How to distribute the mortgaged property when the husband and wife divorce? I. Characteristics of mortgage disputes in divorce cases 1. The mortgaged house is "similar in shape but not in spirit". In divorce cases, many people think that the house is personal property if one spouse contributes to the mortgage, and the house is husband and wife's property if both spouses contribute to the mortgage, or the property certificate is obtained before marriage and after marriage. In the eyes of ordinary people, there are many similar mortgage disputes. Because the borrower of the mortgaged house can repay the loan to the bank for up to 30 years, the time limit for performing the mortgage loan contract is longer, and the time for starting to pay the mortgage payment may be before marriage or after marriage. There is a big time lag between signing the house sales contract and obtaining the house property right, and the time to obtain the house property right may be before marriage, during the marriage relationship or after divorce; Due to the influence of different sources of funds to pay the house price, the final result may be completely different. Therefore, in divorce cases, the mortgaged house should be divided into the following situations: 2. The legal relationship involved is complicated. Judging from the legal relationship involved, the legal relationship of mortgaged houses is also complicated, which often involves the relationship between buyers and sellers of commercial houses; The loan relationship between the bank and the buyer (lender); The mortgage guarantee relationship between the bank and the purchaser; The legal relationship of guarantee between banks and house sellers or other professional guarantee companies is relatively independent and interrelated. For example, at the time of divorce, the court decided to change the owner and borrower of the house according to the provisions of the Marriage Law on the division of property and debt. However, according to the Contract Law of People's Republic of China (PRC) (hereinafter referred to as the Contract Law), the transfer of debt requires the creditor's consent to the court's judgment, and the bank, as a party to the loan contract, refuses to re-mortgage on the grounds that the changed borrower is unable to repay. Banks will also lose the right to examine borrowers' credit and repayment qualifications, which is not conducive to the protection of banks' interests. There is no reasonable solution to this conflict in practice. However, in order to avoid the problem of mortgage-to-mortgage, some courts ruled that the debt originally repaid by the man should be borne by the woman, and the woman should pay the man the same amount of house money every month without changing the lender. Although this judgment method avoids the inconvenience of needing the bank to cooperate with the mortgage in the implementation process, it brings a new problem of changing the mortgage. If the woman does not take the initiative to go through the mortgage registration formalities, it will lead to the unsecured loan of the bank, which greatly increases the risk of the bank. Therefore, when dealing with mortgaged houses reasonably in divorce cases, we need to consider how to effectively protect the legitimate rights and interests of the mortgaged parties. 3. It is difficult to actually divide when processing. As can be seen from the above table, there are many cases of mortgaged houses, and many factors should be considered when dealing with them. In divorce cases, it is often difficult to divide property. However, in judicial practice, due to the lack of clear legal provisions, local courts have different opinions on the understanding and application of the law, resulting in the same situation, and there are often many inconsistencies in the identification of ownership. Sometimes, because of a small detail, even the opposite result will appear. Because of the different identification of the ownership of the house, the court has different operations in dividing the mortgaged house belonging to both husband and wife, which is not conducive to protecting the legitimate rights and interests of the parties and safeguarding the legal dignity. Second, several issues involved in the handling of mortgaged houses in divorce proceedings (1) How to handle the houses to which the mortgaged houses belong? China's marriage law stipulates that couples can agree that the property acquired during the marriage relationship and the pre-marital property belong to themselves, * * * all or part of it belongs to themselves, and some * * * all belong to themselves. Husband and wife have an agreement on the ownership of property, and the agreement is clear. At the time of divorce, even if both parties have objections to the handling of mortgaged houses, it is easier to handle such mortgaged houses as long as it can be proved that there is an agreement on the ownership of property. It can be handled directly according to the agreement of both parties. If the house is agreed to be personal property, it belongs to the individual, and if the house is agreed to be owned by the husband and wife, it belongs to the husband and wife. If both parties clearly agree that the mortgaged house belongs to one party and the other party participates in paying off the loan with its own property, this does not change the nature of the house as personal property. Dispose of property during divorce, the house is personal property, and the remaining outstanding loans are personal debts. The part of the returned loan that belongs to the repayment of the other party should be returned. The agreed property belongs to both husband and wife, even if one party actually does not contribute or contributes little, it does not affect the property ownership of the house. (two) the time to obtain the property certificate of the mortgaged house has an impact on determining the ownership of the mortgaged house. There are two legal facts in the transaction of buying and selling houses, namely, the change of creditor's rights and the change of property rights, and two basic civil rights, namely, when the parties conclude a sales contract, the creditor's rights and debts between the parties are established, and when the