Article 19 of the Marriage Law stipulates that the agreement between husband and wife on the property acquired during the marriage relationship and the property before marriage is binding on both parties. Not all the properties purchased after marriage must belong to the same property, because the law allows the parties to make their own agreements on the same property or personal property.

In China, the legal nature of commercial housing mortgage is not clearly defined in the current laws. In practice, the common practice is that the buyer mortgages the rights and interests under the house sales contract signed with the real estate agent to the bank, and the bank lends money to the buyer, and gives the money to the real estate agent to pay the house price in the name of the buyer. If the purchaser fails to repay the principal and interest due, the mortgage bank has the right to change the price of the mortgaged property and give priority to compensation, or the real estate agent buys back the house and pays the principal and interest of the bank with the repurchased money. Article 47 of the Supreme People's Court's Interpretation on the Application of Several Issues stipulates: "Houses and other buildings that have been built or are under construction are mortgaged according to law, and if the parties have registered the mortgaged property, the people's court may determine that the mortgage is valid. "Therefore, China's mortgage contract is still a mortgage contract in essence.

Generally speaking, the division of divorced houses should follow the following three principles:

1. If both parties don't want the ownership of the house, they can auction the house again according to the application of both parties and divide the income.

2. Value-added housing. In the case that both parties want it, but negotiation fails, bidding auction can be adopted, and the highest bidder obtains the property ownership and pays the bid to the other party who fails to obtain the property as compensation.

3. After negotiation, if one party claims the ownership of the house and the other party abandons the house, the house will be appraised by a special appraisal institution according to the market price, and the party that obtains the ownership of the house will give the other party corresponding compensation according to the detailed rules of real estate division in the Marriage Law.

So how do you divide the house with a mortgage when you divorce?

Property can be divided in divorce, provided that the husband and wife share the same property. At present, the house has always been a matter of great concern to both parties during divorce, so who owns the mortgaged house during divorce? Who will pay the next mortgage?

1. mortgage to buy a house before marriage, how to divide the house with a loan after divorce?

(1) Before marriage, one of the husband and wife purchased the house with personal property and mortgaged it. Before marriage, one of the husband and wife handles the real estate license, and after marriage, both parties repay the loan. How to divide the divorced mortgage house?

In this case, the house is the personal property of one party, and the other party has no right to ask for division when divorcing. However, the spouse who participates in the repayment together with * * * has the right to ask the other party to return the paid-off part. What needs to be clear here is that * * * repays the loan with one party's personal salary or both parties' salary, which should be considered as * * * repaying the loan with the same salary. Therefore, when a house with a loan is divorced, one party who repays the loan can ask the other party to return the house payment. You can also claim compensation for the appreciation of the house.

(2) One spouse buys a house with personal property before marriage and mortgages the loan. After marriage, both parties repay the money and obtain the real estate license after marriage. How to divide the divorced mortgage house?

In this case, the mortgaged house is the personal property of one party before marriage and will not be divided when divorced. Because one party bought mortgage to buy a house with personal property before marriage, the title certificate obtained after marriage is the confirmation of buying a house before marriage and does not belong to the joint property of husband and wife. If the property of husband and wife is considered to be the same just because they get the property certificate after marriage, there will be a phenomenon that one party has no capital contribution at all but becomes the owner of the house just because of marriage. This result violates the principle of fairness.

(3) Before marriage, both husband and wife buy a house with * * * real estate and mortgage the loan. After marriage, * * * repays the loan, and obtains the real estate license before marriage and the real estate license is registered in the name of one party. How to divide the divorced mortgage house?

Because in general, we determine who the property belongs to based on the name on the property ownership certificate. Therefore, it is very easy to be recognized as the property of the registrant at this time. Therefore, when the unregistered party claims that the house is the same property, it must first prove that it has fulfilled its investment obligation to buy the house before marriage; Second, it is necessary to prove that before marriage, the premise is that both parties agree that the purchased house belongs to * * * *. If the corresponding evidence cannot be provided, the property is deemed to be the property of one party and will not be divided when it is divided.

(4) One party pays the down payment before marriage, and how to divide the mortgaged house that has not obtained the ownership at the time of divorce?

In this case, we should distinguish different situations to deal with. When one spouse pays the down payment before marriage and repays the loan with personal property after marriage, the house is of course the personal property of the other spouse, and the other spouse has no right to ask for the division of the house at the time of divorce. Of course, this party has no obligation to pay off the remaining outstanding debts. If one party pays the down payment before marriage and the husband and wife jointly repay the loan after marriage, the house that has not obtained the ownership of the house at the time of divorce should still be the personal property of one party, and the remaining mortgage debt is also his personal debt. If one of the husband and wife is involved in repaying the loan, compensation shall be given. The party has no obligation to pay off the remaining outstanding debts.

(5) Before marriage, one parent of the husband and wife participated in the purchase and obtained the real estate license after marriage. How to divide the divorced mortgage house?

