When couples divorce, some couples will consider selling the property under their names in order not to have property disputes, and half of the proceeds will be used for division. But if the divorced property has been mortgaged, can it still be sold? Can the divorced couple's property be mortgaged for sale? This problem is also a problem that most people are very concerned about, because it is related to everyone's vital interests. Let me explain it to you below.
1. Can a divorced couple's property be mortgaged for sale?
1. During the mortgage period, if the seller (mortgagor) transfers the mortgaged house without the consent of the mortgagee, the validity of the house sales contract will not be affected.
2. Upon the expiration of the performance period agreed in the contract, the seller fails to fulfill the obligation to eliminate the mortgage, which makes it impossible for the buyer to register the transfer of house ownership. If the buyer requests to terminate the contract and requires the seller to bear the corresponding liability for breach of contract, it shall be supported;
3. After the expiration of the performance period agreed in the contract, the seller still fails to fulfill the obligation to eliminate the mortgage right, which leads to the buyer's inability to register the transfer of the ownership of the house. If the buyer requests to continue to perform the contract and register the transfer of the ownership of the house, and still insists on not changing it after the court explains it, the lawsuit request will not be supported, except that the buyer agrees to pay off the debt and eliminate the mortgage right on his behalf.
4. The court may consult the opinions of the mortgagee according to the specific circumstances of the case, and may add the mortgagee to participate in the litigation as a third party without independent claim when necessary.
So after the divorce, if the property has been mortgaged, one party can still sell the property. If it is a bona fide third party, the sales contract is valid. However, if the property is mortgaged, it will lead to the inability to register the transfer. At this time, the buyer can ask the seller to bear the liability for breach of contract.
Second, what is the principle of divorce property division between husband and wife?
1, the principle of equality between men and women
This principle is embodied in the division of divorce property, that is, husband and wife have the right to share the same property equally and bear the same debt equally.
2. The principle of taking care of the interests of children and women
The "care" here can not only give the woman extra points in the share of property, but also allocate the property that is particularly needed in a certain life, such as housing, to the woman in the type of property. At the same time, when dividing the marital property, special attention should be paid to protecting the legitimate property rights and interests of minors. The legal property of minors cannot be divided into marital property.
3, beneficial to life, the principle of convenient life
When divorce is divided, the utility, performance and economic value of the same property shall not be damaged. When dividing the means of production in the same property, it should be allocated to the party that needs the means of production and can better play the role of the means of production.
When dividing * * * from the living materials in the property, we should try our best to meet the needs of individuals engaged in professional or professional work, so as to give full play to the use value of the property. The indispensable items shall be owned by one party according to the principle of actual needs and beneficial use, and the co-owners shall compensate the other party according to the principle of fairness and the actual value at the time of divorce.
4, the principle of compensation
According to the provisions of Article 40 of the Marriage Law, "if one party does more obligations to raise children, take care of the elderly and assist the other party in work, it has the right to demand compensation from the other party at the time of divorce, and the other party shall make compensation."
This provision means that when the marital property is divided according to law, one party who has fulfilled more obligations can claim compensation from the other party. The compensation shall be paid from the divided property, and if the divided property is insufficient, it shall be supplemented from his personal property.
5, the principle of taking care of the innocent party
It means that when one party is at fault, the divorce property is divided for the sake of taking care of the innocent party and the property is divided for the innocent party. This principle is different according to the actual operation in different regions, and there is no clear conclusion. Mainly depends on whether the judge recognizes this division standard.
Therefore, the mortgaged property of divorced couples can still be used for sale. The mortgage of real estate does not affect the validity of the house sales contract. As long as the house sales contract is true, then the contract is valid. However, because the property has been mortgaged, it will be impossible to transfer the ownership of the house, so the seller may have to bear the corresponding liability for breach of contract to the buyer.