How to divide the property when the couple divorces, and how to divide the property when the couple

Chapter III of the New Marriage Law.

Article 17 The following property acquired by husband and wife during the existence of their marital relationship shall be jointly owned by the husband and wife:

1) Wages and bonuses;

2) the income from production and operation;

3) income from intellectual property rights;

4) Property obtained by inheritance or donation, except as provided for in paragraph 3 of Article 18 of this Law;

5) Other property that shall be jointly owned. Husbands and wives have equal rights to dispose of jointly owned property.

Article 18: In any of the following circumstances, it is the property of one of the husband and wife:

1) the pre-marital property of one of the parties;

2) Medical expenses, living allowances for the disabled, and other expenses received by one party 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 side.

If a husband and wife purchase a property after marriage, but because the economic conditions of the family were not very good at that time, the purchase was jointly purchased with another relative of the man, and the property rights are jointly owned by the husband and wife and this relative, although such real estate is real estate or other property in the name of one or both husband and wife, but involves the interests of other family members other than the husband and wife, that is, the property is the joint property of the family, in this case, it is not a problem that can be solved in a divorce case, because the parties to the divorce case are both husband and wife. No third party can participate in the litigation as a party, so the parties to such cases may formulate a litigation strategy in accordance with Article 20 of the Several Specific Opinions on the Handling of Property Division Issues in the Trial of Divorce Cases by the People's Courts, which stipulates that: "If the joint property of the husband and wife has not been separated from the joint property of the family at the time of divorce, and one party requests the dissolution of the property, the divorce and the property that has been ascertained may be dealt with first, and the parties may be informed to handle the division of the property that is really difficult to ascertain for the time being; or suspend the divorce proceedings and resume the divorce proceedings after the trial of the property dissolution case is concluded. "Of course, if it is not a property in the name of one or both of the spouses, but it may be a property jointly owned by the husband and wife and their family members, of course, it may be considered to determine the share of the husband and wife through a property separation lawsuit, and then divide it in the divorce proceedings.

The house that the husband and wife buy jointly after marriage is registered in the name of one person on the real estate deed, it is the joint property of the husband and wife, and the divorce is to be divided.

How to divide the house when the couple divorces.

Legal analysis: (1) After marriage, both husband and wife contribute capital to obtain the property rights of the house, and no matter whose name is on the real estate certificate, they are all joint property. At the time of divorce, the party who acquires the house pays half of the value of the house to the party who does not have the house, and the owner of the house pays the remaining principal and interest alone.

2) If one of the spouses has paid the full price of the house before marriage and obtained the real estate certificate, then the house is pre-marital property and the other party has no right to claim division.

3) One of the husband and wife purchased a house through a mortgage loan before marriage, obtained the real estate certificate, and repaid the loan jointly after marriage. Although the house was purchased by one party before the marriage, the part of the house that increases in value after the marriage and the part that the loan is jointly repaid shall be regarded as joint property unless otherwise agreed by the husband and wife.

4) One of the husband and wife paid part of the house before marriage, but obtained the real estate certificate after marriage, and the house where both parties jointly repay the loan after marriage, does not mean that the house that obtains the real estate certificate after marriage should be marital property, but to subdivide the property ** into two parts before and after marriage.

5) If one of the husband and wife has paid part of the house price before marriage and jointly repaid the loan after marriage, or one party uses personal property to repay the loan but the house appreciates in value, and the house has not yet obtained the real estate certificate at the time of divorce, the people's court should not make a judgment on the ownership of the house, and shall make a judgment to be used by the parties according to the actual situation. After obtaining the house ownership certificate, either party will file a separate lawsuit with the court.

6) The parents' capital contribution before the marriage of the two parties shall be regarded as a gift to their children, and if there is a separate agreement, the capital contribution of the mother after the marriage of the two parties shall be regarded as a gift to the husband and wife, unless otherwise agreed.

7) In addition to the names of both husband and wife, the real estate certificate also has the names of the children or the names of the parents. At this time, according to the application of the parties, the division of the property of the part of the house that is not filed will not be heard, and the party who sues in a separate case will suspend the trial of the case according to the application of the parties, and tell the parties to file a separate lawsuit for property dissolution, and then divide the house jointly owned by the husband and wife according to the judgment of the dissolution of the property.

