Research On Identification Of Spouses Joint Debt In Divorce Proceedings

As an important part of marital property,the identification of spouses joint debt in divorce proceedings involves not only the legitimate property right of the spouses,but also the legal claims of third parties other than the spouses.Before January 17,2018,there are two rules which identify spouses joint debt in Chinese laws in operation.One is the use rule for common life,established by Article 41 of Marriage Law.The other is the time presumption rule during the period of in which the spouses are under contract of marriage,established by Article 24 of Judicial Interpretation II of Marriage Law.By analyzing the relevant judgment documents about the identification of the spouses joint debt made by the courts in Beijing and Shanghai,the author finds that the time presumption rule is mainly used in judicial practice.The general application of Article 24 of the Judicial Interpretation II of Marriage Law in judicial practice has prevented the couple from maliciously escaping from the debt and harming the legitimate interest of the creditor.However,only because the debt involved occurred during the existence of the marriage relationship,the debt is identified as the spouses joint debt without considering whether the loan has been used for the family’s common life.This has led to a large number of situations in which the non-debtors bear huge debts.Meanwhile,in terms of the burden of proof,Article 24 of the Judicial Interpretation II of Marriage Law provides that non-debtors shall bear the burden of proving the situations in which exclude the application of Article 24.Since the non-debtors are not either of the counterparts of the borrow and loan contracts,the non-debtors are not aware of specific facts about the contracts,so it is almost impossible for them to prove the relevant facts.As a result,the non-debtors have to be in debt innocently.On January 17 th,2018,the Supreme People’s Court issued the Interpretation of the Application of Legal Issues Concerning the Trial of Marriage and Debt Disputes,which has made a new breakthrough in the identification of the spouses joint debt,and substantially abolished Article 24 of Interpretation II of Marriage Law.The four articles respectively establish the couple’s consensual rule,the common life use rule and daily household affairs agency rule,and assign the relevant burden of proof to the creditors,which will greatly reduce the burden of proof of the non-debtors.However,there are no detailed regulations on the daily household affairs agency system,the emergency borrowing rights of the spouses and the burden of proof between the creditors and the debtors.The author considers that,firstly,in the daily household affairs agency system,in addition to perfecting the scope of the daily family agency,the legal consequences of the debtor’s surpassing or abusing of the daily family agency authority should also be clarified.Under this circumstance,the standard whether the creditor is based on reasonable reliance should be used to identify the nature of the debt.Secondly,one of the spouses should be given an urgent right to borrow money,so that the husband or the wife is able to borrow money without delay in emergency circumstances to solve the financial needs of the family.Finally,during the identification of the spouses joint debt,the distribution of the burden of proof between the creditor and the debtor still should return to the rules of distribution of “who advocates and who gives evidence” established in the Civil Procedure Law.