[Brief Introduction to the Case]

The plaintiff Huang and the defendant Zhang registered their marriage on May 21,2014 and lived in Room 910(hereinafter referred to as Room 910)of a garden community after their marriage.Room 910 was purchased by Zhang on December 9,2008 before marriage and registered under Zhang's name.On July 12,2014,Mr.Huang and Mr.Zhang went to a city notary office to notarize the"Application for Alteration of Mortgage Housing Registration"signed by them,which mainly includes:"Bank of China Limited×××"Branch:Due to our marriage,we need to mortgage the property 910 of your bank in December 2008,and apply for the following matters to occur.Change registration:Zhang has voluntarily added Huang as the co owner of the above property...Zhang and Huang have agreed to assume joint repayment responsibilities,and our registration of changes in the above matters is fully legal and voluntary..."On October 9,2014,Mr.Huang filed a lawsuit to the court requesting a divorce from Mr.Zhang,claiming that the 910 room house belongs to the joint property of the husband and wife and should be divided.During the court trial,Zhang agreed to divorce,but believed that the 910 room house belonged to his personal property,and Huang had no right to request a division.The court also found that the market value of the 910 room house was 1.15 million yuan,and the outstanding loan principal was 302932 yuan.

[Focus of Dispute]

1.Whether the"Application for Alteration of Mortgage Housing Registration"belongs to the marital property agreement,that is,whether the 910 room house belongs to the joint property of the husband and wife;2.How should a 910 room house be divided.

[Judgment result]

The court of first instance held that although the 910 room property was purchased by Zhang before marriage and registered in the name of Zhang,after Zhang and Huang were married,they jointly went to the notary office to complete the notarization of the"Mortgage Housing Change Registration Application",which clearly stated:"Zhang voluntarily increased Huang as the co owner of 910 room.".Zhang and Huang,as persons with full civil capacity,voluntarily reached an agreement and notarized the agreement on adding Huang to Zhang as the co owner of the house after their marriage.The agreement is binding on both parties,and both parties should perform according to the agreement.Therefore,the 910 room house should be recognized as the joint property of Zhang and Huang.The defendant Zhang paid the plaintiff Huang a property discount of 420000 yuan within 10 days after the judgment took effect.

After the judgment was pronounced,Zhang refused to accept the judgment and filed an appeal to a city middle court.

After hearing the case,the court of second instance held that the"Application for Alteration of Mortgage Housing Registration"was actually an application for alteration of mortgage housing registration issued to the loan bank.Although the application contained the intention of Zhang to voluntarily add Huang as the co-owner of the house,the application was not a clear agreement between the two parties on the property during the marriage relationship and premarital property,and did not comply with the form of marital property agreement stipulated in the Marriage Law."After the event,both parties have not submitted the application to the loan bank,and the property rights of the 910 room house have not been changed and registered in the real estate department.Therefore,the application alone is not sufficient to identify the parties'explicit and specific agreement on family property.".The court of first instance determined that the 910 room house was the property jointly owned by Zhang and Huang,and the basis was insufficient.The second instance should be corrected.Due to the existence of a bank loan for the 910 room house,Mr.Huang and Mr.Zhang used their joint property to repay the loan after marriage.Mr.Zhang should compensate Mr.Huang for the amount paid and the corresponding value-added portion of their property after marriage.Considering the duration of the marriage relationship between the two parties,the specific repayment amount,and the value added of the house after marriage,it is determined that Zhang will compensate Huang with 20000 yuan.

[Perspectives of all parties]

Before discussing,let me first explain the origin of the"Application for Alteration of Mortgage Housing Registration"in this case.Before the house loan is repaid,if there is a need to add an owner to the house property certificate,there are two ways in practice:one is to repay the loan in advance,when the mortgage on the house property is extinguished,there is no banking barrier;The other is to change the mortgage or loan contract,adding a third person who needs to be named to the mortgagor or borrower in the mortgage or loan contract.When choosing the second approach,it is necessary to submit a mortgage house change registration application to the bank to apply for changes to the mortgage and loan contracts,that is,to add a third party as the co repayment party.Due to the existence of such services in banks,applications are generally formatted applications prepared in advance by banks,requiring only the signature of the property owner and a third person.Some banks will also require the application to be notarized.After the bank agrees to the application,the applicant can register with the Housing Administration Bureau for name addition.