ownership of the house is transferred, the property rights between the parties change. China implements the real estate registration system, and without registration, the real right effect does not occur. The ownership of houses registered according to law is protected by law. Housing property right, that is, housing ownership, refers to the right to own a house and exercise possession, use, income and disposal of the house. The property right certificate is the only legal property right certificate issued to the property owner by the real estate administrative department of the local people's government, that is, the registration authority, including the property right certificate, the property right certificate and the property right certificate (Guangzhou, Shanghai, Beijing, Xiamen, Chongqing and other places have implemented the integration of property right certificate and land certificate). Housing ownership certificate and ownership certificate have the same legal effect. As far as the mortgaged house is concerned, paying the down payment and using the bank loan to pay the remaining mortgage are all acts of the buyer to fulfill the house sales contract. The time for the buyer to obtain the ownership of the house is the time for the registration of the house, that is, the time for the issuance of the house property certificate. In divorce cases, it is easy to identify the ownership of mortgaged houses according to the time of obtaining the real estate license. There are the following situations: 1, the two parties jointly invest in buying houses before marriage, buy houses in the name of one party or husband and wife after marriage, pay the house price by mortgage, and obtain the property rights during the marriage relationship. Before marriage, both parties agreed that they could get married, and the house purchased by * * * is the joint property of husband and wife. No matter whether the house price is paid off at the time of marriage, as long as the house property right is obtained after marriage. Buying a house after marriage, no matter how much the two parties actually contribute to the mortgaged house after marriage, as long as there is no agreement that the duration of the marriage relationship and the property before marriage belong to each other, even if a house purchase contract is signed in the name of one party, it can be regarded as a family agent, and it is considered that the husband and wife jointly bought a house and obtained the property rights of the house before divorce, and the house is the joint property of the husband and wife. In these two cases, even if there is no house title certificate, only one party's name is registered on the house title certificate, and it should be treated as the joint property of husband and wife when divorced. 2. Before marriage, one of the husband and wife paid all the house price by mortgage and obtained the property right of the house before marriage. According to Article 19 of the judicial interpretation of the Marriage Law of the People's Republic of China (hereinafter referred to as the Marriage Law), "the property owned by one of the spouses as stipulated in Article 18 of the Marriage Law shall not be converted into the joint property of the husband and wife because of the continuation of the marriage relationship." It is clearly stipulated that one of the husband and wife personally contributes to the mortgage before marriage, pays off all the house price before marriage, and obtains the house property certificate registered in the name of the individual before marriage. At the time of divorce, the house belongs to one party's personal property before marriage and cannot be divided into the joint property of husband and wife. 3. Before getting married, one of the husband and wife personally invested in buying a house, paid part of the house price by mortgage, and obtained the house property right before getting married. This situation is the same as above, because the time to obtain the property right certificate is before marriage, and the house is also personal property before marriage. Whether to continue to repay the loan with personal property mortgage after marriage, or to repay the loan with husband and wife property, or to repay the loan partly with personal property and partly with husband and wife property does not affect the ownership of the house. When divorced, the ownership of the house still belongs to the original purchaser. If the husband and wife use the same property to repay the loan, it only creates a creditor-debtor relationship between the husband and wife and does not change the ownership of the house. After marriage, the total amount of loans paid jointly by husband and wife should be divided into one share as the same property and returned by the owner; The outstanding loan after divorce is still a personal debt. In the above situation, the date of marriage registration shall prevail, and the property obtained from the property certificate before marriage belongs to the individual, and the property obtained after marriage is the joint property of the husband and wife. However, it does not mean that the real estate license was obtained after marriage, and the real estate definitely belongs to the property after marriage. Due to the need for housing developers to provide complete pre-housing information, go to the real estate department to apply for a new housing property certificate; Surveying and mapping departments conduct on-the-spot surveying and mapping according to the above data, and draw management maps; The transaction department of the real estate bureau makes the transfer deed according to the surveying and mapping results; The real estate administrative department shall, on the basis of the sales contract, bind the complete files after examination, and make and issue certificates. Generally speaking, the whole process takes about 3 to 6 months. Due to some developers' incomplete preliminary information, inadequate payment of land transfer fees, imperfect service system, busy work of some administrative departments, and the failure of the house seller to cooperate in handling the house property certificate in the second-hand housing mortgage loan, the time for issuing the certificate may be