Insights

Which arrears in Ningbo will be counted as joint debts of husband and wife

Ningbo Author：LuXu WANG

Why should I pay back the money he borrowed? It was clearly a debt spent by the family. Both sides felt wronged when they divorced. In fact, there are clear rules for the determination of the joint debt of husband and wife. It is neither as simple as who signs it, nor is it shared within marriage.

Legal framework for the 1. of common debt

the determination of the joint debt of husband and wife mainly depends on three points: whether it is based on the common intention of both parties, whether it is borne by the daily needs of the family, and whether it is used for the joint life or joint production and operation of husband and wife. The three layers of logic are progressive, and as long as one of the layers falls into it, it may be recognized as a common debt.

With the common word as the core

the essence of joint debt is that the money ultimately serves the couple's community. A purely personal profligacy, personal business and no benefit to the spouse at all usually does not constitute a joint debt, even if the borrowing occurs during the marriage.

2. the principle of co-signing and co-debt.

The joint signature of the husband and wife, or the debt that the other party later recognizes after one party raises the debt, is a joint debt. This is the least controversial situation, the signature is shared, after the claim of ignorance is basically invalid.

Later recognition also counts

if one party borrows first and the other party ratify it through written confirmation, repayment behavior or clear chat reply, it also constitutes a joint debt. Simple silence is generally not a ratification, need to have a clear meaning.

3. for the daily life of the family

debts incurred by one party in its own name for the daily needs of the family, such as food, clothing, housing, daily medical care, and children's education expenses, are usually recognized as joint debts and do not have to be signed by both parties. The judgment criteria will be combined with the consumption level of the average local household. Taking Ningbo as an example, the judgment will compare the matching degree between the daily consumption level of the family and the amount of the loan. If the amount obviously exceeds the scope of daily expenses, the creditor must provide additional evidence (according to the open case of Ningbo Intermediate People's Court).

Beyond the daily needs of additional evidence.

Large debts that clearly exceed the daily needs of the family are not, in principle, joint, and the creditor must prove that the money is used for the husband and wife to live together or jointly produce and operate, otherwise it will be borne by the individual borrower. As for how much is large, it varies from place to place, and those that are usually equivalent to or higher than the annual income level of the family need another certificate.

Protection of 4. Creditors in Good Faith

in order to protect the security of the transaction, it is indeed used for joint life and operation and the creditor has fulfilled a reasonable obligation to review, the debt may be considered a joint debt. However, creditors cannot of course presume that the husband and wife share the burden. If the spouse is not required to sign or verify the purpose when lending large sums of money, they often have to bear the consequences of not being able to provide evidence.

5. of personal debt

debts that exceed the daily needs of the family, that the creditor cannot prove to be used for common life or joint production and operation, and that have not been expressed by both parties, are personal debts of the borrowing party; if the husband and wife agree to bear their respective debts and the creditor is aware of the agreement, they are also treated as personal debts. Debts arising from illegal activities such as gambling are also not joint debts.

Creditors bear the burden of proof

for large loans that exceed daily needs, the burden of proof falls on the creditor's side. The spouse does not have to prove his innocence, but only needs to raise reasonable questions about the whereabouts of the funds, so that the other party cannot produce the vouchers for living together, and the claim is difficult to establish.

How to deal with 6. when they are sued by creditors.

If you suddenly receive a court summons and are listed as a co-defendant, the first step is to check the time, amount and purpose of the loan, the second step is to apply for the transfer path of the money, and the third step is to raise a defense around whether the funds flow into the family. The whole process should be completed within the certification period, and it is often too late to wait until the day of the court session.

Three types of defense are the most common

common valid defences include: the borrowing occurred outside the marital relationship, the flow of funds was not related to household expenses, the amount of the loan significantly exceeded the level of daily household consumption, and the creditor's failure to review the obligation. Those who can put forward the details of the transfer and the actual expenditure of the family at the same time are the most convincing.

7. case proof

in practice, the husband borrowed about 800000 yuan in his own name for personal business, the wife did not benefit and the creditor did not prove that it was used to live together, the court ruled that the husband's personal debt, the wife is not liable for repayment.

