01. When one party sued for divorce, it asked the court to order the court to take part of the house he had invested in after marriage to belong to him. Can it be supported by the court?
Answer: Article 29 of the Supreme People's Court's Interpretation on the Application of Marriage and Family Section of the Civil Code of the People's Republic of China (I) stipulates: "If the parties contribute capital to the purchase of houses by both parties before marriage, the capital contribution shall be deemed to be an individual gift to their children, except where the parents clearly state that the donation shall be given. If the parties have married, the parents contribute capital to the purchase of houses by both parties, the agreement shall be handled in accordance with the agreement; if there is no agreement or agreement If the decision is unclear, it shall be handled in accordance with the principles stipulated in Article 1062, Paragraph 1, Item 4 of the Civil Code of . "
. It is often happening in judicial practice that parents pay part of the price (often the down payment) for their children to purchase a house after marriage, sign an house purchase and sale contract in the name of their children and register the ownership of the house in the name of one or both children. In this case, according to the above provisions, if the two parties have no agreement or the agreement is unclear, the down payment of the capital contribution shall be recognized as a gift to both spouses in accordance with the principles stipulated in Article 1062, Paragraph 1, Item 4 of the Civil Code.
Correspondingly, real estate purchased after marriage in the name of one or both of the children and using the capital as the down payment shall be regarded as the joint property of the husband and wife, whether registered in one or both of the children or both parties.
Usually, during the marriage relationship between the parties, one or both parents contribute to the purchase of the house for both parties. In addition to the parents clearly stated that the investment was a gift to their children, according to the principle of the legal joint property system of husband and wife, it should be determined that the property of the couple is shared by .
When the people's court determines the ownership of the parties' post-marriage property, it must first apply the statutory principle of joint system of post-marriage income of husband and wife, that is, the property obtained by one or both of the husband or wife during the marriage relationship belongs to the common property of the husband and wife; secondly, it is determined whether it is owned by the husband or wife according to the exception.
This is also the general principle of handling property acquired by couples during the marriage.
02. After the two parties agreed to divorce, one party was unwilling to donate the house in his name to his children or others as agreed in the divorce agreement. The other party requested the court to order the party to handle the house transfer procedures as agreed in the agreement. Can the court receive support?
Answer: In practice, after an agreement divorce, one party repents and refuses to deliver the gifted house agreed in the divorce agreement.
In this regard, the donor's reason is often based on the provisions of Article 658, paragraph 1 of the Civil Code that "the donor may revoke the gift before the right to the donated property is transferred", and the donor may be revoked unconditionally. This view is wrong.
The reason is that the agreement on house gifts in the divorce agreement does not constitute a gift contract in the general sense. According to Article 657 of the Civil Code, "A contract is a contract in which the donor gives his property to the donor free of charge and the donor expresses acceptance of the gift", the premise of forming a gift contract is that the donor gives his property to the donor free of charge and does not require the donor to pay the price or assume any obligation for it.
In terms of gifts in divorce agreements, there are few cases in which the recipient confirms the acceptance of the gift in the divorce agreement, that is, the so-called "gift" in the divorce agreement does not reach an agreement between the donor and the recipient and does not constitute a gift contract. Since it does not constitute a gift contract, there is generally no possibility that the donor will revoke it in accordance with Article 658, paragraph 1 of the Civil Code.
From a legal perspective, the donor's gift in the divorce agreement should be considered as the obligation promised by the donor to fulfill in exchange for the other party's agreement to divorce.The special thing about this obligation is that the donor's obligation to pay the house is not performed to the counterparty of the divorce agreement, but to a third party outside the contract as agreed.
According to Article 1076 of the Civil Code, "If a husband and wife voluntarily divorce, they shall sign a written divorce agreement and personally go to the marriage registration authority to apply for divorce registration. The divorce agreement shall state the intention of the two parties to voluntarily divorce and the consensus on matters such as child support, property and debt handling."
Since the prerequisite for the marriage registration authority to register for divorce is that both parties reach an agreement on the issue of child support and property division, the party eager to divorce may make certain concessions on property division in the divorce agreement. In such divorce agreements as
, the main obligations of both parties are manifested in that the recipient "cooperates" with the donor to handle the divorce agreement, and the donor delivers the house to a third party. In the case where the counterparty has terminated the marriage with the donor as agreed, the donor shall also fulfill the obligation to pay the house as agreed. If the donor fails to perform the obligation, it constitutes a breach of contract and the counterparty of the divorce agreement has the right to request the court to order it to fulfill its obligation to deliver the house.
The provisions of the Supreme People's Court's "Interpretation on the Application of Marriage and Family Section of the "Civil Code of the People's Republic of China (I)" (Part 1)" "The provisions of "the parties in the divorce agreement signed in accordance with Article 1076 of the Civil Code on property and debt handling shall be legally binding on both men and women" can be understood as the embodiment of the above spirit.
