A New Interpretation Of The Marriage Law: How To Divide The Property After Marriage

1, after marriage, the parents give the room, registered under the name of their children, is the children's personal property.

case

After 5 weeks of marriage, his parents bought him a house. Title Certificate It was written on the name of Xiao Zhou. So, does his wife Xiao Lu have a share of the house?

The original text of interpretation (three)

Article seventh: after marriage, the real estate purchased by one parent's parents for their children, the property right registered under the name of the investor's child can be regarded as a gift to only one of their children according to the eighteenth item (3) of the marriage law. The real estate should be identified as the personal property of the husband and wife.

Where the property rights purchased by the parents of the two parties are registered in the name of one party's children, the real estate may be recognized as a share by both parties in accordance with the share of their parents' contribution, unless otherwise agreed by the parties.

Lawyer interpretation

According to the marriage law and related explanations, Marriage During the period of succession, the property that the parents bestowed on their children is regarded as the common property of husband and wife except for the explicit determination in the gift contract only to the husband or wife. But in the case of soaring housing prices, parents often pour all their savings into buying houses for their children, and face the fact that they will not sign written agreements with their children. If the divorce is identified as a common property of husband and wife, it will be contrary to the original intention and intention of parents to buy houses for their children. In fact, it also infringes on the interests of parents who buy houses and buy houses. Therefore, it is reasonable for parents to invest in the registration of their children in the name of their children.

When the real estate is purchased by the parents of both sides, the registration of property rights under the name of one party's children is in accordance with the actual situation. Linking the subject of property registration with the explicit representation of the gift party can make the judgment basis of parents' contribution to the real intention of buying a house more objective, convenient for judicial identification and uniform discretion, and is also conducive to balancing the rights and interests of the marriage couple and their parents.

In this case, the house should be privately owned by Xiao Zhou. {page_break}

2, before transferring, the gift can be revoked.

case

Xiao Lu wrote a contract with Xiaotian before he got married, promising to give his own house to Xiaotian, but he had not been able to handle the transfer procedures. After marriage, Xiaotian was afraid of hurting her feelings and did not press for transfer procedures. He did not want to divorce after a few years, but Lu did not agree to give the house to ODA, and he asked him to fulfil the contract. So, before that marriage. contract Is it effective?

The original text of interpretation (three)

Sixth: during the period of premarital or marital relations, the parties agree to give the property of one party to the other party, and the donor shall cancel the gift before the registration of the property is changed, and the other party requests the decree to continue to perform. The people's court may regulate the matter in accordance with the 186th clause of the contract law.

The 186th clause of the contract law of the People's Republic of China: the donor can cancel the gift before transferring the right of the gift property. The provisions of the preceding paragraph shall not apply to a gift contract or a notarized gift contract with the nature of social welfare and moral obligation such as disaster relief and poverty alleviation.

Lawyer interpretation

A gift contract is a contract whereby the donor gives his property freely to the donee and the donee expresses his acceptance of the gift. According to the 186th provision of China's contract law, the general gift contract can be revoked before the transfer of property rights. For housing grant contracts, if the house has not been transferred to the recipient's name, the donor can cancel the gift. By extension, the principle of application is the same even if it is not a gift between husband and wife.

In this case, the house is still owned by Xiao Lu. Xiao Tian asks Xiao Lu to fulfil the gift contract, and the idea of transacting the house will not be supported by the court.

3, housing reform housing is indivisible and belongs to parents.

case

10 years ago, Xiao Tong's father's unit was divided into public housing. Conduct After the sale of housing reform, the price of the house is 100 thousand yuan after the cost is reduced to the length of service. Xiao Tang and Xiao Deng married 100 thousand yuan deposit to Xiao Tang's father, bought the house from the unit, and the real estate certificate was registered in the name of Xiao Tang's father. Last year, Xiao Tang and Xiao Deng broke up for divorce. Deng claimed that the purchase of the house was jointly owned by their husband and wife, and the house should be separated from the common property of the couple.

The original text of interpretation (three)

Twelfth: during the duration of the marriage relationship, the two sides jointly purchase property in the name of one parent in the name of their parents, and the property rights are registered under one parent's name. When the divorce party claims that the house is divided according to the joint property of the husband and wife, the people's court will not support it. The capital contribution to purchase the house can be treated as a creditor's right.

Lawyer interpretation

"Housing reform housing" refers to the housing reform of residential buildings in China, which is sold to individuals according to the state housing reform policy, and is the historical product of the transition from planned economy to market economy. The sale price of the house is much lower than the market price of the commercial housing, and it is actually the welfare treatment of the unit to the workers. According to the principle of acquisition of property, the property right of the house should belong to the owner of the house. If the actual contributor is not the employee, the relationship between the actual investor and the employee is only creditor's rights and debts. The actual investor can claim repayment, but can not advocate the property right of the house.

In this case, Xiao Deng could not advocate housing as a common property of husband and wife, but she could advocate dividing the house purchase as the common creditor's rights of the couple.