According to the law, before a couple get married, if their parents contribute to the purchase of a house for both parties, the contribution shall be regarded as a personal gift to their children, unless the parents expressly give it to both parties. Therefore, before marriage, parents invested in buying a house, and after marriage, * * * owing on the loan does not affect the ownership of the house. At this time, when the divorced mortgaged house is divided, it does not participate in the division, but only belongs to one party.

(6) The house is a down payment made by parents before marriage, and both husband and wife repay the loan after marriage. In this case, who owns the house when divorced?

If the house falls under the names of both husband and wife, it shall be deemed that the parents' contribution is a gift to their respective children, and the house belongs to the common property of husband and wife. Only one parent obtains the ownership of real estate through full purchase, and what is registered in the name of their children belongs to personal property.

For both parents to make a down payment, the house that the husband and wife repay the loan should belong to the joint property of the husband and wife, and the husband and wife should negotiate and divide it when divorcing.

2. How to divide the houses with loans after mortgage to buy a house's divorce after marriage?

(1) After marriage, one party pays the down payment with his pre-marital property, and both husband and wife repay the loan. If divorced, how to divide the house?

As for the repayment part, it belongs to the joint property of husband and wife, and both parties have the right to divide it.

Two situations: ① Only one party's name is registered on the real estate license. The house only pays the full down payment, and the down payment is treated as personal property; The repayment of the house and the appreciation of the house belong to both husband and wife. Therefore, if both parties jointly repay the loan, both parties have the right to divide the property during the divorce. If negotiation fails, it will be awarded to the house registration party. For the party that has not obtained the real estate, it is necessary to compensate according to the repayment amount and the value-added part of the house. ② The names of both parties are registered on the real estate license. The house is the same property, and both parties have the right to divide the house when divorced.

Therefore, the house bought by one party with a personal property loan before marriage belongs to personal property, and the down payment part belongs to both husband and wife, and both parties have the right to divide it.

(2) After marriage, if one or both parties purchase the house jointly owned by husband and wife and obtain the real estate license, how to divide the divorced mortgaged house?

After marriage, one party buys a house with the joint property of husband and wife, and repays the loan with the joint property of husband and wife. No matter which name the real estate license is registered in, the real estate should be shared by husband and wife. Divorce property is divided according to the joint property of husband and wife.

(3) After marriage, both husband and wife have property purchased by * * *, but they did not obtain ownership at the time of divorce. How to divide the house?

In this case, when divorcing, both husband and wife should negotiate first. If an agreement can be reached, the ownership of the house will be determined according to the agreement. If no agreement can be reached, the court needs to make a judgment according to law. According to Article 2 1 of the Interpretation of the Supreme People's Court on the Application of Certain Issues, the court should decide that the house should be used by one party first according to the actual situation. It is inappropriate to judge the ownership of a house. After the ownership of the house is completely obtained, if there is any dispute, both parties may bring a lawsuit to the court separately.

(4) After marriage, the parents of both parties contribute to buying a house, and the husband and wife jointly repay the loan, and the property rights are registered under one name. Who owns the divorce property?

According to the provisions of the judicial interpretation of the Marriage Law, if the parents of both parties subsidize their children to buy a house after marriage and the property rights are registered in the name of one person, the property can be recognized as both parties' possession according to their respective share of capital contribution. When the divorce property is divided, if the parties agree otherwise, it shall be handled according to the agreement. If there is no agreement, it shall be divided according to the proportion of capital contribution. For the loan to be repaid, if the husband and wife have no agreement on the property, the money to repay the loan belongs to the joint property of the husband and wife and does not need to be divided when divorcing.

(5) If one parent pays a down payment, the property right is registered in the children's name, and the husband and wife jointly repay the loan, what about the divorced mortgage house?

In this case, the down payment can be considered as a gift only for the children of investors. At the time of divorce, the real estate is the property of husband and wife, and the down payment should be recognized as the personal property of the investor's children. * * * The repayment part belongs to the husband and wife * * * to repay the loan with real estate, which is inseparable when divorced.

3. How to divide the value-added part of the mortgaged property during divorce?

As the most important part of divorce property division, real estate has many forms in practice. According to the time of marriage, it can be divided into pre-marital purchase and post-marital purchase. Whether buying before marriage or after marriage, there may be two ways: one-time payment and mortgage payment. Among them, the property purchased by pre-marital mortgage is the most controversial in divorce property division. Based on Article 10 of Interpretation III of Marriage Law in China, this paper analyzes the division of the value-added part of pre-marital mortgage purchase of real estate during divorce;

Interpretation III of the Marriage Law Article 10 Husband and wife sign a contract for the sale of real estate before marriage, pay the down payment with personal property and borrow money from the bank, and repay the loan with the joint property of husband and wife after marriage. If the real estate is registered in the name of the down payment payer, the real estate will be handled by both parties through agreement at the time of divorce.

If no agreement can be reached in accordance with the provisions of the preceding paragraph, the people's court may decide that the real estate belongs to the party with registered property rights, and the unpaid loan is the personal debt of the party with registered property rights. After marriage, the amount paid by both parties to repay the loan and the corresponding value-added part of the real estate shall be compensated to the other party by the party handling the property right registration according to the principle stipulated in the first paragraph of Article 39 of the Marriage Law.

