On The Judicial Case Of Premarital Mortgage Division

Over recent years,because the real estate market is overheating persistently,the housing prices keep rising,so more and more young people choose to buy matrimonial houses in the form of mortgage.On the other hand,along with the continuous development of the economic society,there has also been an essential change to the ideas people have on marriage and family.The stability of marriage and family decreases and the divorce rate is on the rise.When the couple loses their mutual affection,which causes an end to their marital relations,more often,this involves issues like the division of property,particularly the ownership of house property and the division of the value-added to the house property.For the division of the ownership of the house bought on mortgage before marriage,Article 78 of the Interpretation of the Supreme People’s Court on Issues Relating to the Application of the Marriage and Family Part of the Civil Code of the People’s Republic of China(I)(the former Interpretation of the Supreme People’s Court on Several Issues Relating to the Application of the Marriage Law of the People’s Republic of China(III)was abolished on January 1st,2021,its relevant contents were included in Article 78 of the Interpretation of the Supreme People’s Court on Issues Relating to the Application of the Marriage and Family Part of the Civil Code of the People’s Republic of China(I)with no further amendment and still are of research significance).This provision has provided a clear guiding opinion on issues relating to “the husband or wife buys a house on mortgage before married”,“the name of the party that pays the initial payment is registered on the property ownership certificate”,“pay back the loan together by the couple after married” and“how to divide the house property after divorce”.However,the corresponding judicial interpretation enacted can not fundamentally solve the issues including the ownership of the house bought on mortgage before the marriage and the division of the value-added,problems still can be found in judicial practice.By combing through and summarizing the data on the judgments of those kind of cases,and also by taking data statistics and analysis into account,as well as by referring to the research findings of relevant scholars,currently,the following problems(relating to property ownership division,ownership of the value-added part and compensation,etc.)were found for house bought on mortgage before marriage: courts at all levels apply the judicial interpretation in a rigid manner,and there appears a trend that the ownership of the house property bought on mortgage before marriage belongs to a fixed party without exceptions;inadequate negotiation principles,the bidding mechanism after failure to reach an agreement has been reduced;the compensation for non-owner party is only limited to the payment used to pay back the loan jointly by the couple after married and the corresponding value-added for that payment,but does not include the value-added for the initial payment and value-added for unpaid part of the loan,hence it is obviously unfair;the calculation of compensation amount has limitations;the compensation for additional expense spent for the house has not taken the loss of opportunity cost,etc.into account;the unpaid part of loan is the personal debt of the registration party of the real estate and the corresponding value-added part belongs to that party.This division is unreasonable;the rights and interests of the wife part,who takes care of children,are not adequately reflected.To fairly safeguard the property rights and interests of both parties in a marriage,concerning the division of the ownership of the house bought on mortgage before marriage and the compensation system for value-added,further improvement with respect to the following aspects should be made: flexible application of judicial interpretation,the rights and interests of the wife part,who takes care of children,should be highlighted,the compensation mechanism in relation to the division of house property bought on mortgage before marriage should be perfected,the protection of the interests of the non-owner party should be strengthened,the reasonable division of the installments and the corresponding value-added,additional expense spent,i.e.decoration and the value-added thereof,the standard of the compensation for house property division after divorce should be clearly specified and detailed;explore and establish the property registration system for couples.