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Ningbo Divorce Housing Provident Fund Balance Extraction and Segmentation 6 Steps

Ningbo Author：LuXu WANG

The money in the housing provident fund account is usually visible but not used. When it comes to divorce and division, it often becomes a neglected small treasury. Many people think that the provident fund belongs to the subsidiary part of their salary and naturally belongs to the individual when they divorce. Some people also heard that the provident fund cannot be withdrawn and felt that it cannot be divided. In fact, the balance of provident fund deposits during the existence of the marriage relationship belongs to the joint property of the husband and wife, and can be withdrawn or divided at a discount when the legal conditions are met.

Legal Attributes of 1. Provident Fund Balance

article 25 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code clearly stipulates that during the existence of the marriage relationship, the housing subsidies and housing provident funds actually obtained or should be obtained by both men and women belong to the Civil Code. Article 1062 stipulates that "other property that should be jointly owned". This means that as long as the provident fund is paid into the personal account during the marriage, whether or not it is actually withdrawn, it is in principle the joint property of the husband and wife.

Understanding of "should be obtained"

provident funds are deposited by units and individuals on a monthly basis, and even if they have not yet been withdrawn, employees have the ownership expectation interest in both the unit's deposit and the individual's deposit. Therefore, in the divorce property division, the provident fund account balance can be directly used as the subject of division, do not need to wait until retirement or purchase of housing to deal.

The relationship between provident fund and wage income

although the housing provident fund is deducted proportionally from the wage base, it is not purely personal savings. The unit deposit part belongs to the housing welfare given by the employer and has the attribute of social security, while the individual deposit part is a kind of directional accumulation of wage income. The part acquired by both during the marriage is included in the scope of common property.

2. the distinction between pre-marital and post-marital deposits.

Provident fund accounts are usually accumulated continuously, and the deposit records before and after marriage are mixed in the same account. When dividing, it is necessary to distinguish between the pre-marital personal part and the post-marital common part.

Bound by the date of marriage registration

the simplest and most operational way to distinguish is to use the marriage registration date as the demarcation point. The balance in the account before the date of registration of the marriage shall, in principle, belong to the personal property before the marriage; the balance paid in after the date of registration shall, in principle, belong to the joint property of the husband and wife. If there is a record of withdrawals before and after marriage, the use of each withdrawal needs to be further tracked to determine whether there is a consumption of common property.

Processing of extraction after marriage for living together

if the provident fund withdrawn after marriage is used to repay the loan of the couple's common house, pay for family decoration, children's education or daily living expenses, it is generally regarded as the common property that has been consumed and is no longer treated as the remaining divisible property. However, if one party withdraws a large amount in a short period of time before the divorce and cannot explain a reasonable use, it may be considered a transfer of property.

Statutory conditions for 3. withdrawal of provident funds

article 24 of the Regulations on the Administration of Housing Provident Fund stipulates a number of situations in which employees can withdraw the balance of the housing provident fund account. Among them, the most relevant to the division of divorce mainly includes the purchase, construction, renovation, overhaul of self-occupied housing, and repayment of the principal and interest of the house purchase loan., And retirement, retirement, complete loss of labor ability and termination of labor relations with the unit, exit settlement, etc.

Divorce itself is not a direct extraction condition

it is important to note that divorce itself is not a statutory provident fund withdrawal. If the two parties do not buy a house, repay the loan and other conditions that meet the withdrawal conditions, they cannot directly withdraw all the provident fund on the grounds of divorce. This is also a lot of parties in the divorce split provident fund encountered practical obstacles.

Feasibility of extraction by convention

if the divorce agreement or court decision specifies that one party is entitled to a share of the provident fund, the other party may handle the withdrawal as agreed when the withdrawal conditions are met, or in the case of obtaining a house, repaying a loan, etc. In cases where extraction is not possible, it is usually resolved by means of discount compensation.

The 6-step operation of provident fund division in 4. divorce.

