A Study On The Division Of Mortgaged House And Its Increment In Divorce Cases

Nowadays, with the house prices soaring, lots of people have to buy houses through housing secured loan. If wife/husband buys a house thorough housing secured loan, and the spouses repay the bank loan after marriage, and wife /husband who bought the house gets the real estate title, the spouses always dispute the ownership and the increment of the house. But there is no such a regulation in Chinese marriage law and judicial interpretations. Theoretical circles have no agreement on the problem. The paper consists of five chapters which study the ownership of the houses bought before marriage and repay the bank loan after marriage.Part 1: A real case about the division of house introduces the problems in divorce, which include the argument on the ownership of the house; the argument on the division of the increment of the house purchased before marriage.Part 2: This part analyzes the regulations made by district courts, which include the wife/husband should own the mo house bought before marriage and its increment; the wife/husband should own the house bought before marriage, but its increment should be divided; the spouses should own the house, and its increment should be divided.Part 3: This part studies different viewpoints about the problem and the theories of the property increment of the common law country. The wife/husband owns the house because of"the deal contract of the commercial house". The marriage cannot turn the personal property into the joint property of the spouses. The co-repayment of the bank loan cannot turn the personal property into the joint property of the spouses.Part 4:The division of the increment is in conformity with the principle of cooperation and equity, and the international practice, which should be the joint property of the spouses. This part also studies how to divide equally the increment of the house between the spouses.Part 5:This part reviews draft"the third interpretation of the Supreme People's Court concerning some questions of the Marriage Law"and proposes a fairly and reasonably method to resolve the problem.