The signing and implementation of the divorce agreement shall implement the principle of honesty and trustworthiness of . Those who do not intend to perform the agreement when signing the agreement, especially those who use substantial concessions to obtain the other party's quick agreement to agree to the divorce, but often regret it after the divorce and do not intend to perform the agreement seriously, cannot support it.
03. If the parties to the divorce lawsuit only live in a house with the nature of the common property of the couple, and they are unable to compensate the other party, can the court order both parties to occupy 1/2 of the property rights of the house after divorce?
Answer: This judgment is wrong. Because one thing and one right is the basic principle of Property Rights Law , there can only be one ownership in a specific thing, which is the proper meaning of one thing and one right.
judges that two ownership rights exist on one property without having separate registration of property rights, which obviously violates the law and will damage the certainty of ownership of property rights and the stability of transaction order. Since the nature of the house is the common property of the couple, if there is no division in the divorce lawsuit, the two parties are actually still in a shared state. Co-existence of husband and wife is a typical state of common existence.
Generally speaking, the division of the common property of a couple is half of each person. Therefore, if one person is sentenced to half, it is actually just a judgment to determine that the total is shared from the common property of a couple to the share of , which cannot solve the actual residence problems faced by the couple after divorce.
Because for co-owners by shares, there is still a question of who actually controls and uses the house. If the parties can negotiate to resolve this issue by themselves, there is no need to make a judgment by the people's court; the fact of divorce means that the basis for common ownership has been lost. If the problem cannot be resolved in consultation, the people's court will forcibly decide to share ownership by shares under the condition that the parties obviously lose the common ownership basis, which may cause new contradictions.
Therefore, in the above circumstances, judging the property rights of the house jointly owned by the couple after the divorce are shared by the couple's house after the divorce is not a good way to divide the joint property of the couple in a divorce case, and it is generally not suitable to use it.
04. Both my wife and I remarried, and both of them had their own housing before remarrying. I bought a two-bedroom building with a mortgage before marriage for both parties to live together after marriage, and the loan has not been paid off yet.In the divorce lawsuit, I claimed that this house belongs to me, and the other party also agreed, but asked her to share half of the benefits brought about by the rise in housing prices over the past three years. I don’t want to sell the house now, and I have not actually gained any profits even if the house prices rise. Will the court support her request?
Answer: This requirement is reasonable. Before marriage, one party signs an home purchase contract in his personal name, and pays the down payment, buys the house with a mortgage loan and registers the house in his personal name. However, after marriage, both spouses jointly repay the loan. Some of the above-mentioned houses belong to the personal property of the registered party (the down payment part and the loan part that has not been paid off), and some also have the attributes of the common property of the couple (the joint repayment part of the couple during the marriage relationship).
The Interpretation on the Application of Marriage and Family Section of the Supreme People's Court (I) Article 78, Paragraph 1 of Article 78, Paragraph 1 of the First Paragraph stipulates: "One spouse signs a real estate sales contract before marriage, pays the down payment with personal property and borrows a loan from a bank, and after marriage, the real estate is registered in the name of the down payment payer, the real estate shall be handled by the agreement of both parties during divorce."
Paragraph 2 stipulates: "Agree cannot be reached in accordance with the provisions of the preceding paragraph. , the people's court may rule that the real estate belongs to the registered party, and the loan that has not yet been returned is the personal debt of the registered party of the real estate.
The money paid by both parties after marriage and their corresponding property appreciation part shall be compensated by the party registered in the divorce according to the principles stipulated in Article 1087, paragraph 1 of the Civil Code. "Since the other party has agreed that the house belongs to you, the dispute between the two parties is only about how to pay compensation to the other party for the property rights and interests formed by repaying the bank loan during the marriage.
If the dispute cannot be resolved through negotiation, the people's court will inevitably make compensation to the other party for the amount paid by both parties to jointly repay the loan and the value-added part of the corresponding property during the marriage.
Although houses are not sold now, the value-added of the house is objective. Since the ownership of the house belongs to you after the divorce, the value-added must be enjoyed by you. This value-added is inseparable from the contribution of one spouse to participate in the joint repayment of the loan, and the other party also loses the opportunity to buy his own house.
Therefore, it is unfair to the other party to enjoy the benefits brought about by the appreciation of the house. Therefore, it is recommended that you take the initiative to pay compensation to the other party for the amounts paid by both parties to repay the loan during the marriage and the value-added part of the corresponding property, or negotiate with the other party to resolve the dispute.
05. During the marriage, both parties use the joint property of the couple to purchase a house, and the property rights are registered in the name of the minor children. What should be handled during divorce?