The first step is to check the account balance and deposit details to obtain the complete deposit record during the marriage relationship. The second step is to calculate the amount and interest of the joint deposit after marriage, taking the date of marriage registration as the boundary. The third step is to determine whether there are situations that meet the conditions for withdrawal, such as home purchase, loan repayment, retirement, etc. The fourth step is to negotiate and determine the division method: cash division, account balance transfer or discount compensation after one party withdraws. The fifth step, the division plan will be written into the divorce agreement or litigation request, and clear processing time limit. The sixth step, according to the agreement or judgment, if necessary, apply to the court for enforcement.

Practical details of inquiry and retrieval

provident fund deposit details can be queried through the local housing provident fund management center official website, WeChat public number, government service client or offline window. In the lawsuit, you can also apply to the court to issue an investigation order to the housing provident fund management center to obtain the deposit and withdrawal records of the other party during the existence of the marriage relationship.

Discount compensation in the event that the 5. cannot be withdrawn.

When neither party meets the statutory withdrawal conditions, the provident fund cannot be realized immediately. At this time, it is common practice for the account holder to retain the provident fund while paying the other party a discounted compensation equivalent to half of the portion of the joint deposit after marriage.

Basis of calculation of discount

the discount is generally calculated on the basis of the post-marital co-deposit balance at the time of divorce or division. If, at the time of divorce, the parties are unable to determine whether the deposit will continue in the future, they may divide only the balance as of that date.

Whether interest is included in the split

interest income in the provident fund account is also distinguished by pre-marriage and post-marriage. Interest arising during the marriage, which is the fruit of the common property, shall be included in the scope of the division, while interest arising from the premarital balance shall be personal property.

6. evidence collection and query path

the controversy over the division of provident funds is usually small, and the difficulty lies in information asymmetry. One party may not know the other party's account information, or the other party made a surprise withdrawal before the divorce. It is recommended that evidence be gathered from the following perspectives:

basic Identity Information

including the name of the other party, provident fund account number, ID card number, etc. In many areas, only the name and ID number are required for provident fund inquiries, but more specific account information is usually required to obtain details in litigation.

Record of contributions during marriage

focus on the monthly deposit details from the date of marriage registration to the period of divorce proceedings, including unit deposit amount, individual deposit amount, interest income, withdrawal record, etc. These materials are the core basis for calculating the scope of joint property after marriage.

Trace of exception extraction

if it is found that the other party has a large withdrawal record in the short term before the divorce, it should further request to explain the purpose. If it is used for family living together, the corresponding documents shall be provided; if it is impossible to explain or obviously unreasonable, it may claim the transfer of property and request less or no division.

7. case proof

according to similar adjudication rules, one party continues to deposit the housing accumulation fund during the marriage. At the time of divorce, the account has a balance of hundreds of thousands of yuan after marriage, and the other party advocates division. The court usually takes the date of marriage registration as the boundary, recognizes the balance before marriage as personal property, and the part of the deposit after marriage and the corresponding interest as the joint property of the husband and wife. In the judgment or mediation, the account holder shall pay half of the discount compensation to the other party. If the legal withdrawal conditions are met, the cash division after withdrawal may also be agreed in the agreement. 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 the rules of similar adjudication, one party withdraws a large provident fund on the grounds of repaying the purchase loan during the divorce proceedings, but actually uses it to repay the personal premarital debt or transfer it to another person, and the other party claims that the withdrawal constitutes a transfer of the joint property of the husband and wife. The court usually reviews the authenticity and reasonableness of the purpose of the withdrawal, and for large expenditures that cannot be proved to be used for the couple's living together, the party may be divided less or not at the time of division under article 1092 of the Civil Code. 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.

