Divorce Before Marriage Mortgage Property Ownership Research

Since the beginning of the21st century, along with the development of the socialist market economy, people’s consumption concept has undergone great changes, and to mortgage an apartment has become a mainstream way for ordinary people to solve the housing problem. Due to the complexity of the commercial residential building mortgage and the vagueness of the related law, the mortgage property ownership dispute inevitably become a hot topic in the divorce division of property disputes, which at the same gradually becomes a difficult problem of the judicial practice. Through studying relevant commercial residential building mortgage theories and drawing on successful practical experience both at home and abroad,this thesis systematically and comprehensively introduces and analyzes the complicated situation of buying a house on mortgage before marriage and paying off the mortgage loan after marriage with common property, with the purpose of improving the marital property system in China, and providing judicial practice guidance to avoid unfair phenomenon such as treating the same case differently and thus ensuring fairness and justice.In order to solve the mortgage real estate ownership and division problems, the thesis will discuss premarital mortgage property and the ownership of value-added part and then put forward suggestions in order to be helpful to solve such problems, integrating the research results of the domestic and foreign scholars and drawing on common law property nature transformation theory as well as property value-added theory. There is no denying that mortgage real estate after marriage belongs to the jointly owned property, so the theory and practice of community of property ownership, and the division principles will not be discussed. This thesis consists of five parts.The first part, the mortgage property in divorce cases has been dealt with by the study of real cases, i.e., the complex situation of mortgage buyers, the existing defects of legal system, the lack of uniform standards of approaching to judicial practice and other issues, leading to thinking about the premarital mortgage real estate.The second part explores the mortgage system theory by tracing to its source. Before determine the mortgage real estate ownership, we must understand the specific principle of the mortgage sale of real estate, which was originated in the common law, then introduced into our country after a certain degree of variation, and lastly developed into the existing home mortgage and Forward House mortgage. This chapter is devoted to clarify the mortgage buyers involved in the various legal relations and analyze the premarital purchase mortgage real estate type specifically, starting from the content and legal nature of the real estate mortgage system.The third part investigates the division of the premarital mortgage purchased house and its value-added part. Among divorce cases, the mortgage real estate ownership and the division of marital property are difficult and popular points, especially in such cases when the divorced couple have got property ownership certificate of the premarital mortgage purchased house. the Learn from foreign theory of property nature of the transformation and its property-value-added theory, specific analysis of the various circumstances of prenuptial mortgage.Combined with the existing legal provisions and foreign-related theory, the fourth part gives in-depth legal thinking on mortgage housing property ownership, mainly from the convergence of the Marriage Law and Property Law, real estate mortgage of property rights changes and the principle of divorce division of property. Due to the appointed property system the qualitative of premarital mortgage real estate and processing is relatively easy, but taking into account national conditions and current status of traditional marriage and family life marriage property between couples rarely agreed, the author will focus on the application of launching a pre-marital property agreement.The fifth part puts forward several corresponding treatment recommendations on premarital mortgage real estate and its value-added part by firstly pointing out several important factors determining the effects of divorce on the division of mortgage property and the effects of changing the mortgage real estate property owners or the borrowers on the lending bank.