Why should the divorced house be returned to the other party? The house was bought in the name of this man. After the divorce, the house belongs to the other party, and the main lender may be obliged to repay the loan. It should be handled according to the divorce situation. Let's share why the divorced house belongs to the other party.

The divorced house belongs to the other party 1 Why should it be returned? First, after divorce, the house belongs to the other party. Is the main lender still obligated to repay?

1, maybe, depending on the divorce.

2. When the two parties divorce, they agree on the division of real estate, or if the real estate is owned by one party after a court decision, and the owner of the house is agreed or decided to continue repayment, the owner of the house will continue to undertake the obligation of repayment to the bank.

However, if the husband and wife jointly own property and get married in mortgage to buy a house, both parties are the same borrower. Therefore, after the divorce, only the divorce agreement can not relieve either party of the repayment obligation, and it is necessary to apply to the bank to change the main lender or reduce the * * * co-mortgagor.

Otherwise, the repayment obligation has not been lifted, and the other party still has to repay as agreed.

3. Legal provisions: Civil Code

Article 1064 Debts of Husband and Wife * * * Debts that one of the spouses has the same signature or ratified afterwards, and debts that one of the spouses bears for the daily needs of the family in his own name during the marriage relationship belong to the same debt of the husband and wife.

Debts incurred by one spouse in his own name during the marriage relationship that exceed the needs of family daily life are not joint debts of husband and wife; However, the creditor can prove that the debt is used for the husband and wife's life, production and operation, or based on the same meaning of both husband and wife.

Second, how to divide the divorce real estate loan before it is paid off?

When the mortgage is not paid off at the time of divorce, the real estate division should be divided into two different situations according to the purchase time:

(1) The house was bought after marriage. In this case, the house undoubtedly belongs to both husband and wife. Therefore, the outstanding mortgage also belongs to the debts of both parties. When divorced, the house is divided with the mortgage.

(2) The house was purchased by one party before marriage. In this case, according to whose name, it is divided into two different situations:

1. Name of the party who delivered the house before marriage. In this case, dividing the property means that "the property belongs to the property registration party, and the unpaid loan is the personal debt of the property registration party." At the time of divorce, the party handling the property right registration shall compensate the other party for the money paid by both parties to repay the loan and the corresponding value-added part of the property. "

Obviously, in this case, the house should be owned by the buyer who paid before marriage, but the part of repayment after marriage and its value-added part should be regarded as the joint property of husband and wife, and the buyer who paid before marriage should give compensation. At the same time, the outstanding mortgage will also be borne by the buyer who paid before marriage.

2. In the name of both husband and wife. In this case, the house belongs to the joint property of husband and wife, so the mortgage still owed belongs to it. When divorcing, the house and mortgage should be divided together. As for the house payment paid by one party before marriage, it should be treated as a creditor's right.

The divorced house belongs to the other party, why should we repay the loan? Both husband and wife bought a house with the same loan, and then agreed to divorce, stipulating that "after divorce, the house belongs to the woman and the mortgage is borne by the woman alone". Is this agreement valid when the woman can't repay the loan as agreed?

A few days ago, Shanghai Jinshan Court heard a similar case.

After the divorce, the bank recovered money from both men and women.

Mr. Wang and Ms. Li got married on 20 16 1 After marriage, they got married in a house in a certain district of Jinshan District. Their savings were only enough for the down payment, so Mr. Wang signed the Personal Housing Mortgage Loan Contract with Bank A. ..

It is agreed that Mr. Wang will borrow RMB 6,543,800+0,500 from the bank for the need of house purchase, and the loan period will be from July 3, 2065.438+06 to July 3, 2046. The contract also stipulates the conditions of interest, interest payment, penalty interest and early loan collection. Ms. Li also signed a letter of commitment in the above contract, stating that the debts under this contract are joint and several debts of husband and wife, and agreed to bear joint and several liabilities.

On August 20 16, Mr. Wang and Ms. Li registered the house, and the owner and mortgagor of the house were husband and wife. After buying a house, Mr. Wang and Ms. Li pay the mortgage monthly. However, after the marriage, the two people were in constant conflict and agreed to divorce in May 2020. The divorce agreement stipulates: "The house located in a residential area in Jinshan District will be owned by Ms. Li after divorce, and then the mortgage will be returned by Ms. Li."

Later, Ms. Li was unable to repay the subsequent mortgage on time due to changes in her life and work. At the beginning of 20021,Bank A sued Shanghai Jinshan Court, demanding that Mr. Wang and Ms. Li return the principal and interest of the bank loan; If the repayment obligation is not fulfilled on schedule, request to auction the above-mentioned house according to law to realize the mortgage right.

Court: The internal agreement has no legal effect without the consent of the bank.

After the trial, the court held that although Mr. Wang had a defense in the divorce agreement, it was clearly agreed that the house was owned by Ms. Li, but the bank arrears of the mortgaged property were returned by Ms. Li, and she should not bear the repayment responsibility. However, the court held that when Bank A issued the loan, Mr. Wang and Ms. Li were indeed husband and wife, and the debts involved also occurred during the existence of the husband and wife relationship.

Ms. Li also signed the debts under the loan contract as the same debts of husband and wife. Divorce agreement is an internal agreement between the two parties to bear the debts after divorce. Without the consent of Bank A, it has no legal effect, and Bank A still has the right to claim corresponding rights according to the loan contract.

Finally, the court ordered Mr. Wang and Ms. Li to return the principal, interest and overdue interest of Bank A; If Mr. Wang and Ms. Li fail to return on time, Bank A has the right to realize the mortgage right by discounting the collateral or auctioning or selling it.

The judge's statement

According to the provisions of the Civil Code, the debts incurred by both husband and wife with the same signature or by one party's ratification afterwards, and the debts incurred by one party in his own name for the daily life of the family during the marriage relationship, belong to the same debt of husband and wife.

When a husband and wife dissolve their marriage, they can make an agreement on how to share the debts, but if the agreement involves the interests of a third party, whether it can be binding on the third party depends on the specific circumstances. The clause in the divorce agreement that "the house is owned by the woman and the mortgage is borne by the woman alone" is essentially an internal agreement that the husband and wife share the debt as debtors. Whether this agreement can be binding on a third party depends on whether the third party knows or agrees.

For creditors, it will affect the effective realization of creditor's rights to transfer the debts originally borne by two people to one of them separately. Therefore, according to the law, if the debtor transfers all or part of the debt to a third party, it shall be approved by the creditor.

Why should the divorced house be returned to the other party? 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 property after marriage must belong to the same property, because the law allows the parties to make agreements on the same property or personal property themselves.

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 Several Issues Concerning the Application of the Guarantee Law stipulates: "If houses and other buildings that have not yet been built or are under construction are mortgaged according to law, and 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?

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. If 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 demand the division of the house when divorcing. 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.

Mortgage to buy a house after marriage, how to divide the house with a loan after divorce?

(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 consensus can be reached, the court needs to make a judgment according to law. According to Article 21 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Marriage Law (II), the court shall 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.

How to divide the value-added part of mortgaged property in 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.