8) If both parties contributed to the purchase of the house before the marriage, but only the name of one party is on the real estate certificate obtained by Bipeng before the marriage, if the other party does not admit that the other party contributed capital when purchasing the house and considers the house to belong to his personal property before the marriage, the house will not be divided. Even if the other party contributed the money, but could not prove the capital contribution, the court could not order one party to give appropriate compensation.

Legal basis: Article 1087 of the Civil Code of the People's Republic of China In the event of divorce, the joint property of the husband and wife shall be disposed of by mutual agreement; 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.

If the husband and wife cannot reach an agreement, they can file a lawsuit with the people's court for division, and the people's court will generally award to one party, and the party who obtains the house must give the other party corresponding compensation.

[Legal basis].

Article 1062 of the Civil Code of the People's Republic of China.

The following property acquired by the husband and wife during the marriage relationship shall be the joint property of the husband and wife and shall be jointly owned by the husband and wife:

1) Wages, awards, and remuneration for labor services;

2) Income from production, operation and investment;

3) income from intellectual property rights;

4) Inherited or donated property, except as provided for in item 3 of Article 1063 of this Law;

5) Other property that shall be jointly owned.

Husband and wife have equal rights to dispose of joint property.

Article 1087.

In the event of a divorce, the joint property of the husband and wife shall be disposed of by mutual agreement; 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.

Legal Analysis: 1. Handling of Houses Jointly Owned by Husband and Wife or Owned by One Party The house purchased or built jointly by the husband and wife during the existence of the marital relationship, or the house purchased and built by both parties jointly funded before marriage, is a house jointly owned by the husband and wife, and shall be divided as the joint property of the husband and wife in the event of divorce. According to Article 20 of the Interpretation (II) of the Marriage Law:

When the two parties are unable to reach an agreement on the value and ownership of the house in the joint property of the husband and wife, the people's court shall handle it separately according to the following circumstances: (1) where both parties claim ownership of the house and agree to obtain it through bidding, it shall be permitted; (2) If one party claims the ownership of the house, the appraisal agency shall evaluate the house according to the market, and the party that obtains the ownership of the house shall compensate the other party; (3) If neither party claims the ownership of the house, the house shall be auctioned according to the application of the parties, and the proceeds shall be divided.

Legal basis: Article 26 of the Civil Code of the People's Republic of China The income generated by the personal property of one of the husband and wife after marriage shall be recognized as the joint property of the husband and wife, except for the fruits and natural appreciation. Therefore, it is determined that the part of the value added from the house purchased by one of the spouses before or after marriage belongs to the personal property of one of the spouses.

In the event of a divorce, the increased value of the house will not be divided.

Property subdivision is divided into the following situations:

1. If one of the parents contributes to the purchase of the house, and the property right is registered in the name of the investor's child, it is the personal property of one of the husband and wife;

2. The parents of both parties contribute to the purchase of the house, and divide it according to the share of the contribution;

3. If one party buys a house before marriage, pays the down payment with personal property and takes out a bank loan, and repays the loan with the joint property of the husband and wife after marriage, and the immovable property is registered in the name of the party paying the down payment, the immovable property shall be disposed of by agreement between the two parties at the time of divorce, and 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 property rights registration party, and the loan that has not yet been repaid is the personal debt of the property rights registration party. In the case of divorce, the party registering the property rights shall compensate the other party for the amount jointly paid by the parties after marriage and the corresponding part of the property appreciation;

4. The ownership of a house bought with a mortgage loan is special. For the division of property rights, in principle, it should be divided equally;

5. If one party gives the property to the other party, as long as the ownership has not been transferred, it still belongs to the donor and will not be divided;

6. Where a house is purchased in the name of the parents, and the other party claims to divide the house according to the joint property of the husband and wife at the time of divorce, the people's court will not support it. The capital contribution made at the time of purchase of the house can be treated as a creditor's right.

Legal basis] According to Article 7 of the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China, if the immovable property purchased by one of the parents for the children after marriage is registered in the name of the funder's children, it may be regarded as a gift to only one of the children in accordance with the provisions of Article 18 (3) of the Marriage Law, and the immovable property shall be recognized as the personal property of one of the husband and wife.

Where the immovable property purchased by both parents is registered in the name of one of the children, the immovable property may be deemed to be jointly owned by both parties in accordance with the respective parents' share of the capital contribution, unless otherwise agreed by the parties.