Insights

Ningbo four types of debt divorce without the need for husband and wife to share.

Ningbo Author：LuXu WANG

When it comes to divorce debts, many people are afraid of being "indebted"-will the money secretly borrowed by their spouses, the money they gambled, or even the debts they forged in collusion with others become half of their own when they divorce? The conclusion first: not all marital debts are shared, and the law explicitly excludes joint repayment of several types of debts that are obviously not common: first, large debts that the borrower exceeds the daily needs of the family in his own name and are not used for the husband and wife to live or operate together; second, forged debts in collusion with a third party; third, debts incurred by illegal activities such as gambling and drug abuse; fourth, the husband and wife agreed that the property belongs to each other and the creditor knows the debt. By adhering to the three criteria—joint signing, everyday use, and shared purpose—an individual who did not sign, did not benefit, and whose funds were not deposited into the household account is not obligated to assume liability for the other party’s debts.

1. Determining the main line: The three filters of Article 1064 of the Civil Code

In determining whether a debt incurred during marriage is to be jointly borne, the core remains the three criteria established in Article 1,064 of the Civil Code, which act like three filters—allowing only truly joint debts to pass through while excluding individual debts.

  1. Whether there is a joint expression of intent: If both parties sign jointly, or if one party subsequently ratifies the agreement—joint signing or subsequent ratification constitutes a joint debt;
  2. Whether it constitutes a debt for the daily living needs of the family: If one party incurs debt in their own name for the daily living needs of the family, such debt shall be regarded as joint debt;
  3. Is the portion exceeding daily needs used for common living or joint production and business operations?: Debts exceeding the needs of daily family life are initially presumed to be individual debts; only if the creditor can prove that such debts were used for common living expenses or joint business operations shall they be deemed joint debts.

When you receive a debt, first ask these three questions: Who signed it? What was the money used for? Did your family benefit from it? Once you have clear answers, it will be obvious whether or not you should repay it. In addition to the three-tier screening mechanism, four categories of debt are explicitly excluded; these will be examined one by one below.

2. Category One: Large debts incurred in one party's individual name, exceeding everyday needs and not used for common purposes.

A large debt incurred by one spouse in their own name that exceeds the needs of daily family life shall be repaid by the borrowing spouse personally if it was not used for the common life of the couple or for their joint production and business activities, and the creditor is unable to prove its intended use. Key points:

  1. A large loan cannot be presumed to be a joint obligation solely on the basis of being incurred during marriage.: When the loan amount significantly exceeds the family’s usual level of consumption—such as hundreds of thousands of yuan used for investment, business operations, or personal expenses—it cannot be automatically deemed joint marital debt solely on the basis that it was incurred during the marriage.
  2. The burden of proof lies with the creditor: If a creditor asserts that a debt is a joint obligation, the creditor must prove that the funds were used for the couple’s common living expenses or for their joint business operations. If it cannot be proven, the debt will fall on the individual who incurred it.
  3. The party that did not incur the debt is not required to prove that no money was spent.: The law allocates the burden of proof to the creditors who claim the joint debt, which is the liability exemption space for the party who has not signed or benefited by the law; however, after being sued, they should still actively respond to the lawsuit, cooperate to find out the flow of funds, and make the chain of evidence that "the money has not entered the family" true.
  4. Supporting documents: loan contract, loan disbursement records, sources of household expenses, and fund transfers between the other party’s account and the family’s account, etc. Funds deposited into one party’s separate account and used for their sole proprietorship, where the family account does not receive any corresponding benefit, are more likely to be deemed personal debt.

3. Category Two: False and Forged Debts

If one party colludes with a third party to fabricate debt with the intent of misappropriating or obtaining a larger share of the marital property during divorce, such “false debt” shall not be recognized as joint marital debt under the law, and the party fabricating the debt shall also bear legal liability.

