Shaanxi Haogong Law Firm Rule of Law ** Research Institute Article Liu Rui.
If the loan is taken out before the marriage to purchase the property and the loan is continued to be repaid after the marriage, whether the spouse can divide it mainly depends on the spouse's contribution to the pre-marital property.
According to Article 78 of the Civil Code of the People's Republic of China, if one of the husband and wife signs a contract for the sale and purchase of immovable property before marriage, pays the down payment with personal property and takes out a bank loan, and repays the loan with the joint property of the husband and wife after marriage, and the immovable property is registered in the name of the party paying the down payment, the immovable property shall be disposed of by agreement between the two parties at the time of divorce. If no agreement can be reached in accordance with the provisions of the preceding paragraph, the people's court may make a judgment that the immovable property belongs to the party registered, and the loan that has not yet been repaid shall be the personal debt of the party registered with the immovable property. In the event of divorce, the parties shall compensate the other party for the joint repayment of the loan and the corresponding increase in the value of the property, in accordance with the principles stipulated in the first paragraph of Article 1087 of the Civil Code.
Article 78 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China stipulates that if one party takes out a loan to purchase real estate before marriage and registers it in the name of the party, and repays the loan with the joint property of the husband and wife after marriage, one of the spouses may receive the payment for the joint repayment of the loan and the compensation for the corresponding increase in the value of the property.
According to the above-mentioned legal provisions, the part of the mortgage repayment during the existence of the husband and wife, as well as the value-added part of the commercial house, belong to the joint property of the husband and wife, and can be divided up. The registration of the names of the parents on the property does not affect the above-mentioned rights and interests that the husband and wife should have.
There is still controversy in judicial practice about how much compensation one party can receive when one party takes out a loan to buy a house before marriage, and there is no unified calculation formula. The judge will use his discretion to make a fair judgment on the amount of compensation, taking into account the principles of the proportion of co-ownership, the principal and interest of the husband and wife to repay the loan, the cost of the purchase, the contribution of each party to the house, the appreciation of the house and the wrongdoing in the marriage, and the care of the children and the rights and interests of the woman. The two common calculations are as follows:
1. Compensation amount = part of the joint repayment of the loan by the husband and wife and the appreciation rate of the real estate 2
The first step is to calculate the real estate appreciation rate, the real estate appreciation rate = the real estate current ** real estate cost (real estate at the time of purchase** + the interest part of the co-repayment + other expenses such as deed tax, stamp duty, business tax, appraisal fee, etc.).
The second step is to calculate the compensation received by the non-registered party, i.e. the amount of compensation = the part of the joint repayment of the loan by the husband and wife The appreciation rate of the real estate 2. It is also very important to determine the timing of the calculation when calculating the specific amount of compensation, where the value added refers to the value added after the marriage, excluding the value added before the marriage, which is the personal property of one party. At the same time, consideration should be given to the amendment in two cases: first, the loan has not been repaid at the time of divorce, and only the interest that has been repaid jointly by the husband and wife can be included in the cost of the real estate;Second, if one party gets married after a period of time after purchasing immovable property, when calculating the appreciation rate of immovable property, the immovable property at the time of marriage shall be used as the basis for calculation, and the immovable property at the time of purchase shall not be based on the real estate ** at the time of purchase.
2. Compensation = joint payment by husband and wife (including principal and interest) (purchase price of the house, all interest payable) 50% of the appraised present value of the house (or the present value of the house approved by the husband and wife).
It should be noted that the value of the house is first determined, and if the husband and wife can agree on the value of the house, the amount of compensation is calculated based on the amount agreed by both parties. If the parties cannot reach an agreement, it is necessary to appoint a qualified asset appraisal agency to conduct an appraisal to determine the value of the property in question.
During the existence of the marital relationship, the husband and wife take out a mortgage loan from the bank to buy a house for their common living needs, and the agreement agreed at the time of divorce for one party to bear the loan is only valid for the husband and wife, and cannot be used against the bank creditors, and the bank has the right to claim that both parties bear unlimited joint and several liability for the joint debts of the husband and wife.
During the existence of the marital relationship, the husband and wife may make an agreement on creditor's rights and debts and dispose of property, and as long as such agreement does not violate the mandatory provisions of the law, it is legally binding on both husband and wife, and both parties must abide by it. However, the agreement between husband and wife to assume debts is only valid between husband and wife and cannot be used against bona fide third parties or creditors. Therefore, in this case, the agreement between the two defendants to assume the loan after the divorce is valid for both parties, but it cannot be used against the bona fide creditor lending bank.
In addition, in trial practice, sometimes there will be a situation of housing prices**, such as when buying a property at a relatively high point, after the marriage and the husband and wife jointly repay the loan for a number of years, the present value of the property at the time of divorce is higher than when it was purchased. In the face of the situation that the property has not increased in value or even has a negative growth, we believe that the party with the property right registration should at least compensate the other party for the joint repayment of the principal and interest of the loan. There are two reasons: one party has signed a real estate sales contract before marriage, and it is the buyer's own choice to buy the property with what geographical location, what floor, and what direction to face, and the other party only participates in the repayment of the loan after marriage, and the buyer should naturally bear the risk of housing priceThe second is that the property is awarded to the party who registers the property right at the time of divorce, and if it is only used for residence rather than investment, the house price will not cause substantial losses to it for the time being.