The Research On The Ownership And Division Of The Mortgage Housing Property In A Divorce Case

In a property dispute of a divorce case, the disposal of the mortgage housing property has already become a heatedly-discussed issue. Due to the insufficiency of current legislature and the conflict of different ideas, this heatedly-discussed issue has posed great challenges in the judicial practice. Subsequently, a series of inevitable controversies emerge while the ownership and the division of the mortgage housing property are being handled. As a matter of fact, the ownership and the division of the mortgage housing property is a comprehensive legal issue in that it involves numerous laws such as Marriage Law, Property law, Law of the People's Republic of China on Administration of the Real Estate and Contract Law. The fact that conflicts exist in different legal systems and the Marriage Law fails to provide a clear-cut legal explanation concerning this issue adds more complexities to this issue proper. Therefore, it is of both theoretical and practical significance to conduct a research on deciding the ownership and dividing the mortgage housing property.Different types of mortgage are involved in disputes over mortgage housing property. However, the most complex one to deal with rests on the following type: one party of the marriage obtains the housing property certificate in the time of divorce after buying the housing property with the down payment in his own name on a mortgage basis. In consideration of the typicality of the type of mortgage housing property and the length of this thesis, the author may only refers to this particular type of mortgage housing property.The thesis consists of three chapters besides prologue and the concluding remarks.Chapter one will be the general statement. A brief explanation of the basic concept of mortgage housing property is followed by the analysis of the status-quo of handling the ownership and division of mortgage housing property as well as the reasons behind. A typical case study will be made to further explain the major problems existing in this kind of property disputes.Chapter Two is the theoretical analysis of three major questions concerning the ownership and division of the mortgage housing property in a divorce case. The first question which is also the premise of handling this kind of property dispute is whether the mortgage housing property still with bank loans to clear can be divided. The second question is whether the mortgage housing property is a community property or a personal property. Concerning the second question, the author has come up with her own observations based on the analysis and argument after elaborating on the currently-held five different ideas. The third question relates to the nature of the added value of the mortgage housing property and its ownership.Chapter Three'is on the division of the mortgage housing property in a divorce case. The principles and the means of dividing the mortgage housing property are discussed on the basis of Chapter Two. The author holds that four principles should be observed, among which the equity principle is of more importance. As for the means of dividing the mortgage housing property, the author contends that a reasonable means should be adopted in considering whether the mortgage housing property is jointly-owned or personally-owned.