Supporters of the first instance judgment believe that,first of all,the second paragraph of Article 17 of the Marriage Law clearly stipulates that the agreement between the husband and wife on the property acquired during the marriage relationship and premarital property is binding on both parties.The"Application for Alteration of Mortgage Housing Registration"in this case does state that"Zhang voluntarily increased Huang as the co owner of Room 910.".Secondly,the agreement required by Paragraph 1 of Article 17 of the Marriage Law should be in written form.In combination with Article 11 of the Contract Law,written form refers to forms such as contracts,letters,and data messages(including telegrams,telexes,faxes,electronic data interchange,and e-mail)that can tangibly express the content contained therein.Obviously,the Application for Alteration of Mortgage Housing Registration in this case meets the legal requirements.Finally,from the perspective of the reasons for the formation of the"Application for Alteration of Mortgage Housing Registration",its ultimate purpose is also to add Huang as the co owner of the house on the housing property right certificate.

Supporters of the second trial judgment believe that,first,the formal"Application for Alteration of Mortgage Housing Registration"does not conform to the form that a normal marital property agreement should have.Modern houses often run into millions,and agreements made for such a valuable property appear on applications sent to third parties,which are neither prudent nor consistent with normal practice.Secondly,the content of the agreement is too simple.The full text of the application contains only one sentence of the property agreement:"Zhang volunteered to add Huang as the co owner of the above property."That is,it is generally agreed that Huang is the co owner of the property.In other words,neither the type of co ownership nor the value of the pre marital and post marital housing are distinguished.Failure to meet the requirements of Article 19 of the Marriage Law is clear and specific,and the agreement is unclear.The ownership of a 910 room house should be directly applicable to the provisions of Articles 17 and 18 of the Marriage Law and Article 10 of the Interpretation 3 of the Marriage Law.Thirdly,the application was not submitted to the bank and the property right of the house was not subject to change registration,which also indicates that the plaintiff and the defendant did not actually reach an agreement.If they reached an agreement,why did they not submit the application to the bank and apply for changing the mortgage and loan contract.

The author prefers the judgment of the court of second instance for the following reasons:

1."There is indeed an agreement on the ownership of Room 910 in the Application for Alteration of Mortgage Housing Registration,but no one can deny that the application was never drafted by the plaintiff and the defendant to reach a marital property agreement,but rather a general format document generated during the process of preparing for the registration of alteration of housing property rights.".

Those who support the judgment of the court of first instance are always evading this point,seizing only one sentence in the application and ignoring the source of the application itself.As described above,in practice,it is troublesome to change the owner of a mortgaged house.First,you need to apply to the bank,then change the mortgage and loan contract,and finally go to the real estate department to change the registration.At the same time,it can be seen that all activities before the change of registration are only preparatory work,and the application form is only the format text provided by the bank.In other words,if the original format text provided by the bank did not contain the sentence"Zhang volunteered to add Huang as the co owner of Room 910",Huang and Zhang would also sign.Because the application never comes is not the key point,it is just a process,and the key point is to be able to register changes in the future.Of course,if things go smoothly,there will naturally be no disputes in this case,but the problem is not only that the registration has not been changed,but even the application has not been submitted to the bank.At this point,the application,as a separate text,has no meaning.At most,it can only be stated that the plaintiff and defendant were preparing to register changes to the 910 room house.

2.The marital property agreement system stipulated in Article 17 of the Marriage Law is a breakthrough in the real estate ownership registration principle stipulated in the Property Law.Therefore,it is necessary to adopt a stricter review of marital property agreements,otherwise it may easily lead to confusion in practice.

