On The Treatment Of Mortgage House In Divorce Dispute

With the gradual improvement in living standards and consumption level of Chinese people, people's requirements for housing have been greatly improved. In recent years, the housing price has been soaring, and consumers'pattern of purchasing housing has changed from the traditional one-time payment to the mortgage payment by installments. In divorce disputes, housing purchased by this kind of pattern involves the application of Jus Rerem, Marriage Law, Contract Law, Real Estate Law and so on, and results in the contradiction of connection between department laws. Regarding the division of mortgage house in divorce disputes, the Marriage Law of China has not introduced the judicial interpretation of this issue. Dealing with such issues in accordance with existing legal provisions will still lead to some difficult problems that disturb judicial practice.In addition to the introduction and conclusion, this thesis is divided into five chapters.Chapter one introduces the concept and nature of mortgage house. Firstly, it describes the concepts of mortgage and mortgage house. Mortgage houses in China are mainly mortgage on finished house and mortgage on forward house. Meanwhile, based on the detailed description of procedures of mortgage on finished house and mortgage on forward house, it has identified the nature of buying a house on mortgage.Chapter two mainly discuses the classification and ownership of mortgage house in divorce disputes. According to the purchase time of mortgage houses in divorce disputes, mortgage houses can be divided into mortgage houses purchased before marriage and mortgage houses purchased after marriage. In these two categories, they can be further divided into several sub-categories according to the mortgage house is registered under one side or both sides of the couple, and the time to obtain the property ownership certificate. It also briefly introduces the ownership of various types of mortgage houses and problems encountered in divorce disputes in accordance with provisions of Jus Rerem and Marriage Law.Chapter three mainly discusses the classification and ownership of the added value of mortgage houses in divorce disputes. The added value of mortgage houses in divorce disputes can be divided into added value caused by human factors and added value caused by market factors. The added value caused by human factors is generated by decoration and house rental after marriage, the added value caused by market factors is mainly resulted from the soaring housing price. In the part, the author describes the ownership of added values of mortgage houses caused by different situations in divorce disputes, and put forward problems encountered in judicial practice.Chapter four mainly discusses legal defects of mortgage houses in divorce disputes. Firstly, it describes the contradiction between the real estate registration system and the marital property system. For mortgage houses that are paid by both sides of couple but registered under one side of couple, the author carries out the discussion by raising the theory of fact real rights and legal real rights, and such mortgage houses should be jointly owned by both sides of couple. Secondly, the ownership of mortgage houses with delayed issue of property ownership certificate is also explored. If one side purchased the mortgage house before the marriage and paid the down payment and partial purchase price, the house was registered under the name of the side, and the property ownership certificate of the mortgage house was issued after marriage, then who can own the mortgage house has become the focus of the ownership of mortgage house in divorce disputes. Regarding this problem , courts in China have made different judgments for the same case. The author discusses this issue by analyzing purchase procedures and using the"theory of real right expectancy"in German law, and concludes that although the ownership of the mortgage house is obtained during the existence of marriage, the ownership of such mortgage houses should belong to the side that is registered in the property ownership certificate. In addition, the author discusses the issue that there are no specific legal provisions about the ownership of the added value of mortgage houses. For mortgage houses that belong to one side, the key issue is the ownership of added value caused by market factors during the existence of marriage. Finally, the author explores inaccurate legal provisions, such as the Supreme Court specified that the"mortgage houses that are not paid in full when divorcing"should belong to"houses that the ownership has not been obtained".Chapter five puts forward legislative proposals for problems raised in Chapter Four. Firstly, the author believe that China should improve the registration system for pre-marital properties and property right registration system; secondly, the legislative proposal for the ownership of houses with delayed issue of property ownership certificate is raised; thirdly, relevant recommendations are made for the division of added value of houses in divorce disputes; finally, it introduces the solution to deal with mortgage houses that are not paid in full in divorce disputes.