  1. Forms of fabricated debt include: promissory notes with backdated dates, “transfers” that involve no actual flow of funds (funds entering and leaving on the same day), and false loan documentation provided by relatives and friends, among others.
  2. No joint debt is established: A forged debt lacks a genuine creditor-debtor relationship and, consequently, cannot be deemed “used for common living expenses”; therefore, it does not constitute a joint debt.
  3. Liability of the counterfeiter: Article 1092 of the Civil Code stipulates that if the joint debt of husband and wife is forged in an attempt to occupy the property of the other party, the party can be divided less or not when the joint property of the husband and wife is divided by divorce; if the evidence is forged in the lawsuit, the party may also face legal liability such as fine and detention that hinders the civil lawsuit.
  4. Identification and response: for the "large debts" suddenly appeared by the spouse, check the formation time of the IOU, whether the fund flow is true or not, and the relationship between the lender and the spouse; when the debt is collected, apply to the court to obtain the loan contract and the bank flow, and overturn the forged creditor's rights by "no real fund flow.

4. Category Three: Debts incurred from illegal activities such as gambling and drug use.

Debts incurred by one spouse as a result of illegal or criminal activities such as gambling or drug abuse do not constitute marital joint debts; they shall be borne solely by the debtor, and the other spouse shall not be held jointly liable. Two points of extension:

  1. Illegitimate debts are not protected by law: gambling debts and loans incurred for drug use have unlawful underlying relationships, making it difficult for creditors to obtain judicial support for their claims, let alone establish such debts as joint liabilities.
  2. The innocent spouse does not have to pay: This is the bottom-line rule protecting the innocent party—where the spouse neither participated in nor benefited from the debt, they cannot be dragged into gambling debts simply because of their marital relationship. In practice, a spouse should avoid paying off gambling debts or online loan debts on behalf of the other party—such payments may be construed as an expression of joint liability, thereby exposing the payer to potential liability.

5. Category Four: Specifically Agreed Personal Debts (Creditor Is Aware)

The third paragraph of Article 1065 of the Civil Code stipulates that the property acquired during the existence of the marriage relationship between husband and wife shall be owned by each other, and if the relative knows the agreement, the personal property of the husband or wife shall be paid off. Requirement breakdown:

  1. On the condition that a written property agreement is in place: the spouses must, in writing, agree that their respective property shall be owned individually (separate property regime);
  2. The key lies in the creditor's knowledge: if the creditor knows the agreement when lending, the debt will be paid off with the personal property of the borrower; if the creditor does not know, the agreement cannot be used against the creditor, and the debt may still be treated as a joint debt;
  3. The burden of proof for “knowing” lies with the party asserting the claim.: The party advocating the application of this rule must prove that the creditor was aware—e.g., by demonstrating that the property arrangement was specified in the loan agreement, mentioned in WeChat communications, or explicitly disclosed in prior transactions. If no evidence can be presented, the agreement may fall through.

This provision represents an extension of the agreement-based property regime into the realm of debt, and it constitutes an exception to the principle that “internal agreements do not affect third-party creditors”—provided that the creditor genuinely knew about the agreement, rather than merely relying on the couple’s unilateral assertion.

The proof form of "creditor's knowledge" is worth developing: the loan contract directly states that "the borrower's husband and wife implement separate property system, and the debt is paid off by the borrower's personal property", which has the strongest proof; the property agreement mentioned in WeChat or email before lending, which the other party has known, can be used as supporting evidence; one of the husband and wife delivers the written "Property Agreement Notification Letter" to the creditor and obtains the signature, it is a prudent practice to proactively construct "informed" evidence. Conversely, if there is only an internal agreement between the spouses with no disclosure to third parties, the creditor may fully assert that it was unaware of such arrangement. For couples who implement the separate property system, it is suggested that the property agreement should be disclosed in writing to the major creditors (banks and large-sum lenders) and the certificates should be retained. At the same time, attention should be paid to the standard terms of the bank's joint debts to the couple (such as the statement of the co-borrower)-if the statement of the co-borrower is signed, it is difficult to resist financial institutions even if there is an internal separate property agreement.