4, pension insurance is not yet expired, and can not be divided.

case

Xiao Jia and Ronaldinho have been married for more than 10 years, because Xiao Jia has not been fixed. work Unit, two people used common savings to buy a personal pension insurance for Xiao Jia. Now, two people divorced because of emotional discord. Ronaldinho proposed to divide Xiao Jia's endowment insurance in court. But now that there is 2 years for Xiao Jia to retire for pension insurance, how should they divide their pension insurance? {page_break}

The original text of interpretation (three)

The thirteenth is: when the divorce party has not yet retired, does not meet the requirements for the old-age insurance payment, and the other party requests to divide the pension insurance according to the joint property of the husband and wife, the people's court will not support it. After the marriage, the old age insurance premium will be paid by the joint property of the husband and wife. When the divorce party first divides the actual payment part of the pension insurance account into the marital property, the people's court should support it.

Lawyer interpretation

The interpretation of the marriage law (two) stipulates that "the actual or acquired pension insurance for both men and women" belongs to the common property of both husband and wife during the marriage period. However, if it has not reached the retirement age or is not eligible for the pension insurance, when the divorce is divorced, it is unfair for one party to claim the old age insurance money that the other party has not obtained or can not get at all, and to distribute it as the "common" property of the couple. It will even weaken the state's basic social security for the citizens. The thirteenth of interpretation (three) has been revised and clarified.

In this case, Ronaldinho's claim to divide the pension insurance of Xiao Jia will not be supported by the court. However, the actual payment amount in Xiao Jia's pension account can be divided as a couple's common property.

Two, how to separate premarital property?

1, pre marital personal purchase, mortgage repayment after marriage, when the divorce property ownership registration, housing value-added compensation.

case

In early 2006, Xiao Wang took out all his savings, plus parental support, and bought a small family house on mortgage loan. At the end of 2006, Xiaoli and Xiao Li married and moved to new houses. Two people shared the monthly payment. After 1 years, Xiao Wang obtained all the housing authority. But now the two sides are getting divorced. Xiao Li insists that the house is acquired after marriage, and it should be divided by husband and wife's common property. Xiao Wang advocated that the house was its premarital personal property. Now the house has increased 2 times, and it has nothing to do with Xiao Li.

The original text of interpretation (three)

The tenth is: the husband and wife must enter into a real estate sale contract before marriage, pay the first payment with personal property and make loans at the bank, and then repay the property with the couple's common property after marriage.

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 shall be registered with the property right, and the loan that has not been returned is the personal debt of the party whose property right is registered. Payments made by the two sides after the loan repayment together Relative The value added part of the property shall be compensated by the party in the registration of property rights according to the provisions of the thirty-ninth articles and first paragraphs of the marriage law.

The thirty-ninth article and first paragraph of the marriage law of the People's Republic of China: when divorcing, the common property of husband and wife shall be disposed of by both parties. When the agreement fails, the people's court shall decide on the principle of taking care of the rights of the children and the woman according to the specific circumstances of the property.

Lawyer interpretation

As we all know, the property acquired before marriage belongs to the individual, and the property acquired during the marriage is generally owned by the husband and wife. However, for the house before marriage, the real estate certificate can only be obtained after marriage, and the time for obtaining the property certificate can not be determined mechanically. Because the money to buy a house is a party's personal property before marriage, and has paid all the purchase money to the developer. Before marriage, it has obtained all the claims that the purchase contract confirms to the purchaser, and getting the property certificate after marriage is only a natural transformation of property rights. Therefore, as long as housing transactions happen before marriage, and the sales contract has actually been fulfilled, housing registration should be handled before marriage with personal property.

For both husband and wife, the joint repayment of loans and the appreciation of housing should be compensated by the owner of the house in combination with the amount of joint repayment and the corresponding value added to the house.

In this case, the house should be owned by Xiao Wang, but it should be combined with the ratio of the amount of the joint repayment of the husband and wife to the total purchase amount and the corresponding housing increment. According to the principle of protecting the rights and interests of the woman, Xiao Wang will grant Xiao Li the corresponding compensation. {page_break}

2, the fruits and natural gains arising from the personal property before marriage are not the common property of husband and wife.

case

Xiao Zhao bought 500 grams of gold before marriage, and after several years of marriage with Xiao Liu, the price of these gold has increased more than 2 times. Does gold have a share in the value added of gold these years?

The original text of interpretation (three)

Fifth: the personal property of a couple after marriage. Profit In addition to fruits and natural value added, it should be recognized as the common property of husband and wife.

Lawyer interpretation

The marriage law stipulates that the income from production, business income and intellectual property gains during the period of marriage is owned by both husband and wife. The interpretation of marriage law (two) also stipulates that during the period of marriage, "one party's income from personal property investment is the common property of husband and wife". However, in judicial practice, there are disputes over how to deal with the benefits arising from premarital property itself, such as gold or housing prices, or yields such as deposit interest.

The fifth provision of interpretation three is an interpretation of the basic principles of the civil law of "owners of property belonging to property", and it also avoids the dispute whether property gains belong to "investment income". That is to say, in the future, the personal property of the couple before marriage, whether in the nature of "investment" or "self use" or both of them, is not questioned. The income of the property during the marriage period belongs to the common property of husband and wife except for fruits and natural value added. Two

In this case, the value of the gold purchased by Xiao Zhao before marriage increased, but the value added still belonged to Xiao Zhao's personal property.