Does the debt after marriage have to be a joint debt of the husband and wife?

1. The following aspects should be paid attention to in determining whether the debts of the husband and wife after marriage are joint debts of the husband and wife:

1) Determination of the time of occurrence of debts: After marriage, debts must occur during the existence of the relationship between husband and wife. The so-called period of existence of the marital relationship refers to the period from the date on which the husband and wife register their marriage to the date on which the marital relationship is terminated.

It includes not only the period during which the husband and wife live together after marriage, but also the period during which the husband and wife have not cohabited together after registration, the period during which the husband and wife have separated after marriage, and the period during which one party has filed a divorce lawsuit with the people's court and the mediation or judgment of the people's court granting the divorce has not yet taken effect.

2) Assumption of joint debts of husband and wife: Due to the specificity of the debtor being husband and wife, it has a unique nature and status in the civil legal relationship. The joint ownership of the joint property without a share and the equal right to dispose of it determine that the husband and wife should also bear the obligation to the joint debts equally regardless of the shares, so that both husband and wife have the obligation to pay off all the joint debts, and the creditor has the right to demand that either spouse pay off all the debts.

Therefore, the joint debts of the husband and wife are joint and several debts.

II. Exceptions:

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II).

Article 24 Where a creditor claims rights in respect of a debt incurred by one of the husband and wife in his or her own name during the existence of the marital relationship, it shall be handled as a joint debt of the husband and wife. However, one of the husband and wife can prove that the creditor and the debtor have expressly agreed that it is a personal debt, or can prove that it falls under the circumstances provided for in paragraph 3 of article 19 of the Marriage Law.

Legal Analysis: Debts after marriage are not necessarily joint debts of the husband and wife. For debts incurred by the husband and wife in the form of a joint signature of the husband and wife or the subsequent recognition of one of the husband and wife; or debts that are used for the daily life of the family, which are joint debts of the husband and wife; Debts such as debts in which one party commits illegal and criminal activities alone are personal debts.

Legal basis: Civil Code of the People's Republic of China

Article 1064:Debts borne by both husband and wife as jointly signed by both husband and wife or by one of the husband and wife as an expression of common intent, such as the debts incurred by both husband and wife in their own name for the daily needs of the family during the existence of the marital relationship, are joint debts of the husband and wife. Debts incurred by one of the spouses in his or her own name during the existence of the marital family in excess of the daily needs of the family are not joint debts of the husband and wife; However, the creditor can prove that the debt was used for the husband and wife's common life, joint production and business, or based on the common intention of the husband and wife.

Article 1089 When returning to China and divorcing, the joint debts of the husband and wife shall be repaid jointly. Where the joint property is insufficient to be paid off or the property is owned by each other, the two parties shall settle it by agreement; If the agreement is not reached, the people's court shall make a judgment.

Legal Analysis: Debts borrowed by one of the parties in marriage for the purpose of maintaining a common life and business are, in principle, joint debts of the husband and wife, and both parties are obliged to repay. If the loan borrowed during the marriage is for personal improper expenses, not for the maintenance of common life, and the other party is not aware of it, it is not a joint debt of the husband and wife.

A judgment can only be made based on a combination of considerations, such as whether the borrowing is for the purpose of maintaining a common life.

Legal basis: Article 1064 of the Civil Code of the People's Republic of China: Debts borne by the husband and wife jointly signed or confirmed by the husband and wife after the fact, as well as debts incurred by one of the husband and wife in their own name for the daily needs of the family during the existence of the marital relationship, are joint debts of the husband and wife.

Debts incurred by one of the spouses in his or her own name during the existence of the marital relationship in excess of the daily needs of the family are not joint debts of the husband and wife; However, the creditor can prove that the debt was used for the joint livelihood and consumption of the husband and wife, joint production and operation, or based on the joint intention of the husband and wife.

Legal Analysis: Under normal circumstances, one of the following circumstances can be recognized as the personal debt of one of the husband and wife:

1. The lender and the borrower have expressly agreed that it is a personal debt;

2. The husband and wife agree that the property obtained during the existence of the marital relationship shall belong to each other and the lender is aware of the agreement;

3. The lender knows or should know that the borrowed money is not used for family production and business or common life.

Legal basis: Article 1089 of the Civil Code of the People's Republic of China In the event of divorce, the husband and wife shall jointly repay the debts of the husband and wife. If the joint property is insufficient to be paid off or the property is owned by each other, the two parties shall settle it by agreement; If the agreement is not reached, the people's court shall make a judgment.