As a real estate, the house is undoubtedly the top priority for the division of the joint property of the husband and wife in divorce disputes, and the mode of one party paying the down payment on the house and repaying the loan jointly by the husband and wife after marriage is a common choice for most people. Therefore, in a divorce dispute where the relationship between the husband and wife has indeed broken down, how should the divorce of the house with joint mortgage repayment be divided?
The direct legal norms regarding the divorce division of a joint mortgage house are:Article 78 of the Supreme People's Court's Interpretation on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of ChinaThis article stipulates that if one of the spouses signs a contract for the sale and purchase of immovable property before marriage, pays the down payment with personal property and takes out a loan from the bank, 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 shall belong 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 party registered in the immovable property shall compensate the other party for the joint repayment of the loan and the corresponding increase in the value of the property between the parties after marriage. in the articleThe first paragraph of Article 1087 of the Civil Code is specificIn the event of divorce, the joint property of the husband and wife shall be disposed of by agreement of both parties; If an agreement is not reached, the people's court is to make a judgment based on the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman, and the innocent party.
As can be seen from the above provisions, if the parties cannot reach an agreement on the division of the immovable property, the party registering the immovable property needs to compensate the other party for "the payment of the loan jointly repaid by the parties after marriage and the corresponding part of the appreciation of the property". In accordance with the principle of taking care of the rights and interests of the children, the woman and the innocent party, the judgment shall be made when the agreement is not reached.
With regard to the understanding of "the amount paid by the parties to repay the loan jointly after marriage and the corresponding part of the appreciation of the property", the Supreme People's Court pointed out in the Interpretation (1) of the Marriage and Family Part that the calculation of "the amount paid by the parties for joint repayment of the loan after marriage and the corresponding part of the appreciation of the property thereof" as provided for in this article is "the amount paid by the parties to repay the loan jointly after marriage and the corresponding part of the appreciation of the property".It can be expressed as follows: amount to be compensated = (amount of co-repayment50% of the present value of the property
The same applies to the determination of the present value of the property in the previous paragraphInterpretation of the Marriage and Family Section (1) Article 76that is, if the two parties cannot reach an agreement on the value and ownership of the house in the joint property of the husband and wife, the people's court shall handle it according to the following circumstances: (1) if both parties claim the ownership of the house and agree to obtain it through bidding, it shall be allowed; (2) If one party claims the ownership of the house, the appraisal agency shall evaluate the house according to the market, and the party that obtains the ownership of the house shall give the other party corresponding compensation; (3) If neither party claims ownership of the house, the house shall be auctioned or sold according to the application of the parties, and the proceeds shall be divided.
References:
A case of property disputes between Zhang and Zhao after their divorce
The court heard: In this case, Zhang Moumou agreed that the house belonged to Zhao Moumou, and only asked for the distribution of the house price, and Zhao Moumou also asked that the house belonged to him, and Zhang Moumou and Zhao Moumou both agreed that the house was worth 750,000 yuan, according to the down payment amount of 200,000 yuan, the mortgage loan amount of 220,000 yuan, the loan interest 1300 12 20-220000 92,000 yuan, the value of the property at the time of divorce 750,000 yuan, and the husband and wife jointly repaid the principal and interest of the loan 1300 146 189,800 yuan The proportion of the joint repayment of the loan by the husband and wife to the house price is 0371 Compensation 2 750000 0371 2 139125 yuan. Therefore, the house is owned by Zhao Moumou, and Zhao Moumou should pay Zhang Moumou 139125 yuan in compensation for the house.
To sum up, although judicial practice is complex and the handling of judicial disputes is not a simple application of formulas, the above-mentioned legal provisions provide an authoritative legal provision for the parties to divorce disputes on the division of jointly repaid houses, which can be referred to and used by the parties in both agreement divorce and litigation divorce.