delayed. This has caused one party to sign a commercial housing sales contract in the name of an individual before marriage. It should be that the title certificate has been obtained before marriage, and it is possible to obtain property rights after marriage. Due to the administrative act of application, the property right certificate is issued by the real estate department. Unless the other party has evidence to the contrary to prove that it has the right to the house and applies for registration as the owner, the ownership of the property rights and interests has been determined when signing the house purchase contract before marriage. The party who handles the property right certificate is usually the owner of the house recorded in the final property right certificate. The time for issuing the certificate cannot be delayed due to other factors, and the nature of the mortgaged house cannot be changed into personal property because the property right of the house is acquired after marriage. At the time of divorce, the buyer should provide evidence to prove that the above objective factors lead to the delayed issuance of the title certificate, and the judge should also consider the influence of the acquisition time of the title certificate on the determination of property rights in the trial. (3) The source of funds to pay the house purchase price has an impact on the identification of house ownership. The real estate license is the legal property right certificate to prove the ownership relationship of the house, and the owner registered on the real estate license should be the owner of the property right of the house. However, in some cases, it is often controversial whether the source of funds to pay for the house purchase has an impact on the ownership of the house. 1, actually invested in buying a house, but not registered as the owner of the house. In practice, for the purpose of getting married, one party invests in buying a house with personal property before marriage (including paying the down payment and installment repayment of the mortgaged house). Considering many factors, such as a good relationship in love or the convenience for the other party to apply for a mortgage, and even enjoying preferential policies, the contract for buying a house is signed by the seller and the other party, and the mortgage is paid to the bank in the name of the other party. Finally, only the property right certificate was registered. At the time of divorce, the unknown party can claim the right to the house and ask for confirmation of its share of the house, but bear the burden of proof. It is necessary to prove that before marriage, both parties agree that the purchased house belongs to * * *, and they have invested with the other party * *, and their investment in the house is not a gift or loan. If it can be proved, although the form of expression is that the other party signed a house purchase contract and went through the mortgage formalities. Then this kind of mortgaged house should be regarded as the joint property of husband and wife from the perspective of objective capital contribution and subjective view that the purchased house is the same as all houses, and the mortgage debt should be regarded as the joint debt of husband and wife. 2. One party buys a house before marriage, pays part of the house price (including down payment and installment repayment), pays the mortgage price with the joint property of husband and wife after marriage, and obtains ownership after marriage. If the real estate license after marriage is registered as the ownership of both husband and wife, it can be considered that the two sides have reached a * * * understanding on the ownership of the married house, clearly stipulating that the property rights belong to both parties, and the court will treat the divorce case as * * * *. If the title certificate is registered by one party after marriage, this situation is controversial in both academic and practical circles. The first view is that if the title certificate is registered in the name of one party, the house is still its personal property. The mortgage is his personal debt. After marriage, one of the husband and wife participates in paying off the loan without changing the nature of the house as personal property. The returned loan, which belongs to the part solved by one spouse, shall be returned. The second view is that the ownership of the house is acquired after marriage, and if the property right is registered in the name of one party, it should be recognized as the joint property of the husband and wife, and it will be divided as the joint property of the husband and wife when divorced. For the down payment paid by one party before marriage, the other party will return half; The outstanding loan shall be returned by both parties as husband and wife. The third point of view is that the house should be partly owned by the individual (the part invested by one party before marriage) and partly owned by the husband and wife (the part invested by the husband and wife after marriage) according to the proportion of individual investment and joint investment. The author supports the first view. The reason is that there is no cause for real right, and the change of real right is divorced from the cause and behavior of change. The buyer signed a house purchase contract, paid the down payment, and paid the remaining house payment by bank mortgage (whether one party paid the mortgage payment with personal property before marriage or the husband and wife paid the mortgage payment with the same property after marriage), which are the reasons for the change of house ownership and do not belong to property rights. Even if the house is delivered or moved in, the buyer only gets the right to use it instead of the property right. Because at the time of marriage, the buyer has not actually obtained the ownership of the house, and the house is not the personal property of one party, so there is no partial ownership in the third view. After marriage, the registration of house property rights has changed the property rights, but it does not mean that the buyer has no right before marriage, signed a house purchase contract, handled mortgage procedures and paid part of the house