What does the new marriage law stipulate on real estate in the event of divorce, and how to divide t

According to Article 1062 of the Civil Code, the following property acquired by husband and wife during the existence of the marital relationship shall be jointly owned by the husband and wife: (1) wages and bonuses; (2) Income from production and operation; (3) the proceeds of intellectual property rights; (4) Property obtained by inheritance or donation, except as provided for in item 3 of Article 163 of this Law; (5) Other property that shall be jointly owned. Husbands and wives have equal rights to dispose of jointly owned property.

At the same time, Article 1063 stipulates that under any of the following circumstances, it shall be the property of one of the husband and wife: (1) the property of one party before marriage; (2) Medical expenses, living allowances for persons with disabilities, and other expenses received by one side as a result of bodily injury; (3) Property that is determined in the will or gift contract to belong to only one of the husband or wife; (4) Daily necessities for the exclusive use of one side; (5) Other property that shall belong to one party. The division of the joint property of the husband and wife refers to the division of the joint property of the husband and wife into their respective personal property in accordance with the law at the time of divorce.

Articles 1062 to 1065 of the current Civil Code specify that the joint property of husband and wife is the property acquired during the existence of the relationship between husband and wife, and stipulates the content of the joint property of husband and wife in an enumerative and general manner. The law also provides for the division of the joint property of the husband and wife: division by agreement and division by judgment. At the time of divorce, if the parties have an agreement on lawful marital property, the agreement shall be followed.

The property unique to one party shall be owned by the party. The joint property of husband and wife shall generally be divided equally, and may not be equal when necessary, and where there is a dispute, the people's court shall make a judgment in accordance with law. The division of joint property in divorce should not be carried out without compromising the utility, performance and economic value of the property.

When dividing the means of production in the common property, they should be distributed to the party who needs the means of production and can better play the role of the means of production; When dividing the means of subsistence in the common property, it is necessary to satisfy the professional or professional needs of the individual as much as possible, so as to give full play to the use value of the property. The indivisible property shall be owned by one party according to the principle of actual needs and beneficial utility, and the party who receives the property shall compensate the other party according to the actual value at the time of divorce in accordance with the principle of equity.

The new marriage law has become invalid, and according to the latest Civil Code, the way to divide the property in divorce is: if it is the joint property of the husband and wife, it will first be handled by agreement between the two parties; If an agreement is not reached, the people's court shall make a judgment in accordance with the principle of taking care of the rights and interests of the children, the woman, and the party who is not at fault. If one party pays the down payment before marriage and later jointly repays the loan, the people's court may make a judgment that the immovable property belongs to the registered party, and the party registered in the immovable property shall compensate the other party.

[Legal basis].

In the event of a divorce under Paragraph 1 of Article 1087 of the Civil Code, the joint property of the husband and wife shall be disposed of by agreement between the 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. If paragraph 2 of Article 78 of the Interpretation (1) of the Supreme People's Court on the Application of the Marriage and Family Section fails to reach an agreement 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 is 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.

The division of real estate after divorce:

(1) A house purchased by one party before marriage shall be the property of one party before marriage if all the payment for the house is paid.

The pre-marital property of one party is the property of one of the spouses. Property owned by one of the spouses shall not be converted into joint property of the husband and wife as a result of the continuation of the marital relationship. Since one of the spouses has paid the full amount of the house before the marriage and obtained the title deed, the house is undoubtedly a pre-marital property.

(2) A house purchased by one party with personal property after marriage is the property of one party.

(3) The husband and wife make a one-time contribution after marriage, and divorce after obtaining the house ownership certificate.

The property acquired by the husband and wife during the marriage shall be jointly owned by the husband and wife". As long as the husband and wife have not expressly agreed in advance that the property rights belong to one of the parties, regardless of which party is the purchaser or owner of the house on the purchase contract or house ownership certificate, regardless of whether the co-owner is stated in the house purchase contract or house ownership certificate, and regardless of the share of capital contribution of the husband and wife in the two houses, the property belongs to the husband and wife in joint ownership.

(4) Where a house is rented by one party before marriage and purchased with common property after marriage, and the house ownership certificate is registered in the name of one party, it shall be recognized as the joint property of the husband and wife.

[Legal basis].

Article 1087 of the Civil Code [Disposal of the joint property of the husband and wife in the event of divorce] In the event of divorce, the joint property of the husband and wife shall be disposed of by agreement between the two 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. The rights and interests enjoyed by husbands or wives in the contracting and management of family land shall be protected in accordance with law.

Divorce of husband and wife property division:

1) Divorce real estate division for the gift of a house within marriage.

If one party donates the house to the other party before or during the marriage, and the ownership is not transferred, the gift may be revoked. In other words, a gift that has not been transferred does not produce a valid gift.

2) The division of divorced real estate where one of the parents contributed to the purchase of the house.

After marriage, if one of the parents contributes funds to purchase immovable property for their children, and the property rights are registered in the name of the funder's children, it is regarded as a gift to only one of their children, and the immovable property is recognized as the personal property of one party.

In the case of the capital contribution of one of the parents in the division of property in a divorce, even if it was purchased by the parents after the marriage, if the property right is registered in the name of the parents and children of the investor, it belongs to the personal property of one party at the time of divorce and will not be divided at the time of divorce.

3) The division of divorced real estate where both parents contributed to the purchase of the house.

Where the immovable property purchased by both parents is registered in the name of one of the children, the immovable property shall be deemed to be jointly owned by both parties in accordance with the share of capital contribution, unless otherwise agreed by the parties. In other words, what the parents pay for is a gift from the parents to the children, and the other party has no right to divide it.

4) Divorce real estate division where one party buys a house before marriage and jointly repays the loan after marriage.

If one of the husband and wife signs a real estate sales agreement 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 real estate is registered in the name of the party who made the down payment, the divorce shall be handled by agreement between the two parties.

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 that registered it, and the loan that has not yet been repaid shall be the personal debt of the party registered with the immovable property. In the case of divorce, the parties shall compensate the other party for the joint repayment of the loan after marriage and the corresponding part of the increase in the value of the property in accordance with the principle stipulated in the first paragraph of Article 1087 of the Civil Code.

5) Divorce property division of a house bought by way of mortgage loan.

There are peculiarities in the ownership of a house bought with a mortgage loan. During the marriage, the parties used their joint income to repay the principal and interest of the bank loan, so the current value of the house can only be considered to be jointly owned by the husband and wife. With regard to the separation of property rights, in practice, the division of the joint property of the husband and wife should, in principle, be divided equally.

According to the actual needs of production and life, the property and other circumstances, it shall be handled by agreement between the two parties. According to the law, "if there is a dispute between the parties at the time of divorce over a house that has not yet obtained ownership or full ownership and cannot reach a consensus through negotiation, the people's court shall not make a judgment on the ownership of the house, but shall make a judgment on the use of the house by the parties according to the actual situation."

However, it should be treated differently in two cases: one is that before marriage, one of the spouses has paid for the house before marriage, then the house must be the personal property of one of the spouses before marriage. Second, if the mortgage loan for repaying the house after marriage is jointly paid by both parties, it shall belong to the joint property of both parties and be divided according to the amount of the mortgage.