How to distinguish between joint and personal debts

1 Time of Debt Formation In the division of property in a divorce, if one party asks the other party to bear the relevant debts, the first thing to consider is the time when the debts are formed. Generally speaking, in the absence of a special agreement, the debts formed before the marriage are the personal debts of one party and are borne by his or her person; Debts incurred during the marriage are joint debts of the husband and wife and are jointly borne by both parties. It should be noted here that in some cases, although the debt was formed before the marriage, if the loan is used for life after marriage, or if the property such as the house purchased by one party before the marriage has been converted into the joint property of the husband and wife, then the debt formed by the loan for the purchase of property should be regarded as the joint debt of the husband and wife.

2 Causes of Debt The formation of debt must have its own unique causes. In divorce disputes, the examination of the causes of debts is mainly to see whether the debts are incurred due to the needs of the family's common life. In real life, many debts are not necessarily directly related to family life, for example, because one party needs to borrow money for investment.

In this case, if the investment is actually an investment by the family, then the debt should be recognized as a joint debt of the husband and wife. 3 Validity of IOUs The review of the validity of IOUs is also a very important and direct content. The validity of an IOU is, first of all, whether the IOU is the borrower's own book; secondly, whether the content of the IOU is complete and whether the amount of the loan is clear; Third, the kinship between the creditor and the borrower, which involves the authenticity of the loan itself and the confirmation of the fact of the loan.

In practice, it is common for the borrower to issue an IOU to his parents, and based on this special kinship, such a loan will not be recognized without the signature of the other spouse. 4 Direction of Use of Loans Sometimes, although the fact of borrowing money exists, but the spouse does not use the loan for the needs of the family or the family's investment, but spends it on his own, or funds relatives and friends who have no obligation to support him or her without authorization, or raises funds to engage in business activities without the consent of the other party, and his or her income is not used for living together, it should be recognized as a personal debt. 5 Whether the debt has been paid Although there is a fact of borrowing, and the borrowing is also due to the needs of the family to live together, both husband and wife are aware of the fact of borrowing.

However, if the loan has already been repaid or should be repaid, one party cannot confirm the joint property by virtue of the IOU that has not been destroyed. Of course, the spouse's responsibility is evidence that the debt has been paid or should be paid.

1. The debts incurred before marriage are personal debts, but the creditor can prove that the debts are used for the common life of the family after marriage.

2. During the existence of the marital relationship, it shall be treated as a joint debt of the husband and wife, but if 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 the husband and wife have agreed that the property obtained during the existence of the marital relationship belongs to each other, and the third party knows about the agreement, it is a personal debt.

The Marriage Act provides:

Article 19 : Where a husband and wife agree that the property acquired during the existence of the marital relationship shall belong to each other, and the debts incurred by one of the husband or wife are known to a third party and the agreement is made known to the third party, the debts shall be paid off with the property owned by the husband or the wife.

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

Article 23 Where a creditor claims rights against the debtor's spouse in respect of the personal debts incurred by one party before marriage, the people's court shall not support it. However, the creditor can prove that the debt was incurred for the common life of the family after the marriage.

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.

A very important basis for distinguishing between joint debts and personal debts is to see whether the debts exist during the existence of the marital relationship. However, in judicial practice, there are also cases in which debts incurred during the existence of the marital relationship are recognized as personal debts, mainly because in judging the nature of the debts, in addition to the criterion of the duration of the marital relationship, two criteria are usually used to judge: first, whether the husband and wife have an agreement to jointly raise debts.

If the husband and wife agree to borrow together, the debt shall be recognized as a joint debt, regardless of whether the benefits of the debt are shared by the husband and wife; The second is whether the husband and wife share the benefits of the debt.

1. Debts incurred by both husband and wife jointly signed or later recognized by one of the husband and wife shall be recognized as joint debts of husband and wife. 2. Debts incurred by one of the spouses in his or her own name for the daily needs of the family during the marriage are joint debts. 3. Debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship in excess of the daily needs of the family, and the creditor can prove that the debts are used for the common life of the husband and wife, joint production and operation, or based on the common intention of the husband and wife, it is a joint debt.

4. Debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship that exceed the daily needs of the family are generally personal debts. Article 1 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife Article 1 provides that debts incurred by the husband and wife shall be deemed to be joint debts of the husband and wife, such as the joint signature of both husband and wife or the subsequent recognition of the debts of one of the husband and wife. Article 2: Where a creditor claims rights over 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 on the grounds that they are joint debts of the husband and wife, the people's court shall support them.

Article 3: Where a creditor claims rights for debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship that exceed the daily needs of the family on the grounds that they are joint debts of the husband and wife, the people's court shall not support them, except where the creditor can prove that the debts were used for the husband and wife's common life, joint production and operation, or on the basis of the joint intention of the husband and wife.

The joint debts of the husband and wife and the personal debts can be divided according to the following provisions:

Article 1064 of the Civil Code stipulates that debts incurred by both husband and wife in the joint signature of the husband and wife or by one of the husband and wife in the subsequent recognition of the common intention, as well as 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, 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, unless the creditor can prove that the debt is used for the husband and wife's common life, joint production and operation, or based on the common intention of the husband and wife.

