Insights

Three Paths of the Right to Use and the Division of Property Rights of the Divorced Military-delivery House in Ningbo

Ningbo Author：LuXu WANG

The military delivery room is a special field in the division of divorce property. It is not only adjusted by the Civil Code and judicial interpretation, but also restricted by the military real estate management regulations and military policies. Many parties got the court summons to find that although the house has lived for more than ten years, it may only have the right to use and no freely divisible property rights. Whether and what the military delivery room can be divided depends first on its property right form and military status.

The Form of Property Right and the Application of Law in 1. Military Procesence Room

according to its nature, military production houses can be divided into military apartment houses, military property affordable houses, military property fund-raising houses, and military self-built houses. Military apartment housing generally belongs to the military property right, and individuals only enjoy the right to use it. In case of divorce, the property right cannot be divided as the common property of husband and wife. Military affordable housing may acquire personal property rights or part of the property rights after paying the relevant fees and meeting the prescribed conditions. Military fund-raising housing needs to be comprehensively judged in combination with capital contribution, registration and military approval documents.

Dual Management of Local and Military

the "Chinese People's Liberation Army Real Estate Management Regulations" and other regulations require that the transfer, lease, and mortgage of military real estate must be approved. When hearing divorce cases, local people's courts usually adopt a cautious attitude towards military delivery houses: they can clearly define the division of property rights according to law; if they cannot be listed for trading and cannot determine the value of property rights, they will only deal with the right to use or confirm residence interests to avoid the judgment from being unenforceable.

Consideration of Military Spouse Rights and Interests

the non-military party often has long-term residence, decoration, joint loan repayment and other contributions to the military delivery room. Even if the property rights cannot be divided, it can also claim discount compensation for the right to use the house, decoration investment, joint repayment of principal and interest and corresponding value-added. The residence interests of non-military spouses are usually given appropriate protection by the courts in their decisions.

2. has acquired the division of property rights of military affordable housing

military affordable housing can be divided according to the joint property of husband and wife after obtaining the personal property right certificate and meeting the listing conditions of the army and the local government. The division is similar to that of ordinary affordable housing: one party acquires the house and pays compensation, or the sale is divided after the sale. However, due to the low transparency of information in the military delivery room, the assessment often encounters problems such as the internal jurisdiction of the army and incomplete data. The court may refer to the price of the surrounding market to decide the compensation.

Time node for acquiring property rights

if the property right is acquired after marriage, it belongs to the joint property of the husband and wife in principle; if the property right is acquired before marriage and registered in the name of one party, the joint repayment of the loan after marriage and the corresponding value-added part shall be compensated. If the property right is acquired before marriage but after marriage with the joint income to pay the purchase price or related expenses, the corresponding value of the supplementary part shall also be included in the scope of the common property.

The impact of military priority buyback rights.

When some military-owned affordable housing is transferred, the military has the priority to buy back. When the divorce is divided, the court is required to respect the priority and usually does not order the house to be transferred directly to the non-military party, but rather the military party acquires the property or right to use it and compensates the other party. If both parties are not military or military personnel give up their eligibility to purchase a house, the proceeds from the military repurchase may be divided as common property.

Processing path when the 3. only has the right to use

for couples who only have the right to use military apartment housing, the court generally does not directly order the ownership of the housing property at the time of divorce, but deals with the right to use and housing interests. Usually, the military party is sentenced to continue to use the house, and the non-military party enjoys the right of residence or one-time financial assistance for a certain period of time. If the non-military party has other housing in the city or has strong economic capacity, the right of residence may not be supported.

Duration of Residence and Conditions of Withdrawal

the duration of residency is usually related to the age of the children and the ability of the non-military party to settle. If the child is not yet an adult, the non-military party may obtain a period of residence until the child is an adult or completes compulsory education; after the child is an adult, the non-military party shall move out of the house in time or settle the housing separately. The judgment usually makes it clear that no unauthorized sublease or loan is allowed during the period of residence.