8. Risk Alert

  • mistake all of the provident fund as personal property, omitting the divisible part of the common property.
  • Failure to distinguish between pre-marital and post-marital deposits has led to the erroneous inclusion of personal property in the scope of division or the undercalculation of common property.
  • Direct application for withdrawal of provident fund on the grounds of divorce may be rejected by the management center because it does not meet the statutory conditions.
  • A sudden withdrawal of provident fund before divorce and failure to explain the purpose may be considered a transfer of property.
  • The agreement does not specify the processing period and discount compensation standard, the subsequent implementation is difficult.

9. FAQ

do provident funds have to be withdrawn when divorcing?

Not necessarily. Divorce itself is not a statutory provident fund withdrawal. If the withdrawal conditions such as purchase, loan repayment, retirement, etc. are met, they can be divided after withdrawal; if the conditions are not met, the account holder usually retains the account and pays the other party half of the discount compensation for the joint deposit after marriage.

Do you want to divide the provident fund deposited before marriage when you divorce?

The provident fund deposited before marriage and its corresponding interest belong to personal property and generally do not participate in the division in the event of divorce. The scope of the division is based on the balance and interest paid after the date of marriage registration.

How to check the other party's provident fund deposit details?

You can inquire through the official website of the local housing provident fund management center, WeChat public number, and government service client, or you can entrust a lawyer or apply to the court to obtain it from the provident fund management center. Applying for a court investigation order in a lawsuit is a safer way to obtain evidence.

What if the other party took the provident fund and spent it?

If the withdrawal took place before the divorce and cannot be proved for the couple's joint life, it may be considered as a transfer of the couple's joint property. It may be claimed that the transferring party should be divided less or not at the time of division and that compensation for the loss should be claimed.

Practical Experience of 10. Lawyers

the provident fund is the most easily overlooked small vault in divorce. Many parties think that it depends on the salary, divorce naturally belongs to the individual, or when they hear that it cannot be withdrawn, they feel that it cannot be divided. In fact, the balance of the provident fund deposited during the existence of the marriage relationship belongs to the common property and can be withdrawn or divided at a discount when the conditions are met. Therefore, the first step is to distinguish between in-marriage and out-of-marriage deposits: the part deposited before marriage belongs to the individual, and the part deposited in proportion after marriage is the object to be dealt with. This line should be drawn first, and then the calculation is based.

The operation can be carried out in several steps: first check the provident fund account information and deposit details of yourself and the other party, then calculate the deposit part in marriage separately, and then see whether the withdrawal conditions are met and whether it can be directly raised; If the withdrawal conditions are not met, it is considered that the party holding the account will continue to hold it and make discount compensation to the other party. Evidence and inquiry paths should be arranged in advance. The deposit records of provident fund management centers and units are important sources. You can also apply to the court for access in litigation. Keep the account details, time span and calculation process on file for future use in both negotiations and litigation.

What needs to be reminded is that the division method of provident fund is different from that of deposit. The account cannot be simply divided into two. In practice, it is mostly realized by amount settlement or discount compensation. Therefore, when writing the agreement, it is necessary to clearly write down the amount, payment time and payment method. Don't just write down a provident fund to each other. It is very likely that you will give up the share that should belong to you. At the same time, it should be noted that the account balance will continue to change with the deposit, and the negotiation and calculation time should be unified, otherwise the figures calculated today will not match in a few months. Write down the time point, amount and basis of each sum clearly so that there can be evidence for negotiation.

The legal logic of the division of the housing provident fund is not complicated: the part deposited during the marriage belongs to the joint property of the husband and wife, and the divorce should be divided according to law. The practical difficulties lie in the distinction between before and after marriage, the limitation of legal withdrawal conditions and the tracking of the whereabouts of funds. It is recommended not to omit the invisible asset of provident fund in the division of divorce property, to retrieve the deposit details as soon as possible, to clarify the common scope after marriage, and to choose the withdrawal division or discount compensation scheme according to whether the withdrawal conditions are met. In the case of sudden withdrawal before divorce and unable to explain the purpose, we should actively advocate the transfer of property with little or no consequences, so as to safeguard their legitimate rights and interests.