Answer: There are two different views in trial practice: one view believes that according to Article 217 of the Property Rights Section of the Civil Code, Real estate ownership certificate is a proof that the right holder enjoys the real property rights. If the couple registers the purchased house in the name of the minor's children, it means that the purchased house is donated to the minor. The divorce should be treated as the minor's property, and both the couple have no right to divide it;
Another view holds that the house cannot be recognized as the minor's property only according to the property registration, and the true intention of both the couple should also be reviewed. We tend toward the second view that the two parties use the couple's joint property to purchase a house after marriage, and the children are underage. If the property rights are registered in the name of the child, the couple cannot simply identify the house as the property of the minor children in full according to the registration situation when they divorce.
Because real property rights registration produces the effect of presuming the registered right holder as the real right holder, which is divided into external and internal.
external effect means that according to the principle of public disclosure of property rights, after real estate transactions involving real estate transactions with registered rights holders based on trust in the registration of real estate, the real estate transactions between the right holder and the interested party shall be protected by law;
internal effect means that the real right holder should be determined based on the true intention of the parties.
In actual life, after the husband and wife jointly invest in the purchase of a house, the property rights of the house may be registered in the name of the minor child based on various factors, but this does not mean that the husband and wife are the real meaning of the minor child to become the right holder of the property rights of the house. Therefore, the real property owner of the house may not be the minor child.
People's Court should pay attention to reviewing the true intention of both spouses when purchasing a house. If the true intention is to give the purchased house to the minor child, the house should be recognized as the property of the minor child during divorce, and the party who directly raises the minor child will be temporarily managed by the party who directly raises the minor child; if the true intention is not to give the house to the minor child, it is more appropriate to treat the house as the joint property of the couple during divorce.
06. Wen and Sha were husband and wife. They registered their marriage in City A in 2005. Their household registration locations are both in City A. After marriage, the two have been living in the home of Wen's parents in City A. From 2006 to 2008, Wen and Sha purchased three real estates in their provincial capital City B in the name of their husband and wife. In January 2009, Sha filed a divorce in the B City Court and involved the division of property of three properties located in B City. Does the court where the three real estates are located have the right to jurisdiction?
Answer: Article 22, paragraph 1 of the " Civil Procedure Law" of my country stipulates: "H civil lawsuits filed against citizens shall be subject to the jurisdiction of the people's court of the defendant's place of residence; if the defendant's place of residence is inconsistent with the place of residence, the people's court of the place of residence shall be subject to the jurisdiction of the people's court of the place of residence." Article 3, paragraph 1 of the Supreme People's Court's "Interpretation on the Application of the Civil Procedure Law of the People's Republic of China" stipulates: "The place of residence of a citizen refers to the place of residence of a citizen, and the place of residence of a legal person or other organization refers to the location of the main office of the legal person or other organization."
Therefore, when the defendant Wen's household registration is in City A, City A should be Wen's residence. The jurisdiction of this case shall be subject to the general principle of civil territorial jurisdiction of "plaintiff for defendant", in the case where the defendant's domicile, that is, his place of residence, the people's court of the defendant's domicile shall be under the jurisdiction of the defendant's place of residence. Therefore, this case shall be exercised by the Municipal Court of A.
Article 34, Paragraph 1 of the Civil Procedure Law stipulates: "Litigation brought about by real estate disputes shall be subject to the jurisdiction of the people's court where the real estate is located." Among them, "Litigation brought about by real estate disputes" should be understood as a dispute arising from real estate as the subject of the dispute. For cases where one spouse sues a divorce involving real estate division, the jurisdiction of the case should be determined in accordance with the principles determined in Article 22, paragraph 1 of the Civil Procedure Law.
In this case, although the divorce case involves the division of real estate, since this case involves the division of real estate based on divorce, jurisdiction should be determined based on the principle of "plaintiff for defendant", that is, jurisdiction shall be governed by the court where defendant Wen Mou's domicile.
Of course, if the husband and wife have divorced according to the court's judgment or divorce agreement, and only the real estate division in question is divided into the litigation content, the exclusive jurisdiction principle of the court where the real estate is located shall be applied.
To sum up, even if this divorce case involves the division of real estate, it should be under the jurisdiction of the Municipal Court of Wen’s residence.
Law link
1. "Civil Code of the People's Republic of China "
Article 217 The real estate ownership certificate is a proof that the right holder enjoys the real property rights. Matters recorded in the real estate ownership certificate shall be consistent with real estate registration book ; if the records are inconsistent, unless there is evidence to prove that there is indeed error in the real estate registration book, the real estate registration book shall prevail.
Article 657 The gift contract is when the donor gives his property to the donor free of charge, and the donor expresses his acceptance of the gift
Article 658 The donor may revoke the gift before the right to the donor's property is transferred.
