| Along with the third divorce climax appearing after the founding of nation and people are in the prevalence of this form as well as mortgage to buy a house, the problem that how to partition mortgage property after divorce significantly in the judicial practice is still outstanding. On August2011, with the introduction of the "Supreme People’s Court on the application of the People’s Republic of China Marriage Law Interpretation of Several Issues (III)"(hereinafter referred to as the "Marriage Law Interpretation III "),the problem has been again brought to the cusp, and the legitimacy of Marriage Law Interpretation III has been questioned. The reason is that law of a country is not only used to solve the problem, but also adapt to thousands of years of cultural background. If law is contrary to fairness and the principle of protection of vulnerable group of women, it is certain that the majority of people can not accept it.The concept of mortgage housing contains narrow and broad meanings. Narrow mortgage housing is commercial housing mortgages, which includes the coming and existing house mortgage. Broad mortgage housing also includes used house mortgage that is prevailed today. Mortgage houses in divorce proceedings is different from the other houses in the legal nature, most important of which is the legal relationship of mortgage housing is complex, more involved in the main body, which gives housing division some trouble.There are many ways for classification of mortgage housing. Now, The way of whether to obtain certificates of title to the classification criteria for the classification is mostly chosen. Depending on the nature of the housing before divorce, there are two cases which contain parents financed and couples jointly funded the purchase of mortgage housing. Among them, the form that spouse pays down payment before marriage and both husband and wife pay the rest of loan amount is most common. There is one tradition that the man buys house and woman prepares dowry in China since thousands of years. Under the social environment, the value of house is continue rising but the value of dowry is decreasing. Even, the dowry such as household appliance or decoration is worthless after the couple lived ten years or even decades together. After Marriage Law Interpretation Ⅲ appeared, the most direct consequence is that more and more women got nothing after divorce for it is difficult to enforce in place according to this Interpretation. So, how to guarantee the legitimate rights and interests of both men and women, is currently most worth exploring.Another question is that, according to the provision of Marriage Law Interpretation Ⅲ, for houses without obtaining housing ownership certificates shall not be processed in the divorce proceedings. So, the process of litigation will delay too long with the cost increased, which cause people tired. In this regard, the expect right concept is considered to be lead-in. Look forward to the right to clear the property without a real estate license can be dealt with in divorce proceedings. Unknown looks right, can be dealt with through consultation, or re-litigation if the consultation fails, when the right to be looking forward to clear the two sides. It will save time and litigation resources, which improves the efficiency of the proceedings... |
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