How to divide the co owned house in the event of divorce

As real estate, a house is divided differently from other movable assets such as money.

According to the provisions of the Marriage and Family Section of the Civil Code and relevant judicial interpretations, at the time of divorce, the two parties shall agree to value the house in the joint property of the husband and wife and determine its ownership, if the two parties cannot reach an agreement on the value and ownership of the house, the people's court shall deal with it according to the following circumstances: first, if both parties claim the ownership of the house and agree to obtain it through bidding, the ownership of the house shall be determined by bidding;

Secondly, if one party claims the ownership of the house, the appraisal agency shall evaluate the house according to the market, and the party who obtains the ownership of the house shall give the other party corresponding compensation;

Finally, if neither party claims ownership of the house, the house shall be auctioned according to the application of the parties, and the proceeds shall be divided.

In addition, 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 negotiation fails, it is not appropriate to make a judgment on the ownership of the house, and a judgment should be made on the use of the house by the parties according to the actual situation.

If there is a dispute between the parties after they have obtained full ownership of the above-mentioned houses, they may file a separate lawsuit with the people's court.

Legal analysis: the property purchased by one of the spouses after the marriage, regardless of which name is registered, belongs to the joint property of the husband and wife; Both the down payment and the joint repayment are the joint property of the husband and wife, and in principle, the husband and wife divide it equally. The court will generally rule that the property belongs to the party whose property rights are registered, and the other party will be compensated for the part of the property appreciation and the part of the joint loan repayment.

Legal basis: Article 1065 of the Civil Code of the People's Republic of China provides that a man and a woman may agree that the property acquired during the marriage relationship and the property before the marriage shall be owned separately or jointly, or partly separately or partly jointly. The agreement shall be in writing.

Where there is no agreement or the agreement is not clear, the provisions of articles 1062 and 1063 of this Law apply. The agreement between the husband and wife on the property acquired during the marriage and the property before the marriage is legally binding on both parties. If the husband and wife agree that the property acquired during the existence of the marital relationship shall belong to each other, and the debts owed by the husband or wife to the outside world are known to the counterpart, the personal property of the husband or wife shall be repaid.

Article 1066:In any of the following circumstances during the existence of a marital relationship, one of the husband and wife may request the people's court to divide the joint property: (1) one party has conduct that seriously harms the interests of the joint property of the husband and wife, such as concealing, transferring, selling, destroying, or squandering the joint property of the husband and wife, or falsifying the joint debts of the husband and wife; (2) A person with a legal obligation to support one party suffers from a serious illness and needs medical treatment, and the other party does not agree to pay the relevant medical expenses.

Article 20 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China stipulates that if the parties cannot 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 according to the following circumstances:

1) If both parties claim the 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 give the other party corresponding compensation;

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.

Article 21 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China stipulates that if the parties have a dispute over a house that has not yet obtained ownership or full ownership at the time of divorce and cannot reach an agreement through negotiation, the people's court shall not make a judgment on the ownership of the house, but shall make a judgment to be used by the parties according to the actual situation. Where there is a dispute between the parties after they have obtained full ownership of the houses provided for in the preceding paragraph, they may separately file a lawsuit with the people's court.

The question of how to divide the divorced property is definitely the top priority after the divorce, so how to divide it specifically? What does the law say about this? Let's listen to Lu Lu's explanation.

Legal analysis: The division of the jointly owned house between the husband and wife at the time of divorce shall be carried out in accordance with the following methods: at the time of divorce, the joint property of the husband and wife shall be handled by agreement of both parties; If the agreement is not reached, the people's court shall make a judgment based on the specific circumstances of the property and the principle of taking into account the rights and interests of the woman and the children; In principle, the property jointly owned by the husband and wife shall be divided equally.

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

Article 1076:Where both husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration in person at the marriage registration authority.

The divorce agreement shall clearly state the parties' expression of intent to divorce voluntarily and the consensus on matters such as child support, property, and debt handling.

