Recently, there have been many consultations on marriage legal issues, and the author found that most parties do not understand what kind of debt is a joint debt of husband and wife.
According to Article 1064 of the Civil Code, joint debts of husband and wife mainly include the following three types: 1. "Joint debt and joint signature", that is, debts borne by both husband and wife with common intentions, such as debts jointly signed and confirmed by both husband and wife, or debts that are later recognized by the other party orally or in writing even though only one of the husband and wife signs; 2. Debts incurred by one of the husband and wife in his or her own name for the daily needs of the family during the existence of the marital relationship, such as clothing, food, housing, transportation, consumption, child support and education, purchase of joint property such as garages, etc.; 3. During the existence of the marital relationship, one of the husband and wife bears debts in his or her own name that exceed the daily needs of the family (generally refers to the large amount of debts that exceed the limit of the daily consumption of the general family), but the creditor can prove that the debts are used for the husband and wife's common life, joint production and operation, or based on the common intention of both parties.
With regard to the first type of debt mentioned above, in general, if there is no untrue signature, the husband and wife are jointly liable for the debt. In one case handled by the author, the husband borrowed money from the bank in the form of a mortgage on a common house, and according to the bank's regulations, the loan contract had to be signed by both husband and wife. During the trial, the woman raised objections to the authenticity of the signature and applied for handwriting appraisal, and the appraisal conclusion finally determined that the signature was not the woman's handwriting, based on which the court rejected the bank's claim that the woman should bear the repayment responsibility.
With regard to the second type of debt mentioned above, the creditor only needs to prove that the creditor-debtor relationship exists and that the debt meets the daily needs of the local family. However, in practice, especially in private lending disputes, the parties are often unable to provide evidence due to lack of corresponding legal knowledge, and the author suggests that when the debtor issues a written certificate of creditor's rights and debts, it is best to require the debtor to indicate the purpose of the money, such as buying a car, buying a house, or using it for daily family life, so that in principle, the court can presume that it is a joint debt of the husband and wife.
With regard to the above-mentioned type 3 of debt, the burden of proof borne by the creditor is heavier, and if it cannot prove that the debt is specifically used for the husband and wife to live together, jointly produce and operate, or is based on a common expression of intent, it generally cannot be recognized as a joint debt of the husband and wife. In practice, it is possible to apply to the court to obtain the debtor's bank statements within a certain period of time, and clarify the purpose of the funds through the counterparty to the transaction. For example, the transfer record of payment to the 4S store for the purchase of a car, the direct transfer to the other spouse, the consumption record for catering and travel, etc. However, in practice, it is more difficult, on the one hand, due to the application for court investigation, it is necessary to clarify the card number and the bank where the account is opened, but there are many bank cards in the name of the general debtor, it is not easy to identify commonly used bank cards, and the bank account information cannot be accurately provided, resulting in the inability to collect evidence. On the other hand, some debtors will pay the money to the third party's account and then operate the repatriation of funds, and the third party is often an outsider, and the court will usually not approve the transfer of the flow of the third party's account.
To sum up, the debts incurred based on the joint intention of the husband and wife, the debts incurred for the needs of daily family life, and the joint debts that can be proved by the creditor are joint debts of the husband and wife, and the debts incurred in excess of the daily needs of the family, if one of the husband and wife forms a large amount of loans, gifts and other creditor-debtor relationships with a third party, the debts incurred in this case are not joint debts of the husband and wife in principle.