6. How to defend when asked to repay a debt: three key points and evidence organization

Upon receiving a debt collection notice or a lawsuit from a creditor, first carefully determine the nature of the debt: whether you signed any documents, whether the funds were used for household purposes, whether it is an illegal debt such as gambling-related, and whether there are any signs of forgery. The defense organizes evidence around the three key points of “no joint signature, no mutual benefit, and no use for common purposes”:

  1. Not co-signed: There is no personal signature on the loan contract or promissory note, and there is no indication of intent to jointly borrow.
  2. Not Benefited: The funds have not been deposited into the family account, and there is no correlation between the family expenses and the loan; the salary statements are sufficient to cover the family’s expenditures.
  3. Not used jointly: Apply to the court to subpoena the loan contract and the disbursement records to prove that the funds were used for the borrowing party’s personal business operations, personal consumption, or transferred to a third party.

Passive acknowledgment is the most dangerous—once you make a repayment commitment or partial payment during debt collection records or repayment negotiations, it may be deemed as subsequent ratification, thereby triggering joint and several liability. Actively defending the case and requesting the court to subpoena bank transaction records are far more effective than mere verbal denials and are better at preventing fictitious debts from being enforced.

The procedural actions after being sued should step on the right point: submit the defense within 15 days from the date of receiving the copy of the complaint (no submission will not affect the trial); submit evidence within the time limit specified by the court and apply for obtaining bank running water and loan contract; submit a written application if witnesses are required to appear in court and handwriting identification; if there is any objection to the jurisdiction, submit it during the submission of the defense. The statement in the trial must be consistent-"I don't know this loan" does not mean "I agree to repay", clearly stating that "the debt has nothing to do with me and is not used for family" and pointing to evidence; Do not sign a mediation plan with the words "agree to undertake" and "jointly repay" in the trial record, unless you have weighed that the debt is indeed common. During the mediation phase, if the creditor agrees to waive the spouse’s liability and pursue only the borrowing party, this agreement may be incorporated into the mediation agreement and confirmed by the court, thereby achieving a practical effect of “external isolation.”

7. Scenario Exercise (Example, Fictional)

Example 1: Gambling debts are not shared. The man incurred approximately RMB 400,000 in debt by gambling; the woman neither benefited from it nor was aware of it. A creditor sued both spouses, and the court determined that the gambling debt is not protected by law and does not constitute joint marital debt, so the wife is not liable for repayment.

Example 2: Falsified debt exposed. One party colluded with relatives and friends to fabricate the marital debt of about 600000 yuan, and forged IOUs and "running water", the divorce was found out when the division: the bank running water showed that the money was in and out on the same day, no real financial transactions, the court did not accept the debt as a common debt, and the counterfeiter dealt with in accordance with the law, the division to be less points.

Example 3: Excessive, out-of-the-ordinary large-amount loans are repaid by the borrowing party individually.The man borrowed approximately RMB 500,000 in his own name for personal investments, an amount that far exceeds the family’s ordinary living expenses, and the woman did not sign the loan agreement. The creditor failed to prove that the funds were used for the couple’s common living expenses or business operations, and the court ordered the husband to repay the debt personally.

8. Common misconceptions

Misconception 1: All debts incurred during marriage are considered joint debts.Correct answer: Whether a debt is considered joint depends on whether it meets any of the three criteria—joint signing, necessity for daily living, or use in the shared management of household affairs. Large debts for which the purpose cannot be verified are not deemed joint.

Myth 2: If my spouse is the debtor, I have to help repay the debt.Correct answer: You are only liable if the debt constitutes a joint obligation, or if you have made a declaration of guarantee, ratification, or similar expression of intent; in the absence of joint signing, personal benefit, or use for common purposes, you may legally raise such defenses.

Misconception 3: You simply have to accept a forged debt.Correct answer: Fabricating debt does not stand; you may also apply to the court to investigate the financial transaction records to expose it. The party engaging in fraud may receive a smaller share or no share during the division of assets, and in serious cases, may be held legally liable.

