The Question Of Division Of Mortgage House In Divorce Dispute

How to deal with the mortgage house is a difficult point in judicial practice, our country existing laws and regulations to the mortgage house's division stipulation are blank nearly, consequently, there is important real value to research regarding the treatment of the mortgage house in the divorce dispute. In practice, for the same type mortgage house, some people's court affirms it as personal property, some affirms it as Community property, others affirm the mortgage house as the house of"non-ownership yet", so they only judge the mortgage house's right of use when husbands and wives divorce. This treatment is not in conformity with the Legislation aim of property law decides stops the struggle numerously and turn material resources to good account, nor does the property division principle, which is established by Matrimonial Law, what's more, it goes against the law's Righteousness. The interpretâ…¢of Matrimonial Law (Exposure draft), which is promulgated new, also stipulates specially it, in order to resolve the issue of different judge criterion, when the court divides the mortgage house. This article attempts to solute the division of the mortgage house, specially the division of the mortgage house rose in value before the wedding ,through the discussion which is to the mortgage house's nature and the power. In order to achieve the breakthrough for the former treatment pattern, provide the reference for solving this kind of problem for the judicial practice.The article comprises five parts besides the foreword.The first and second part is the reason and example of the case. The question which exists in the practice could be found, through enumerating the typical case of mortgage house division which often appears in the divorce dispute. It judges mainly who will own the mortgage house and the division problem about its appreciation part. With no unified legal norms, various court make the judgment on the basis of different judge criterion.The third and forth part is dispute focus and dispute issue in practice. This article tries to analysis why it is so difficult to divide the mortgage house in the legislation and judiciary field by summarizing dispute appeared in the course of the mortgage houses the referee. The author hope we can find a breach to solve the problem.The fifth part is research conclusion. First of all, our mortgage system is different from the Anglo-American genealogy of law, it is a new type of guarantee, on this basis, we make the property right in real estate as personal property and community property. Then we argument the appreciation part's legitimacy, which mortgage house belongs to personal property appreciates during marriage exist. After judge the nature of appreciation, its ownership could be divided. In the last , the case in the article would be directed simplely.This paper mainly adopts lists, analogy and case analysis method for demonstration .