Article 1079:Where one of the husband and wife requests a divorce, the relevant organization may conduct mediation or directly initiate divorce proceedings in the people's court.

People's courts hearing divorce cases shall conduct mediation; If the relationship has indeed broken down and mediation fails, the divorce shall be granted.

In any of the following circumstances, if mediation fails, a divorce shall be granted:

1) bigamy or cohabitation with another person;

2) Committing domestic violence or abusing or abandoning family members;

3) Having bad habits such as gambling and drug addiction that they have repeatedly taught and not changing;

4) Separated for two years due to emotional discord;

5) Other circumstances that lead to the breakdown of the relationship between husband and wife.

Where one party is declared missing and the other party initiates divorce proceedings, the divorce shall be granted.

Where, after a people's court has ruled that divorce is not permitted, the parties have been separated for one year, and one party initiates divorce proceedings again, the divorce shall be granted.

Article 1085:After divorce, where children are directly raised by one party, the other party shall bear part or all of the child support. The amount of the cost to be borne and the length of the period shall be agreed upon by both parties; If the agreement is not reached, the people's court shall make a judgment.

The agreement or judgment provided for in the preceding paragraph does not prevent the child from making a reasonable demand to either parent in excess of the amount originally set forth in the agreement or judgment when necessary.

Article 1087: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.

Legal analysis: In the event of divorce, the joint house can be divided through negotiation, and if the negotiation fails, you can sue the court.

Legal basis: "Interpretation of the Supreme People's Court on the Application of the Marriage and Family Section (1)" Article 76: When the 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 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 give the other party corresponding compensation; (3) If neither party claims ownership of the house, the house shall be auctioned or sold according to the application of the parties, and the proceeds shall be divided.

1. In the event of divorce, the husband and wife's joint ownership of real estate shall be handled by 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 the principle of taking into account the rights and interests of the woman and the children;

2. In principle, the real estate jointly owned by husband and wife should be divided equally, and the specific treatment can also be different according to the actual needs of production and life and the actual needs of property.

3. The house jointly owned by the husband and wife that is not suitable for division and use shall be owned by one party according to the housing situation of both parties and the principle of taking care of the woman or the innocent party. The party who has been allocated the house shall compensate the other party in the amount equal to half the value of the house. In the case of equal conditions of both parties, the woman shall be taken care of.

4. If the house lived in during the existence of the marital relationship belongs to one party, and the other party requests temporary residence on the grounds that there is no place of residence in the divorce, it can be verified that the temporary residence may be granted according to the needs of the actual situation, but generally not more than 2 years.

How to divide the property under the new marriage law.

1. Real estate value-added part: According to relevant regulations, if the house is purchased by one of the husband and wife before marriage or after marriage, the value-added part of the house is counted as unilateral property. At the time of divorce, he did not need to divide the value-added part of the house.

2. Gift of house within marriage: Before or during the marriage, if one party donates the house to the other party, but the ownership has not been transferred, it will not be effective, and the gift can be revoked. If the ownership has been transferred, it belongs to the donee.

3. The parents of both parties contribute to the purchase of the house: if the parents of both parties jointly contribute, and the property right is only registered in the name of one of the children, the house can be divided according to the share of the capital contribution of the parents of both parties, unless otherwise agreed by the two parties.

4. One party buys a house before marriage and repays the loan jointly after marriage: the husband and wife pay the down payment unilaterally, and the husband and wife repay the loan jointly after marriage, but the real estate is registered in the name of the party who paid the down payment, and the real estate is handled by agreement between the two parties. If the parties cannot reach an agreement, the court may award to the party who registered the immovable property, and the remaining loan shall also go to the party who registered the property, and the other party may receive some compensation.

5. The way of mortgage loan: both parties repay the loan jointly after marriage, and the house belongs to the joint situation of husband and wife. For the separation of property rights, both parties divide it equally.