The Marriage Law stipulates that the property acquired during the existence of the marital relationship belongs to both husband and wife, provided that it can be applied only if there is no agreement between the two parties, that is, if there is an agreement between the two parties on property, the agreement between the two parties should be applied first. Only when there is no agreement or the agreement is invalid can the provisions of the law be applied.
Therefore, whether the house purchased after marriage belongs to one party's personal property or the joint property of husband and wife, the property right of the house can be agreed. This principle of "agreement takes precedence over law" in the process of property disposal can fully reflect the respect of the law for the autonomy of the parties. In the process of agreement, we should pay attention to the following issues:
1, the house agreed to be disposed of must be the joint property of husband and wife, and other family members' houses or family-owned houses shall not be disposed of without authorization. Otherwise, if the interests of the third party are harmed, the act is invalid.
2. Both parties to the agreement must have full capacity for civil conduct and the intention is true, that is, the agreement is a choice made by both parties voluntarily and equally.
3. The agreement must be legal and not harm the interests of the state, the collective and the third party, and it must be in written form, and the oral agreement is invalid. Finally, it is agreed that it is best to be notarized, and the parties do not need to prove the validity of the notarized house property rights agreement.
Extended data
According to the data released by the Ministry of Civil Affairs, the divorce rate in China has been on the rise for eight consecutive years, with a total of 2.388 million couples divorced in 20 12. In divorce cases, real estate disputes are often the core of the case.
Mr. Dong and Ms. Wang in Beijing bought a house after establishing a love relationship before marriage. Mr. Dong paid the down payment to Ms. Wang in the form of transfer and cash, and Ms. Wang signed the house purchase contract and settled the house payment in her own name. After marriage, the two paid the loan together.
20 1 1 At the beginning of the year, Ms. Wang sued for divorce, claiming that the house was her personal property. Mr. Dong thinks that he is the actual investor of the house, and the house should be owned by both parties. Ms. Wang thinks that the money transferred to her by Mr. Dong is a bride price and has not actually been used to buy a house.
In late February of this year, the court ruled that they jointly invested in buying a house for the purpose of marriage, and determined that the house was the joint property of husband and wife, and the house was owned by Ms. Wang, but nearly half of the house discount should be paid to Mr. Dong.
The same is to buy a house for the purpose of marriage, and the house is settled in the woman's name, but the result is different. In order to get married, Mr. Li from Beijing contributed 420,000 yuan, and Ms. Ding contributed 654.38+10,000 yuan to pay the down payment of the house, and settled the house in Ms. Ding's name, which was repaid together after marriage.
On March 20 12, Ms. ding sued the court for divorce, arguing that the house was registered in a personal name, which was a house purchase contract signed before marriage, and the house should be her personal property. Mr. Li thinks that he has paid most of the down payment and most of the follow-up expenses. Judging from the capital contribution, he is the owner of the house, at least the property right of the house should be owned by * * *.
The case was finally settled by mediation presided by the court, and the house was owned by Ms. Ding, who paid Mr. Li the investment before marriage, part of the loan after marriage and the corresponding value-added money.
The provisions of Article 10 of Judicial Interpretation III apply to the above two cases: Case 2 is the general practice of grass-roots courts to deal with such problems at present, taking registration as an important reference standard from the perspective of property law, and finally determining that property belongs to individuals; In the first case, considering the particularity of marital status, the property was identified, which led to different judgments in the same case.
In fact, this phenomenon existed before the promulgation of Judicial Interpretation III. Sun Ruojun, executive director of china law society Marriage and Family Law Research Association and associate professor of China Renmin University, explained that "one of the purposes of Judicial Interpretation III is to unify judicial decisions and avoid different judgments in the same case."
However, after the implementation of Judicial Interpretation III, there is still great controversy. Many people believe that the provisions of Judicial Interpretation III on the property agreement between husband and wife and the property right of pre-marital mortgage house have, to a certain extent, impacted the traditional custom of one spouse buying a house and the couple divorcing, and even intensified the contradiction of divorce property division.
Judicial Interpretation III itself is not legislation, but the Supreme People's Court's interpretation of the relevant provisions of the Marriage Law in order to solve the prominent contradictions in real life.
Yang Xiaolin, a lawyer specializing in marriage and family affairs at Beijing Yuecheng Law Firm, said, "Our laws are usually abstract. Several real estate clauses closely related to the lives of ordinary people in Judicial Interpretation III are too general and do not cover common situations in real life, which leads to different opinions among scholars, judges and lawyers. "
China's current marriage law was revised in 200 1 year, while the property law was promulgated in 2007. In judicial practice, when there is a conflict between marriage law, property law and contract law, which one should be applied first? Judicial interpretation 3 did not answer this question.
In the field of law, there are two schools of thought: many civil jurists think that marital status is not special, and dealing with property disputes between husband and wife is similar to dealing with property disputes between general civil subjects, so property law and contract law can be applied; However, most marriage jurists believe that marriage has a special status and the application of marriage law should be considered first.
Ma Yinan, deputy director of Peking University Women's Studies Center and professor of Peking University, said: "Marriage is special. When dealing with marital property disputes, the property law and contract law cannot be applied mechanically. It is necessary to fully consider the particularity of marriage and appropriately tilt to the woman. "
Sun Ruojun also believes that "in terms of law application, the marriage law is a special law, and the property law and contract law are common laws. When there is a conflict between special law and common law, special law is superior to common law. "
Wang Liren, a judge of the Intermediate People's Court of Yichang City, Hubei Province, who is engaged in the trial of marriage cases, said, "The legal property of husband and wife stipulated in the current marriage law of our country is based on the principle of * *, except for individual agreements. Article 7 of Judicial Interpretation III is just the opposite.
According to this article, the house purchased by parents for their children after marriage is the personal property of each child. If there is no agreement, it shall be occupied in proportion to the capital contribution. Because of contradictions, judges often have their own value judgments when applying the law. Some insist on the application of marriage law, while others apply judicial interpretation III, which leads to different judgments in the same case. "
In his view, the third judicial interpretation failed to properly handle the relationship between marital property with status and general property, and completely applied the principle of general property law to marital property, which led to the absolute separation of marital status and marital property, complicated marital property disputes and made it difficult for judges to grasp.
Yang Xiaolin said, "In the two years since the implementation of Judicial Interpretation III, there have been two extremes in the handling of divorced real estate issues in judicial trial practice: First, the real estate registration is absolute, that is, no matter how the capital is contributed, whoever registers will own the real estate; The second is the absoluteness of capital contribution, that is, no matter whose name the real estate is registered in, whoever contributes will own the real estate. "
Reference: People's Network? Divorce, divide property. Who should the house belong to?