constitutes joint repayment-unless both parties agree in writing that they own the property after marriage (AA agreement and actual implementation), otherwise, "who earns the money" does not change the nature of joint repayment. The party who advocates individual repayment of loans can only use funds that are truly segregated, such as personal deposits before marriage, and the party who advocates division should seize the fact that "the source of repayment funds is the common income after marriage. If you think about this rule clearly, many pre-marital property cases that "think they are stable" actually have clear room for compensation.

8. Frequently Asked Questions

Must the property before marriage belong to the individual?

In principle, but the down payment before marriage and the value-added of loan repayment after marriage, the conversion of mixing, the active value-added of joint operation after marriage and other exceptions will participate in the division, which cannot be generalized.

How to divide the house with the down payment before and after marriage?

The house generally belongs to the registered party of the down payment. After marriage, the principal and interest of the joint repayment and the half discount of the corresponding value-added part will be compensated to the other party.

savings before marriage is it personal property to buy a house after marriage?

The key lies in whether the funds can be clearly traced: if they have always been held in a separate account and were paid in full from that account at the time of purchase, they may be recognized as a transformation of personal property; however, if the funds were once transferred into a joint account and commingled with marital income, making tracing difficult, the court may deem that they contain a component of marital property.

How to ensure that the property before marriage is not divided?

Preserve evidence of the time of acquisition, maintain segregated accounts, and clearly distinguish the sources of funds used for loan repayments; where necessary, execute a written property agreement accompanied by a detailed property inventory.

During a divorce, it’s discovered that the other party sold premarital property to buy a new home—can the original assets be reclaimed?

If the proceeds from the sale of premarital property can be clearly traced and have not been commingled, the new property may still be recognized as a conversion of individual property; if such proceeds are commingled with marital funds, they shall be treated as marital property. You may apply to the court to investigate the flow of funds and, if necessary, request a division thereof.

9. Practical Insights from a Lawyer

Before marriage is personal, this sentence is only half right. Personal property is protected in principle, but there are three places that are most likely to be lost: pre-marital down payment, post-marital joint repayment of the house, its joint repayment and corresponding appreciation to compensate the other party. Many people mistakenly think that putting the label of pre-marriage is once and for all. It is precisely this kind of laxity that makes personal property mixed with common elements, and finally can not be clearly explained when dividing.

Keeping personal attributes depends on isolation and proof. Separating accounts and avoiding the repeated entry and exit of pre-marital funds and post-marital income in the same card is the least costly approach. For pre-marital real estate, try not to use the common property to repay the loan or decorate on a large scale without leaving a record; for the income generated after marriage, it is necessary to first judge whether it is the natural appreciation of the market or the active appreciation formed by the investment of labor and funds. The two belong to different categories, and the direction of proof and reasoning is also different.

At the negotiation level, if one's own side does have the situation of mixing or repaying the loan together, it is better to take the initiative to propose a reasonable compensation plan in exchange for the concession of the other side on a larger amount of property instead of holding it all to me. On the other hand, if the other side tries to put their own pre-marital property into the common, they should use the voucher to explain the ins and outs of the funds clearly. When necessary, the boundaries are drawn through pre-marital or marital property agreements, which is more proactive than giving evidence afterwards. Whether premarital assets can be protected has never been determined by labels, but by proper planning and solid evidence.

Premarital property belongs to the individual in principle, but the three exceptions of value-added, mixing and joint investment will change the result. The key to keeping personal attributes is "evidence front": keep the acquisition time certificate, pre-marital property independent account, repayment source record, if necessary, with a written property agreement + property list to lock the ownership. When it actually comes to divorce, these documents are far more reliable than verbal claims.