1. How to stipulate personal debts and joint debts of husband and wife.

The law establishes the principle that the debts incurred by one of the spouses before marriage are personal debts, and the debts incurred by one of the spouses in his or her own name during the marriage are joint debts, with exceptions.

Let's take a look at the exceptions:

Debts owed by one of the spouses before the marriage are exceptions to personal debts.

If there is a necessary causal connection between the debts owed by one party before marriage and the common life of the husband and wife after marriage, and the funds and property in the debts owed before marriage have been converted into joint property of the husband and wife after marriage or have become the common material living conditions of the husband and wife after marriage, the personal debts owed by one party before marriage shall be converted into joint debts of the husband and wife and shall be repaid jointly by the husband and wife.

Of course, the burden of proof lies with the creditor.

Let's take a look at an example in action:

If one party borrows money before marriage for the renovation of a house, the house will be inhabited by both husband and wife after marriage. One party borrows money to buy a house before marriage, and the property becomes the joint property of both parties after marriage, etc. Because the loan of one of the spouses before the marriage is converted into the common material living conditions or joint property of both parties after the marriage, the debt can be recognized as a joint debt of the husband and wife.

2. What is a joint debt between husband and wife.

According to the Civil Code of the People's Republic of China

Article 1064:[Joint Debts of Husband and Wife]Debts incurred by both husband and wife as jointly signed by both husband and wife or by one of the husband and wife as a result of a joint expression of intent, as well as debts incurred by one of the husband and wife in their own name during the existence of the marital relationship for the daily needs of the family, 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 husband and wife's common life, joint production and business, or based on the common intention of the husband and wife.

Sometimes, although during the existence of the marital relationship, one of the parties borrows money or uses joint property to support his relatives and friends, but does not have his or her own consent at all, not only can not be counted as joint debts, but also infringes on the property rights of the parties to a certain extent, but the definition of debt and creditor's rights is to provide their own evidence.

According to the law, joint debts are debts incurred to meet the needs of the husband and wife to live together. Joint debts are mainly debts arising from the needs of the husband and wife to live together as a family, as well as the management, use, income and disposal of joint property. The core criterion for determining whether it is a joint debt is not a time factor - the duration of the relationship between the husband and wife, but whether it is due to the purpose of the husband and wife living together.

Personal debts that are not related to marital life can only be paid off by the borrower with personal property.

Legal basis

Article 1064 of the Civil Code stipulates that debts incurred by both husband and wife as jointly signed by both husband and wife or by one of the husband and wife as a result of a joint expression of intent, as well as debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship for the daily needs of the family, 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 husband and wife's common life, joint production and business, or based on the common intention of the husband and wife.

The differences between joint debts and personal debts of husband and wife are as follows: 1. The subject of responsibility is different: the subject of responsibility for the joint debts of husband and wife is both husband and wife or any one of the husband and wife, and the subject of responsibility for personal debts is an individual; 2. The nature of the debt is different

The joint debts of husband and wife have the dual nature of personal and property, and personal debts are incurred by individuals in foreign economic exchanges, and the reasons are diverse. Legal basis: Article 41 of the Marriage Law stipulates that at the time of divorce, the debts originally incurred by the husband and wife living together shall be repaid jointly. If the joint property is insufficient to be repaid, or the property is owned by each other, it shall be repaid by agreement between the two parties; If the agreement is not reached, the people's court shall make a judgment.

Legal analysis: Debts incurred by both husband and wife in the joint signature of the husband and wife or the subsequent recognition of the husband and wife, 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 husband and wife's common life, joint production and business, or based on the common intention of the husband and wife.

Legal basis: Article 1064 of the Civil Code of the People's Republic of China Debts borne by the husband and wife as jointly signed or recognized by one of the husband and wife after the fact, as well as 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, 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 husband and wife's common life, joint production and business, or based on the common intention of the husband and wife.

The scope of joint debts of husband and wife can be roughly summarized as follows: 1. Debts incurred by husband and wife for the common life of the family. 2. Debts incurred by one or both spouses for the performance of statutory maintenance obligations.

3. Debts incurred in the performance of statutory maintenance obligations. 4. Debts incurred to pay for the education and training expenses of one of the spouses or the two Zen finch. 5. Debts incurred to pay for the social interaction expenses of legitimate and filial piety.

6. The debts incurred by He Chan when the husband and wife are jointly engaged in production and business activities. 7. Debts that are agreed upon by the husband and wife as joint debts. Personal debts are generally summarized as:

1. Premarital debts of one of the spouses. 2. Without the consent of the other party, one of the spouses finances the debts of a person who has no obligation to support him. 3. Debts incurred by one of the husband and wife to raise funds to engage in business activities without the consent of the other party, and their income is not used for living together.

4. The property that is determined in the will or gift contract to belong to only the husband or wife, and the debts arising from the will or gift contract are the personal debts of the party receiving the will or gift. 5. The husband and wife agree on the debts to be borne by the individual in accordance with the law. 6. Debts incurred by one of the spouses due to unreasonable personal expenses.

7. Other debts that should be borne by individuals in accordance with the law.