Interpretation of the law Below we analyze the above laws as follows:

First of all, the above provisions only require the signing of real estate sales contracts before marriage, and do not require the acquisition of property rights before marriage.

Secondly, the down payment must use personal property. For example, if the house purchased by one of the husband and wife at personal expense before marriage is registered in the name of the other party, according to the reply in Article 65 of the Minutes of the Civil Trial Work Conference of Guangdong Province (Guangdong High Law No. 20 12240) as determined by the Guangdong Higher People's Court, if it cannot be proved that the investor is clearly owned by the registrant, it should generally be regarded as the joint property of husband and wife.

Finally, the most important point is how to compensate each other. According to the above provisions, only the amount paid for repayment and the corresponding value-added part of the property are emphasized for compensation. How to calculate the corresponding property appreciation part is the key to compensation. In practice, there are generally three calculation methods:

The first type: the total amount of principal repayment after marriage ÷ the original house price × the current house price ÷2.

The second type: the total amount of principal repaid after marriage ÷ the original house price × (current house price-original house price) ÷2.

The third type: the total amount of principal repayment after marriage ÷ the original price of the house × (the current price of the house-the value of the house at marriage) ÷2.

The first two calculation methods tend to ignore the pre-marital property value-added part, and the third one considers the pre-marital property value-added part and excludes the pre-marital property value-added part from the segmentation. The reason why there are the above three calculation methods is because there are two main opinions on the division of housing value-added parts:

The first opinion is that according to the provisions of Article 11 of Interpretation II of Marriage Law in China, the income obtained by one party through personal property investment shall be regarded as the joint property of husband and wife. Therefore, the corresponding value-added part of the house caused by personal repayment before marriage, including the value-added part before marriage and the value-added part after marriage, should also be regarded as the common property of husband and wife, and the value-added part of the house caused by repayment after marriage should be shared equally by both parties.

The second opinion is that the corresponding value-added part of the house caused by personal repayment before marriage includes pre-marriage value-added and post-marriage value-added and belongs to the buyer, and the buyer should make appropriate compensation to the other party for the value-added part of the house during the marriage relationship.

The first opinion does not distinguish the type of income. As long as the income from personal property investment after marriage is recognized as the joint property of husband and wife, in fact, Article 5 of Interpretation III of Marriage Law has refined this provision, that is, "the income generated by personal property of a husband and wife after marriage shall be recognized as the joint property of husband and wife except fruits and natural appreciation", and we know that the appreciation of real estate is generally the natural appreciation of the house itself [excluding artificial appreciation through decoration]. The general appreciation of real estate and the interest generated by buying bonds or using personal property for savings offices are different from the risk nature of investment income. The ownership of the value-added part should be determined according to the ownership of the principal or the original. Therefore, it is more fair to use the third method (the total repayment principal after marriage ÷ the original price of the house × (the current price of the house-the value of the house at the time of marriage) ÷2) to calculate the corresponding appreciation of the house as compensation.

(Remarks: At present, there are different views on the compensation calculation method for the value-added part of mortgaged real estate in practice. The above views are for your reference only. )

When the divorce is agreed, the house belongs to the other party. Why pay the mortgage?

Let's look at a case first:

Shortly after marriage, Zhang and he paid a down payment, bought a new house, and took out a mortgage loan in the name of Zhang. Due to marital disharmony, the two parties divorced on 20 15, stipulating that the house would be owned by Gao and the house loan would be repaid by Gao. After that, both sides found their relatives and set up their own new families. However, since May 20 16, Gao failed to repay the loan to the bank on time. Because he went through the mortgage loan formalities in the name of Zhang, the bank asked Zhang for it many times, but Zhang was forced to repay the loan for two months, totaling 6 100 yuan. Zhang was angry, but found Gao to say something and asked him why he didn't repay in time. Gao ignored it and secretly rejoiced. Zhang believes that the divorce agreement between the two parties is legal and valid, and Gao should perform it according to the agreement. He believes that Gao violated the provisions of the divorce agreement and appealed to the court, requesting the court to order Gao to return the bank loan he had paid 6 100 yuan and compensate for various losses.

Then the question is coming:

Since the "Divorce Agreement" stipulates that Gao obtains the ownership of the house, Gao repays the bank loan. Why does Zhang still need to repay?

case analysis

This is because the loan between Zhang and Gao was formed by the husband and wife borrowing money from the bank to buy a house during the marriage relationship, which belongs to the same debt of husband and wife. As a creditor, the bank has the right to require both husband and wife to repay the loan. Although the debts they agreed in the divorce agreement, the bank as a creditor can't fight, but the bank has the right to ask Zhang Gao or * * * to repay the bank loan. However, in this case, after repaying the due bank loan, Zhang has the right to recover from Gao, that is, to exercise the right of internal recovery.

Husband and wife can stipulate creditor's rights and debts or divide and dispose of property in the divorce agreement. As long as this agreement does not violate the mandatory provisions of the law, it is legally binding on both husband and wife, and either party needs to abide by it. However, the debt commitment agreement between husband and wife is only valid between husband and wife, and may not be against a bona fide third party or creditor.