| Some scholars believe that divorce causes the breakup of marriage, but it doesn’taffect the value of the house. In other words, the dissolution of the marriage not onlyfails to reduce their demand of houses, but rather increases the housingdemand.Therefore,both sides attach great importance to the problem of propertydivision in divorce proceedings.With house prices soaring,the ways of purchasinghouses and types of houses have become increasingly complex.This makes theproperty division in divorce proceedings into a hot spot and difficulty.The thirdjudicial interpretation of Marriage Law was enacted in controversies of all sectors.Tosome extent,the enacting of it not only fails to quell the existing controversy, butrather make some controversies more intense.Therefore, it’s urgent to develop areasonable solution to the practice of property dispute, to improve the the currentlaw, and to fill the relevant legal gaps.This paper mainly for two of the most intense controversies, the division ofpremarital mortgage house and the houses purchased by parents for their children,andproposing specific solutions.The division will be relatively easy in divorceproceedings if a previous engagement has been made before. In practice,more disputes occurred in the legal property system. With this in mind, this paper presentsthe research mainly based on house division occurred in the legal property system.Apart from the introduction and the postscript, this paper comprises of threechapters.Chapter I provides a brief introduction of two particularly controversial propertytypes in divorce.And then analyzes two actual cases which lead to the issues to bediscussed in this paper.By analyzing the cases,this paper lists some of the issues thatremains controversial in the process of dividing both property types.Chapter II mainly discusses the division for premarital mortgage house.First it ispointed out that the difficulties in the judicial practice are existed when one partypurchased a mortgage house before marriage,to pay a down payment,repay themortgage payments with joint property,and the property rights was registered in theparty who pay the down payment.Section I points out several factors we needs toconsider to determine the ownership of such properties,and analyzes the necessity andrationality of these factors one by one.Section II is the core of this chapter.It focuseson discussing the nature of the housing value-added part and how to divide themortgage-house and its value-added part.After the discussion, the author proposes aspecific method of calculating the amount of compensation.In addition,this sectionalso discusses the problem of property’s devaluation,for this is a legal gap in the thirdjudicial interpretation of Marriage Law.Section III proposes several suggestionsaccording to the legal gaps existed in the Marriage Law and its judicialinterpretations.In Chapter III,the nature of parents financed part has been discussed as a startingpoint,so have the different solutions and the burden of proof when it is different innature.Section II and Section III separately analyze the situations that one part’sparents funded for their child to purchase a house and both part’s parents funded for their children to purchase a house.This part focuses on parents funded based on thegift meant for their children.This chapter made a detailed classification on everysituation when parents funded for their children to purchase a house.It introducesthe views and comments of all walks of life to these situations, and then provides theauthor’s views. |
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