In practice, one party borrows 60000 yuan in his own name for his children's medical treatment, which is the daily needs of the family. The court determines that it is a joint debt of husband and wife, which shall be repaid by both parties.

In practice, the creditor did not require the spouse to sign when lending 150000 yuan, nor could he explain the whereabouts of the funds. After the spouse submitted the comparison materials of the family's annual expenditure of about 100000 yuan, the court found that the debt exceeded the daily needs and was borne by the borrower.

According to the judgment of Cixi Court (2018) Zhejiang 0282 Minchu No. 7747 and Ningbo Intermediate People's Court (2019) Zhejiang 02 Minzong No. 1524, if the amount exceeds the daily needs of the family, the creditor must prove that it is used for the husband and wife to live together, produce and operate together or have a common intention, otherwise it will not be recognized as the husband and wife's joint debt. According to the Ningbo Intermediate People's Court "to the case" "divorced," account "how to calculate?" (2014-08-05), the marriage during the loan, the other party's knowledge and for the family to live together, can be identified as the joint debt of husband and wife; divorce agreement on the debt of the third party is invalid, but one party can actually pay off the other party to recover.

8. Risk Alert

  • think who signed who also, ignoring the family daily life needs this layer of identification.
  • I didn't understand the principle of co-signing and co-debt, so I signed the debit note.
  • In the face of large debts without raising questions about the use of funds, they were found to be common in vain.
  • The debts incurred by one party's personal business are collected in full as joint debts.
  • Replying with repayment behavior or chat inadvertently constitutes post-mortem ratification.
  • After receiving the summons, it was delayed until the court session was ready, and the evidence period was missed.

9. FAQ

how to determine the joint debt of husband and wife?

See whether there is a common meaning, whether it is for the daily needs of the family, or whether it is used for common life and common production and operation.

Is a large sum of money secretly borrowed by one party common?

Exceeding daily needs and not proven to be used for living together is generally not counted and is borne by the individual borrower.

Is the ratification valid after the fact?

Effective. Clear written confirmation or repayment behavior constitutes ratification, simple silence generally does not count.

Do you want both parties to sign a small household loan?

You don't have. Debt for the daily needs of the family is usually directly identified as joint debt.

Practical Experience of 10. Lawyers

there is actually a clear level of judgment behind why he wants me to repay the money he borrowed: whether the debt is based on the common meaning of husband and wife, whether it is for the needs of the family's daily life, whether it is used for the husband and wife to live together or to produce and operate together. As long as it falls into one of these layers, it may be considered a joint debt, and conversely, a purely personal profligacy, personal business and the spouse is not at all beneficial, even if it occurs within the marriage, is usually not a joint debt. Therefore, when facing the creditor's claim, don't rush to argue about the right and wrong of your feelings, but clarify the three questions of who borrowed the money, where it was used, and whether you benefited.

When it comes to specific circumstances, those who sign together and those who ratify afterwards are the most difficult to turn over: those who sign together, or those who express ratification through written confirmation, repayment behavior and clear chat reply, basically cannot escape sharing. Therefore, before signing any documents involving loans, guarantees and company resolutions, you should see the contents clearly. Don't try to make it convenient for the other party to walk through the account and sign a word. Small debts for the daily life of the family, such as food, clothing, housing, daily medical care and children's education expenses, are usually determined to be common, and the judgment will be combined with the consumption level of the average local family. Large debts that obviously exceed the daily range should be separately proved by the creditor to be used in common life or common operation, and the burden of proof is on his side.

When sued by creditors, the right thing to do is to actively respond to the lawsuit rather than avoid it. The focus of responding to the lawsuit is two things: one is to advocate the distribution of the burden of proof, requiring the other party to prove that the debt is used for common life or common business, rather than requiring you to bear it based on the occurrence of marriage alone; The second is to prepare evidence that you did not participate in and did not benefit, such as the running water managed separately from the family expenses and the company's funds, and your record of transactions that you have stable income and do not know about borrowing. At the same time, pay attention to whether the creditor listed the spouse as the defendant and whether the facts were found together in the original lawsuit. Early handling and early defense are much less labor-saving than trying to find a way to do it again at the implementation stage.