In this case, it is useless to rely on the initial will.
It can be judged that it is the property of the elderly, but according to the legal inheritance, the base old lady who is the first heir can still get a share.
The following is a case:
Buying a house after marriage does not necessarily belong to the same property, but may also be unique to one party. A lawyer in Xiamen learned that recently, the Haicang District Court broke through the convention and awarded a property purchased after marriage to the man in a divorce lawsuit. The judge said that buying a house after marriage does not necessarily belong to both husband and wife. For example, parents buy real estate for their children, or the funds for buying real estate come from the money for selling old houses before marriage.
After the second marriage, the old man sold his old house and bought a new one.
A lawyer in Xiamen learned that Lao Lin (a pseudonym) was nearly old and divorced his wife more than ten years ago. At that time, the court ruled that the property of a couple in Siming District belonged to Lao Lin personally. After he retired, his monthly pension was more than 2,000 yuan, and he lived a leisurely life. Lili (pseudonym) is 40 years old this year. After the divorce, she went to Xiamen to live with a monthly pension of more than 2,000 yuan. In 2009, Lao Lin met Lili. A year later, they registered to get married. Later, Lao Lin renovated the house in Siming District and sold it for 800,000.
20 1 1 At the beginning of the year, Lao Lin paid 730,000 yuan to buy a house in Haicang, registered the property right in his own name, and successfully obtained the property right certificate.
A second divorce and division of property triggered a fight.
Soon, Lao Lin went to court to sue Lili for divorce on the grounds that the two sides had known each other for a short time, had no emotional foundation and had different personalities. After marriage, I often quarrel because of family chores, and my feelings are completely broken.
Lili said that Lao Lin concealed his real age. After marriage, she found that the difference between them was 19 years old. After marriage, the personality is incompatible and I agree to divorce.
There is no problem with divorce, but how to divide the Haicang house under Lao Lin's name has become the focus.
To this end, the two sides went to court and launched a real estate war in court.
Focus on whether to buy a house after marriage?
Lao Lin said in court that the disputed property should be owned by him personally. He said that the house was bought with his own money and had nothing to do with Lili.
Lili also admitted that she didn't invest in buying a house in Haicang. But she believes that the property purchased after marriage belongs to both husband and wife. Although Haicang's house is registered under Lao Lin's name, it should be "one person and half" when divorced.
In this regard, Lao Lin's lawyer said that the house purchase price of Haicang originated from Lao Lin's sale of houses in Siming District. Therefore, the house in Haicang should be regarded as the transfer and continuation of the house in Siming District, not the property of husband and wife.
Judging that buying a house after marriage is also personal property.
Judge Dai of Haicang District Court analyzed that the house in Siming District belongs to Lao Lin's personal property. Although Lao Lin and Lili renovated the house after their remarriage, the renovation behavior cannot change the ownership of the house. This house still belongs to Lao Lin's personal property.
The judge believes that the purchase price of the house located in Haicang District comes from the house originally located in Siming District, that is, from Lao Lin's personal property before marriage, which should be regarded as the form transfer of Lao Lin's personal property before marriage. Therefore, although Lili spent tens of thousands of yuan on the renovation of this old house, it does not change the ownership nature of the property. The disputed property still belongs to Lao Lin's personal property and should not be recognized as the joint property of husband and wife.
However, the court also ruled that Lao Lin returned Lili's 30 thousand yuan decoration fee.
In four cases, buying a house after marriage is "unique"
When buying a house after marriage, under what circumstances is it owned by * * * and under what circumstances is it owned by individuals?
In response to these problems, the reporter interviewed Huang Jianxiong, a professor at Xiamen University Law School, and Lin Minhui, a lawyer at Fujian Xinhai Law Firm yesterday. They pointed out that, generally speaking, the property purchased after marriage belongs to the joint property of husband and wife, regardless of which side the property is registered. However, there are four exceptions:
1. Parents give property.
Huang Jianxiong said that according to the Supreme People's Court's "About Application"
In addition, after the husband and wife get married, the property determined in the will or gift contract belongs only to the husband or wife, not to the husband and wife.
2. A written agreement between husband and wife
Lin Minhui said that the husband and wife agreed in writing that the property purchased after marriage belongs to one party and is regarded as personal property when divorced.
3. Use pre-marital property to buy a house
Lin Minhui pointed out that the property purchased with personal property before marriage is registered in the name of the investor. But in this case, enough evidence is needed to identify it as the personal property of one spouse. The party claiming personal property must provide sufficient evidence to prove that the purchase price belongs to his personal premarital property payment.
4. paid a down payment before marriage
One of the husband and wife signed a real estate sales contract before marriage, paid the down payment with personal property and borrowed money from the bank. After marriage, the husband and wife use the same property to repay the loan. If the real estate is registered in the name of the down payment person, both parties agree to deal with it at the time of divorce. If no agreement can be reached, the court may decide that the party who owns the property right registration will jointly pay the loan and the value-added part of the property after marriage, and the party who owns the property right registration will compensate the other party at the time of divorce.
Huang Jianxiong pointed out that on the issue of real estate, it is not possible to mechanically take the time when the property ownership certificate is obtained as the standard for dividing the personal property before marriage or the joint property of husband and wife after marriage, otherwise it may be obviously unfair to one party. For example, buying a house before marriage and getting a title certificate after marriage should be considered as unique to one party.
The judge's statement
Prevent the house from being "divided" immediately after marriage.
Judge Dai: Article 17 of China's Marriage Law clearly stipulates that the scope of husband and wife's property includes "(1) wages and bonuses; (2) Income from production and operation; (3) Income from intellectual property rights; (4) Inherited or donated property, except as provided for in Item 3 of Article 18 of this Law; (five) other property that should be owned by * * *.
The legal property system stipulated in the marriage law is the same system of married income for husband and wife. Unless the husband and wife have their own unique property, unless otherwise agreed by the husband and wife, the property acquired by both husband and wife or one of them during the marriage relationship belongs to both husband and wife. Therefore, in judicial practice, the time of obtaining the ownership of a house is usually the fundamental basis for defining whether the property is the joint property of husband and wife or the personal property of one party.
However, our understanding of the marriage law should not stick to the provisions, but also grasp its spirit. Property purchased by husband and wife after marriage cannot be regarded as joint property of husband and wife. If a husband and wife can prove that the source of the purchase price is their personal property before marriage, and the ownership is registered in the name of the individual, then the property should be regarded as the personal property of one party before marriage rather than the joint property of the husband and wife. Otherwise, one party will fall into the strange circle of buying property immediately after marriage with pre-marital property, which will easily lead to a moral crisis in marriage.
In addition, Interpretation III of Marriage Law stipulates: "If the property right of the property purchased by one parent for their children after marriage is registered in the name of the investor's children, it can be regarded as a gift to only one of their children according to the third paragraph of Article 18 of the Marriage Law, and the property should be recognized as the personal property of the husband and wife." This also shows that buying a house after marriage is not necessarily the same property of husband and wife, but also depends on specific issues.
3. Use pre-marital property to buy a house
Lin Minhui pointed out that the property purchased with personal property before marriage is registered in the name of the investor. But in this case, enough evidence is needed to identify it as the personal property of one spouse. The party claiming personal property must provide sufficient evidence to prove that the purchase price belongs to his personal premarital property payment.