Treatment of joint decoration and addition

for houses with only the right to use, the decoration, reconstruction, and additional parts jointly invested by the husband and wife after marriage can be compensated at a discount to the existing value at the time of divorce. The decoration value is generally calculated by residual value, which is determined by professional evaluation or negotiation between the two parties. If it cannot be demolished without affecting the structure of the house, the party who continues to use the house will compensate the other party.

4. military status associated with demobilization fee

in the military demobilization fee, self-employment fee, and transfer fee, the common property portion is calculated by multiplying the length of the marriage relationship by the annual average, which is another important content of the division of military marriage property. Military housing and these costs may be interrelated: the qualification of military housing may be based on military status, and double counting with demobilization fees should be avoided when dividing the house.

Formula for calculating demobilization fee

according to Article 71 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the the People's Republic of China People's Court, the people's court hears divorce cases involving one-time expenses such as demobilization fees and self-employment fees that are divided and distributed to military personnel, The amount obtained is the joint property of the husband and wife by multiplying the annual average. The annual average refers to the amount obtained by dividing the total amount of the above-mentioned expenses paid to the military personnel according to the specific number of years, which is the difference between the average life expectancy of 70 years and the actual age of the military personnel at the time of enlistment.

Avoid duplicate compensation for military delivery room and demobilization fee

if the acquisition of the military delivery room directly corresponds to the military status benefits, and the military party has been included in the demobilization fee and other status benefits at the time of divorce, the court may make a comprehensive consideration of the right to use the military delivery room and the demobilization fee, so as to avoid the non-military party from obtaining the common part of the housing residence right and the full demobilization fee at the same time, resulting in an imbalance of interests.

5. Withdrawal Compensation and Subsequent Resettlement

when the military production house is facing demolition, retirement or troop adjustment, the attribution of compensation or resettlement housing depends on the original housing ownership and resettlement policy. For houses that have acquired property rights, the compensation for demolition and relocation shall be divided according to the joint property of the husband and wife; for houses with only the right to use, the resettlement interest usually follows the military party, and the non-military party can only claim appropriate compensation for part of the investment or residence loss.

Distribution in Demolition Compensation

resettlement houses replaced according to the original housing area or property rights shall follow the original housing property owner; according to the compensation for population resettlement, their respective shares shall be determined according to the scope of the resettlement population. If the non-military party belongs to the resettled population, it may claim rights on its share of the population; if it does not, it is generally not allowed to participate in the division of the resettled part of the population.

Treatment of house repossession after divorce

if the army takes back the house due to policy adjustment after divorce, the party who acquires the property right shall be compensated accordingly; the party with the right to use only has no right to claim compensation from the army, but may claim liability for breach of contract or loss of residence interests against the other party on the basis of the divorce agreement or judgment.

6. case proof

according to similar judgment rules, if the military affordable housing has registered its personal property rights and meets the listing conditions but the military has the priority to buy back the housing, the court usually orders the military party to obtain the housing and pay the discount to the non-military party after making discretionary compensation with reference to the price of the surrounding ordinary commercial housing. The compensation amount is usually in the range of 200,000 yuan to 800,000 yuan. If the evaluation agency cannot evaluate due to the internal jurisdiction of the army, the court, the court may decide according to the evidence. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

According to similar judgment rules, if a husband and wife live in a military apartment for a long time after marriage and have only the right to use and no personal property right, the court generally does not divide the property right of the house, but decides that the military party will continue to use it, and the non-military party will enjoy the right of residence during the minor period of their children, or the military party will give one-time financial assistance, and the amount will be determined in combination with the local rental market price, marriage duration and economic conditions of both parties. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

7. Risk Alert

  • mistake the right to use as property rights: only the military apartment housing use rights, divorce can not be divided property rights, can only deal with residential interests.
  • The military priority buyback clause was not identified: the division scheme may become an empty sentence because it cannot be transferred.
  • Double calculation of military status benefits: military delivery room and demobilization fee, transfer fee may cross, need to avoid double compensation.
  • Ignoring the investment of non-military spouses in decoration: joint decoration and adding undiscounted compensation will lead to an imbalance of interests.
  • No agreement on the distribution of benefits after retirement: after the house is expropriated or recovered, the attribution of compensation is prone to secondary disputes.