price. In fact, the buyer has obtained the right to expect creditor's rights or property rights. According to the second view, as long as the title certificate is obtained during the marriage relationship, it should be owned by both husband and wife, which ignores the buyer's right to expect property rights and is not conducive to maintaining the stability of the transaction. If the property right of the house is acquired after marriage, the house shall be owned by the purchaser personally. As for the behavior of husband and wife to repay the mortgage after marriage, it belongs to the situation of using the common property of husband and wife to repay personal debts, forming a new creditor-debtor relationship, which does not affect the identification of housing ownership. (IV) How to deal with the mortgaged house that has not yet obtained the ownership of the house at the time of divorce According to Article 21 of the Judicial Interpretation of the Marriage Law of the Supreme People's Court (II): "At the time of divorce, if both parties have disputes over the house that has not yet obtained the ownership or full ownership, the people's court should not judge the ownership of the house, but should judge that it should be used jointly by both parties according to the actual situation. After the parties have obtained full ownership of the house specified in the preceding paragraph, if there is any dispute, they may bring a lawsuit to the people's court separately. " The provisions of divorce, the ownership of the mortgaged house is controversial but can be negotiated, and the ownership of the house can be handled according to the agreement of both parties; If negotiation fails, the court may decide that the mortgaged house belongs to one party, and then deal with it after the real estate license is issued. (5) How to deal with the value-added part of the house? After obtaining the ownership of the house, the value of the house is not static. Generally speaking, the value of the house at the time of divorce is higher than the contract price at the time of signing the purchase contract. The value-added of the house is considered from the reasons, and some are based on the subjective factors of increasing the added value, such as the renovation and repair of the house; Some are based on various external objective factors, such as housing appreciation caused by market price fluctuations. For the mortgaged house, if the other party contributes to the appreciation of the property based on subjective factors, it can enjoy the property income of the value-added part. If the value-added house is caused by objective factors, the value-added property income should be divided according to the ownership of the house. Because the value-added part is attached to the house, the value-added part has been in a state of expecting income without the owner transferring the property. In divorce cases, if one party advocates dividing the value-added part of the house, and the two parties cannot reach an agreement on this, they can first evaluate the market value of the house at the time of divorce and then deal with it. Third, the court should also consider the factor of 1 when dealing with mortgaged houses. The * * * of mortgaged houses and houses purchased after marriage are deemed to be jointly owned by husband and wife according to * * *. Under normal circumstances, the husband and wife will not agree on the share of the house when buying a house, and the house can only be recognized as * * if there is no evidence to prove it when divorcing. However, if one party has evidence that the value of the house repaid before marriage should be divided into shares, it can determine the share of the divided house value according to the capital contribution of each party before marriage, and divide the house rights and interests according to its share; If there is no agreement after marriage, they enjoy the same rights and interests in the value of the house. 2. How to deal with all the mortgaged houses that the husband and wife have paid off their mortgage * * At the time of divorce, the husband and wife who have paid off their mortgage have their houses divided. If the husband and wife reach an agreement, it shall be handled according to the agreement. If negotiation fails, it shall be handled in accordance with the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II), that is, "both parties are husband and wife". (2) If one party claims the ownership of the house, the appraisal institution shall evaluate the house according to the market price, 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 income shall be divided. "The clear housing value through bidding and evaluation is the market value of the house, including the value-added part of the house. When dividing, we should distinguish between the equity part and the debt part. It is decided that one party will buy the house and the other party will compensate at a discount. In principle, the discount compensation is half of the current price of the house, but we should also consider the needs of the house and adhere to the principle of taking care of children and protecting women's interests. 8 3. How to deal with the house with outstanding mortgage? In divorce cases, the court will generally ask the parties whether to ask for division. Some people think that according to the principle of non-prosecution, if the parties do not ask for the division of husband and wife's debts, the court should not handle it. The author thinks that in a divorce case, if the parties apply for dividing the mortgaged house belonging to the joint property of husband and wife, and do not ask to deal with the outstanding mortgage loan, or only ask to determine the debt ratio, the court should consider the debt commitment when making a judgment. Because the mortgaged house that belongs to the common property of husband and wife and has not repaid the loan is very special, if one party decides to obtain the ownership of the house and the house payment has not been paid off, debt treatment is inevitable. If you want to know more about the marriage law, Bian Xiao suggested: What are the conditions for suing for divorce? Can the man sue for divorce? What about adopted children after divorce?