On The Division Of Mortgage House Before Marriage In Divorce Proceedings

In August 2011,the supreme people’s court issued an explanation on several issues concerning the marriage law of the People’s Republic of China(Ⅲ).Stipulated in article 10:"Where one party in the marriage has signed a real estate purchase contract before marriage,pays the down payment with his/her personal property,takes a loan from the bank,repays the bank mortgage with the community property of both parties after marriage and registers the real estate under the name of the payer of down payment,both parties shall dispose of the real estate by mutual agreement at the time of divorce.Where both parties fail to reach an agreement based on the preceding paragraph,the people’s court may rule that such real estate vests in the party under whose name the real estate is registered and the loan outstanding thereof shall be the personal debt of such party.In respect of the loan repayment jointly paid by both parties after marriage and the corresponding property increment of the real estate,the party under whose name the real estate is registered shall make compensation to the other party at the time of divorce in accordance with the principle specified in Paragraph 1 of Article 39 of the Marriage Law of the People’s Republic of China," This provision provides a realistic legal basis for the definition of the property rights of the mortgaged property in the divorce case and the division of the value of the building value.However,in judicial practice,some courts have not comprehensive understanding of this article,resulting in a very different result.At the same time,the current legal provisions in our country are not perfect and can not completely solve the complex situations encountered.To this end,this paper intends to analyze and summarize the real problems in the controversial part of such cases,focuses on the nature of the building,housing values change parts,clarify the legal relationship,and puts forward the solution.This paper considers that the nature of such housing ownership is the application of the marital property system.In the case of pre-marital housing separation,the judge needs to consider various judicial factors to coordinate the conflict between the ethics of marriage relationship in divorce cases and the fairness of marital property division.The author proposes that the calculation method of the partial division of the housing value change should be unified;How to share the depreciation of houses;to clarify the division and exception handling of pre-marital mortgage houses without obtaining all the warrants of the house;we will promote the improvement of the compensation guarantee mechanism for housing division.Thus the contradiction between the ethics of marriage relationship and the utility of marriage in divorce cases is resolved to the greatest extent.