Insights

Do you want your spouse to carry the money owed before Ningbo gets married?

Ningbo Author：LuXu WANG

Is it legal for a debt that the other party carried before marriage to come to you and ask you to pay it back after a divorce? Personal debt before marriage does not become a joint debt just because of a marriage license, but there are indeed several situations that can get a spouse on it, and the key depends on where the money is later spent.

1. the general characterization of premarital debt.

Debts incurred by one party in his or her personal name prior to the registration of the marriage are, in principle, his or her personal debts, which are repaid by his or her personal property and are not borne by the spouse of course. The fact of marriage itself does not automatically turn personal debt into common debt, which is the basic starting point for dealing with such disputes.

Look at the time the debt occurred.

The first level of characterization is whether the debt is formed before or after the marriage registration. The formation of the time before, presumed to be personal debt. The date of debit note, transfer time and contract signing date are all key nodes.

2. is in principle a personal debt

pre-marital purchase loans, pre-marital consumption arrears, pre-marital business turnover, etc., as long as they are not used to live together after marriage, after the divorce is still repaid by the borrower alone, creditors can generally only claim to themselves, can not require the spouse to bear joint and several liability.

Spouses do not bear the basis of joint and several

there is neither the intention of joint borrowing nor the use of money for living together, and the spouses lack the legal basis for joint and several liability. Faced with the general recovery of creditors, the spouse can raise this defense positively.

3. into a common situation

if the property acquired by the pre-marital debt becomes joint property after marriage, or if the debt is actually used by the married couple to live together, it may be partially converted into a joint debt, which the spouses are required to bear within the scope of the benefit. The most typical is the pre-marital loan to buy a house, after marriage to repay the loan and live together.

The scope of benefit is to bear the border.

Even if conversion occurs, the commitment is limited to the portion of the debt used for common life, not the full amount. To prove the flow of debt is the core work of demarcating this boundary.

4. evidence and defense

the party claiming joint and several liability shall prove that the debt was formed before marriage and was not used for common life. The allocation of the burden of proof often directly determines the outcome.

5. used for living together after marriage

in principle, the debt incurred before marriage is borne by the individual, but if the money is actually used for the husband and wife to live together or operate together after marriage, such as the down payment of the wedding house, the decoration money, and the turnover of the joint store, the other party may be deemed to be jointly repaid. The criterion is the actual use of the funds, not the point in time at which the borrowing occurred.

Look at where the money goes, not when it's borrowed.

The bank flow, payment vouchers and the actual use of one-to-one correspondence, is the winner of this type of dispute. If it can be proved that the money is credited to the other party's personal account and used for personal consumption, the claim of joint repayment is difficult to establish.

How to find out the other party's debt before 6. marriage.

If you want to find out the debt status of the other party before getting married, you can ask the other party to print and produce a personal credit report. This is the most direct way; you can also inquire through public channels whether there is an enforced person, a record of restricting high consumption, and the company under your name. Involved in litigation. Personal credit reports can be queried through the online channel of the People's Bank of China Credit Center, or printed through self-service inquiry equipment at bank outlets.

Separate risks by written agreement

if it is found that the other party has a large amount of pre-marital debt, a written property agreement may be signed before marriage to clarify the attribution arrangement of their respective pre-marital debts and marital income. The agreement should be specific to the list of debts and the effective time, the cage unified sentence does not bear responsibility, after the fact is often difficult to prove.

7. case proof

in practice, the man's personal loan of 350000 yuan before marriage was not used to live together after marriage. After divorce, the creditor claimed repayment from him personally, and the court did not order the woman to bear joint and several liability.

In practice, the vehicle purchased by the woman on a pre-marital loan is used jointly by the husband and wife for a long time after marriage, and the court determines that about 40 per cent of the debt is a joint debt within the scope of the joint benefit of the vehicle.

In practice, one party's pre-marital loan to buy a house and the joint repayment of the loan after marriage total about 260000 yuan. At the time of divorce, the house still belongs to the property registration party, but it should compensate the other party for the joint repayment part and the corresponding appreciation.

8. Risk Alert

  • I thought that once I got married, the other party's old debt would automatically become two people's.
  • Not understanding that pre-marital debt is in principle an individual, frightened by a word from creditors.
  • There was no evidence to prove that the money had not been used for living together.
  • Ignore the boundary of the scope of benefits and take part of the conversion as a full commitment.
  • Before marriage do not check the other party's credit, after marriage to find a large debt.
  • Only oral commitment, no written property agreement.

9. FAQ

do you want to pay back the debts you owe before marriage after divorce?

Not in principle. Personal debts before marriage are repaid by the individual borrower, and the spouse is not ipso facto jointly and severally liable.

Under what circumstances will it become a joint debt?

If the debt is actually used to live together after marriage, or if the property purchased becomes common property after marriage, it may be partially converted.

How to defend being recovered by creditors?

The burden of proof to prove that the debt was formed before marriage and was not used for common life is on the party claiming common.

Do you want to pay the full amount after conversion?

No need. Only to the extent that the debt is used for the benefit of living together, the excess remains a personal debt.

Practical Experience of 10. Lawyers

the debt carried by the other party before marriage, after the divorce, the creditor comes to you to pay it back together, this situation is not necessarily established. The first hurdle of judgment is the time when the debt is formed: the debt incurred in the name of the individual prior to the registration of the marriage is, in principle, his personal debt, repaid by his personal property, and not borne by the spouse. However, there are indeed several situations that will make the spouse "get involved". The key depends on where the money is spent later-if it is used to live together after marriage, it may be included in the scope of joint debt. Therefore, when you encounter a creditor's claim, don't rush to recognize it first, and clarify the two lines of time and purpose.

If you are a spouse who does not want to bear the debt, the focus of the defense also falls on this link: neither the intention of joint debt, nor the money is used for family living or joint business, and you do not even know it beforehand. The allocation of the burden of proof here is relatively beneficial to you-those who advocate common debt need to prove that the debt is used to live together, which you can refute with the actual situation of capital flow and household expenses. On the other hand, if you are a creditor and want your spouse to bear the burden together, you have to complete the chain of evidence "for living together". An IOU and the sentence "they are a family" are usually not enough.

A smarter approach is to put effort into pre-marital understanding and post-marital information communication. When preparing to get married, you have an understanding of the other party's real debt situation, not distrust, but be responsible for the common life. After marriage, if you find that the other party has large debts outside, you should keep an eye on it as soon as possible and keep the vouchers of the family's common expenses and the transactions in your own account clearly so that you can tell which money is "your own" in the future ". In the case of an agreed divorce, don't try to save trouble by writing general clauses such as "no common debt between the parties", which may not be effective for bona fide creditors, but may also conceal the true debt and affect future internal sharing. It is much more useful to list known debts one by one and who will bear them.