If one spouse is in debt, should the spouses jointly repay it?
Author | Wang Hongting Lawyer
After dealing with many creditor's rights and debt disputes, the author found that for the debtor's non-repayment behavior, the creditor believes that the debtor's spouse should be added to bear the joint repayment responsibility. That is, the debt is one of the husband and wife, but the repayment must be paid by the husband and wife together.
How is the law stipulated? Should both spouses be jointly responsible for repayment of external debts of one spouse?
Spouse is not responsible
Case introduction: Hong's father and Guo are classmates, and Guo and Chen are husband and wife. Guo borrowed money from Hong on the grounds that his son needed capital turnover to do business. Hong transferred 500,000 yuan to Guo on November 2, 2016. Guo issued an "IOU" to Hong on the same day, stating: "I have borrowed cash from Hong in RMB capitalization: Wu Shiwan Yuanzheng" 500000 yuan ", and this is established as evidence."
Guo signed at the borrower's office.
Guo borrowed money from Hong again on November 7, 2018. Hong transferred 500,000 yuan to Guo on November 6, 2018, and 200,000 yuan to Guo on November 7, 2018. Guo issued an IOU to Hong on November 7, 2018, stating: "I have borrowed cash from Hong today. RMB uppercase: 700,000 yuan, lowercase RMB" 700,0
00yuan ", and write this as evidence."
Guo signed at the borrower's office.
The plaintiff sued Guo and Chen to jointly repay the principal of the loan.
The court held that: on the issue of whether Chen bears the responsibility for repayment, the IOU issued by Guo to Hong did not indicate the purpose of the loan, nor did Chen sign it, nor did Hong submit evidence to prove that the loan was used for Guo and Chen's family to live together, produce and operate together, or express their common will, and Chen did not know about the loan involved in the case. Therefore, the plaintiff's claim is not supported.
Spouses should assume joint repayment responsibility
Case introduction: On March 24, 2020, Rural Commercial Bank (lender) signed a loan contract with Liang (borrower), stipulating that the lender would grant the borrower 150,000 yuan in loan principal. On the same day, Rural Commercial Bank (lender) signed a guarantee contract with the plaintiff (guarantor) and Meng (guarantor), stipulating that the plaintiff and Meng would provide joint and several guarantee liabilities for Liang's loan.
Afterwards, the plaintiff (guarantor) repaid the principal of 39,397.4 yuan and the interest of 1767.17 yuan to the Rural Commercial Bank on behalf of Liang.
The plaintiff sued Liang and Meng to pay compensation to him.
The court held that: Regarding the liability of Meng. Because Liang and Meng were husband and wife, when Liang borrowed money from Rural Commercial Bank, Meng signed the guarantee contract as a joint and several liability guarantor, proving that Meng, as Liang's wife, knew the amount and purpose of the loan clearly, and the debt was a debt formed by mutual expression of will. The compensation involved in the case should be identified as the joint debt of Liang and Meng, which should be repaid by Liang and Meng together.
Summary and recommendations
In both cases, the plaintiff asked the spouse to bear the joint repayment responsibility, but the judgment of the two cases was completely different. Article 1064 of the Civil Code of the People's Republic of China clearly stipulates whether the external debt of one spouse is a joint debt of the husband and wife.
Circumstances that can be identified as joint debt between husband and wife:
1. The debt document is jointly signed and confirmed by both husband and wife.
2. One of the spouses later acknowledges the debt;
3. Although one spouse is in personal debt, the debt is used for the daily needs of the family.
4. The creditor can prove that the debt was used for the husband and wife to live together, jointly produce and operate, or expressed based on the common will of both husband and wife.
To sum up, debts that exceed the daily needs of the family in the name of individuals are not joint debts of husband and wife. If the evidence of the creditor is not sufficient to determine that the debt belongs to the joint debt of husband and wife, it is impossible to make the debtor's spouse bear the joint repayment responsibility for this. Therefore, the author recommends that when the creditor lends money to the outside world or signs a sales contract, try to get the mutual confirmation of the other spouse, whether it is signed on the IOU or agreement, or confirmed by other methods, so as to ensure that the subsequent debtor does not perform the repayment obligation, the husband and wife can be required to bear the debt together.
The law requires
Civil Code of the People's Republic of China
Article 1064: Debts borne by both husband and wife jointly signed or ratified by one of the husband and wife after the fact, as well as debts borne by one of the husband and wife in their own name for the daily needs of the family during the duration of the marriage relationship, belong to the joint debt of the husband and wife. Debts borne by one of the husband and wife in their own name in excess of the daily needs of the family during the duration of the marriage relationship do not belong to the joint debt of the husband and wife; however, unless the creditor can prove that the debt is used for the joint life of the husband and wife, joint production and operation, or based on the common will of the husband and wife.
Lawyer Profile
Wang Hongting Lawyer
Attorney of
Secretary General of Marriage and Family Department, Zhiheng Marriage, Family Affairs and Wealth Inheritance Law Center
Member of Zhiheng Company Legal Affairs Center
Contributor of Shenzhen Lawyers Association
Areas of expertise:
Marriage wealth, corporate governance
Civil and commercial affairs, labor disputes,
Infringement, bankruptcy liquidation