Notarized gift contracts or gift contracts with public welfare and moral obligations such as disaster relief, poverty alleviation, and assistance to the disabled that cannot be revoked in accordance with the law shall not apply to the provisions of the preceding paragraph.
1062 The following property obtained by a husband and wife during the marriage is the common property of the husband and wife and belongs to the couple:
(I) Wages, bonuses, and labor remuneration;
(II) Income from production, operation and investment;
(III) Income from intellectual property rights;
(IV) Property inherited or donated, except as stipulated in Article 1063 of this Law;
(V) Other property that should be jointly owned.
Couples have equal rights to deal with their joint property.
Article 1076 If both spouses voluntarily divorce, they shall sign a written divorce agreement and apply for divorce registration in person at the marriage registration authority.
Divorcement agreement shall state the intention of both parties to voluntarily divorce and the consensus on matters such as child support, property and debt handling.
Article 1087 When divorce is made, the couple's joint property shall be handled by the agreement between the two parties; if the agreement is not reached, the people's court shall 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 party without fault.
The rights and interests enjoyed by husbands or wives in family land contracting and management shall be protected in accordance with the law.
2. "Interpretation of the Supreme People's Court on the Application of Marriage and Family Section of the Civil Code of the People's Republic of China (I)"
Article 29 If the parties contribute capital to the purchase of the house between the parties before marriage, the capital contribution shall be deemed to be an individual gift to their children, except where the parents clearly state that the gift is given to both parties.
After the parties get married, if their parents contribute to the purchase of the house between the two parties, the handling shall be carried out in accordance with the agreement; if there is no agreement or the agreement is unclear, the handling shall be carried out in accordance with the principles stipulated in Article 1062, Paragraph 1, Item 4 of the Civil Code. Article 69 of
Article 69 of the parties to the property and debt handling agreement on the condition of divorce or mediation of divorce in the People's Court, if both parties fail to divorce and one party repents in the divorce lawsuit, the people's court shall determine that the property and debt handling agreement have not taken effect and make a judgment in accordance with the provisions of Articles 1087 and 1089 of the Civil Code based on actual conditions.
The terms on property and debt handling in the divorce agreement signed in accordance with Article 1076 of the Civil Code are legally binding on both men and women. If the parties file a lawsuit after registering for divorce due to disputes in performance of the above agreement, the people's court shall accept the lawsuit.
Article 78 If one spouse signs a real estate sale contract before marriage, pays the down payment with personal property and takes a loan at the bank, and repays the loan with the joint property of the spouse after marriage, and registers the real estate in the name of the down payment payer, the real estate shall be handled by the agreement between the two parties during divorce.
If an agreement cannot be reached in accordance with the provisions of the preceding paragraph, the people's court may rule that the real estate belongs to the registered party and the loan that has not yet been returned is the personal debt of the registered party of the real estate. The money paid by both parties to jointly repay the loan after marriage and their corresponding property appreciation part shall be compensated by one party to the real estate registration in accordance with the principles stipulated in Article 1087, paragraph 1 of the Civil Code.
3. " Civil Procedure Law of the People's Republic of China "
Article 22 Civil lawsuits against citizens shall be subject to the jurisdiction of the People's Court of the defendant's place of residence; if the defendant's place of residence is inconsistent with the place of residence of habit, the people's court of the place of residence of the person in the place of residence shall be subject to the jurisdiction of the people's court of the place of residence of the defendant; if the place of residence of the defendant is inconsistent with the place of residence of the person in the place of residence of the person in the place of residence of the person in the place of residence shall be subject to the jurisdiction of the people's court of the place of residence of the person in the place of residence.
civil lawsuits filed against legal persons or other organizations shall be subject to the jurisdiction of the People's Court of the defendant's place of residence.
If the defendants in the same lawsuit have the residence and frequent residence in more than two people's courts, each of the people's courts has jurisdiction.
Article 34 The following cases shall be subject to the exclusive jurisdiction of the people's court stipulated in this article:
(I) The lawsuit filed due to real estate disputes shall be subject to the people's court where the real estate is located;
(II) The lawsuit filed due to disputes in port operations shall be subject to the people's court where the port is located;
(III) The lawsuit filed due to inheritance disputes shall be subject to the people's court where the deceased died or the main inheritance where the deceased died.
4. "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China"
Article 3 The place of residence of a citizen refers to the place where the citizen's household registration is located, and the place of residence of a legal person or other organization refers to the place where the legal person or other organization's main office is located. If the location of the main office of a legal person or other organization cannot be determined, the place of registration or registration of the legal person or other organization is the address.
Source | Excerpt from "Civil Trial Practice Questions and Answers" edited by the Civil Court of the Supreme People's Court
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