8. FAQ

can the military delivery room be divided as common property when divorced?

It depends on the form of property rights. Military affordable housing that has obtained personal property rights and meets the listing conditions can be divided as the joint property of husband and wife; if there is only the right to use military apartment housing, usually only the right to use and residential interests can be dealt with, and the property rights cannot be directly divided.

Soldiers have demobilization fees, how do you calculate the divorce?

The common property portion is calculated by multiplying the number of years of marriage by the annual average. The annual average is equal to the total demobilization fee divided by the difference between the average life expectancy of 70 years and the actual age of the military at the time of enlistment, and the corresponding part of the duration of the marriage relationship is divided by both parties.

Can the non-military party compensate for the decoration of the military delivery room after marriage?

You can. For houses with only the right to use, the joint decoration and attachment after marriage may be compensated at a discount to the existing value.

The military delivery house has been demolished. Who will be compensated?

If the property right has been taken, it shall be divided according to the joint property of the husband and wife; if it is replaced according to the area of the original house, it shall follow the original property owner; if it is resettled according to the population, the non-military party may claim its share if it belongs to the resettled population.

Practical Experience of 9. Lawyers

military delivery room is a special field in divorce division. It is not only adjusted by the civil code and judicial interpretation, but also restricted by the military real estate management regulations and military policies. Therefore, to deal with such problems, the first step is not to advocate division in a hurry, but to see clearly its property right form and the military status of the parties concerned: military apartment housing generally belongs to military property rights, individuals only have the right to use it, and property rights cannot be divided according to the joint property of husband and wife during divorce. Military affordable housing can only obtain individual or partial property rights after paying the relevant fees and meeting the prescribed conditions. If we talk about segmentation without a clear understanding of the form, it is easy to fall short.

After checking the bottom line, we'll talk about what we can divide. The materials that need to be understood include the nature of the property right of the house, whether personal or partial property right has been obtained, whether there is any approval document of the army, the capital contribution and registration information of the current year, and whether it involves compensation for vacating and subsequent resettlement policies. Many of these materials are not in the hands of the parties themselves and need to be verified through the army or relevant channels. It often takes time. The earlier you prepare, the more calm you are. The focus of the judgment is how much part of the house belongs to the joint property of the husband and wife, rather than simply taking it for many years to claim the property right.

If the house has only the right to use and no property rights that can be freely divided, the realistic approach is not to fight for property rights, but to talk about transitional arrangements for residence and corresponding compensation. For matters related to the army policy, it is better to find out the policy caliber before making a request, otherwise it is easy to put forward a plan that cannot be implemented in procedure. When negotiating, make a clear inventory of available resources and distinguish between what can be contested and what can only be resettled. On the contrary, it is easier to negotiate an agreement that can be fulfilled.

The division of military housing must first clarify the form of property rights, and then decide whether to distribute residential benefits according to the property rights discount, according to the right to use, or to deal with it separately after the conditions are achieved. Factors such as military status benefits, demobilization fees, military priority repurchase rights, and retirement and resettlement policies are intertwined. When dealing with them, double counting and imbalance of interests should be prevented. Non-military spouses should focus on collecting evidence such as decoration investment, joint loan repayment, long-term residence, and resettlement population status, and strive for the discount of the right to use or the protection of residential interests. Before filing a lawsuit, it is recommended to verify the ownership of the house, transaction restrictions and preferential repurchase clauses with the military housing management department or real estate registration agency to avoid the litigation plan being unable to land due to policy obstacles.