Misconception 4: Repaying one installment of the other party’s gambling debt or online loan has no impact.Correct answer: Acting on behalf of someone to repay a debt may be interpreted as an expression of joint liability, thereby solidifying joint debt; for unlawful debts and personal debts, one should explicitly refuse and clearly communicate this stance through official channels.

9. Frequently Asked Questions

Which debts do not need to be repaid jointly?

Debts that are extraordinary in nature and not used for joint large-scale debts, fabricated debts, gambling, or other illegal activities; as well as debts explicitly agreed to be personal and known to the creditor. The core criteria for determination still revolve around the three factors: joint signing, everyday needs, and use for shared living and business operations.

Do debts incurred from gambling have to be repaid?

The gambling debts incurred due to illegal crimes are not protected by law and are not joint debts, which should be borne by the borrower; the spouse does not need to repay, and should not repay on behalf of others to avoid being misunderstood as ratification.

The other party suddenly produces a promissory note claiming you owe them money—how can you determine whether it’s genuine?

Verify three matters: the date of the promissory note (whether it was backdated close to the divorce), whether there was actual fund transfer (obtain bank statements), and the relationship between the lender and the debtor (collusion among relatives and friends is common). If necessary, apply for a handwriting and time-of-formation examination; during litigation, you may also request the court to subpoena the loan contract and bank transaction records.

If the divorce agreement stipulates that the debts are to be borne by the other party, am I then exempt from liability?

No. An internal agreement is only effective between the spouses and cannot be enforced against external creditors; after you have been required to make payment, you may seek reimbursement from the other party by presenting the divorce agreement and proof of payment. If one wishes to externally isolate the debt, the only way is to inform the creditors and obtain their consent to change the debtor.

10. Practical Legal Insights

People who are intimidated by the term “joint debt” often assume they have to repay it without first clarifying its nature—this is the biggest misconception. In practice, more than half can be screened out by asking three sentences first: who signed the letter? Where did the money go? Did the family benefit? Large debts that have not been signed, ratified and paid are not entered into the family. Usually, the personal debts of the borrowing party are counted first, and the party who advocates that the two people share the responsibility should produce evidence of the use, and the proof cannot fall on the individual. When you receive a debt collection notice, it’s far more important to first determine its nature than to rush into making a statement.

Different types of debts that may not need to be assumed each have their own appropriate handling methods. For large loans in the name of one party that exceed daily needs, the key point is to prove clearly that "the money has not arrived home"; For forged or collusive debts, the authenticity of the debit note, whether the lender has actual lending ability and whether the money is actually delivered; For debts arising from illegal activities such as gambling and drug abuse, it is often restored in combination with the punishment records and transfer characteristics of the other party. According to the agreed debts, it depends on whether there is a written agreement and whether the creditor is aware of it. Each category should gather evidence according to its own line of proof; do not use a single set of arguments to cover all cases.

Be calm when you are urged on debt, and don't sign, repay or issue promises under pressure. These actions may be regarded as the ratification of debt. After receiving the prosecution materials in a timely manner, the non-common debt as the main line of defense, the burden of family expenses, the fact of separation between the two parties, the flow of funds into evidence. If part of the money is indeed used for the family, it can also be recognized to a limited extent, reducing the scope of responsibility to a reasonable range, rather than denying it altogether. It is a safe way to respond to the lawsuit to bear the burden and to distinguish between what should not be borne.

The four types of debts are clearly not common: super-daily and not used in common large debts, forged debts, gambling and other illegal activities debts, and debts that are agreed to be personal and the creditors are aware. To draw a clear "co-sign, daily, common use" boundary, there is no need to carry the pot for the other party, the debt is collected around the "not co-signed, not benefited, not used for common" three points of active defense, if necessary, apply to the court to obtain funds flow, do not passively recognize the account or on behalf of the repayment. For the creditor party, the right way to lock the claim into a common debt is to let the husband and wife sign together and fix the money for the family when lending. The problem of marital debt is most afraid of "dragging"-no reply, no response, no proof, is tantamount to handing over the right of defense to others.