In China's marriage law,there is only Article 19 of the marital property agreement system.In practice,there have also been discussions about whether it is necessary to change the registration of immovable property if immovable property is involved in the marital property agreement.On this issue,the Supreme Court expressed its views in the case of Tang Mou v.Zhang Mou and Tang Mou B over the legal inheritance dispute in the 2014 12th issue of the Supreme People's Court Gazette.According to the Official Gazette,when disputes arise over the ownership of real estate jointly acquired by couples after marriage,a comprehensive judgment should be made based on factors such as whether the cause of the change in real estate property is effective,whether there is any involvement in the interests of a third party,and it is not appropriate to use property registration as the sole basis for determining the ownership of real estate,as long as there is sufficient evidence to determine the ownership status of the real estate and does not involve the interests of a third party,"It is necessary to respect the true expression of intention between husband and wife,perform in accordance with the marital property division agreement reached by both parties,and give priority to the protection of de facto property owners.".It can be seen that the attitude of the"Official Gazette"is prudent.The prerequisite for giving priority to the protection of factual property owners is not to involve the interests of third parties,and there must be sufficient evidence to prove the status of real estate ownership.

Article 9 of the Property Law stipulates that the establishment,alteration,transfer,and extinction of real property rights shall take effect upon registration in accordance with the law;"Without registration,it shall not have any effect,except as otherwise provided by law.".Article 28 of the Law lists some cases where there are other provisions in the law,that is,if the creation,alteration,transfer,or extinction of a real right is caused by legal documents of a people's court,arbitration commission,or expropriation decisions of the people's government,etc.,it shall take effect from the time the legal documents or expropriation decisions of the people's government become effective.As an exception to official legal documents that can be equally enforceable,marital property agreements should naturally be subject to stricter scrutiny.In connection with this case,if the nature of the application and the reasons for its formation were not strictly analyzed and reviewed on the basis of the overall case,it would be rash to identify some of the sentences intercepted as marital property agreements regarding the ownership of the 910 room house.

Conclusion

According to the theory of the burden of proof,the party claiming a change in legal relations should bear the burden of proof for the basic facts of the change in legal relations.In this case,Room 910 was registered in the name of Zhang.By providing a property certificate,Zhang has completed the proof of ownership of Room 910.At this time,Huang claimed that he was the co owner of the house,and naturally should bear the burden of proving the basic facts that led to the change of the owner.The basic fact that Huang claimed was that he and Zhang had made a clear agreement on the ownership of Room 910,and the evidence he provided was the"Application for Change of Mortgage Housing Registration".According to the above analysis,the application is not a marital property agreement in nature,and is only a formal document without other evidence to support it.The proof of the facts to be proved does not meet the legal standards of proof,and ultimately Huang can only bear the adverse consequences of providing evidence.

In fact,if the Plaintiff and the Defendant in this case had signed a clear property agreement in advance,or if there was no agreement,but the house had been changed and registered,there would be nothing to discuss in this case.It is because there is only ambiguous evidence such as the"Application for Alteration of Mortgage House Registration",which leads to a significant controversy in the judgment of this case.At the same time,this also reflects that China's current marriage law on the marital agreed property system is too simple.

[Relevant laws and regulations]

Article 19 of the Marriage Law of the People's Republic of China

The husband and wife may agree that the property acquired during the duration of the marriage relationship and the premarital property shall belong to each other,jointly owned,or partially owned or partially jointly owned.The agreement shall be in writing."If there is no agreement or the agreement is unclear,the provisions of Articles 17 and 18 of this Law shall apply.".

The agreement between a husband and wife on the property acquired during the duration of their marriage relationship and the premarital property shall be binding on both parties.

"If a husband and wife agree that the property acquired during the duration of their marriage relationship shall belong to each other,and if a third party is aware of the agreement,the debt owed by the husband or wife to the other party shall be paid off with the property owned by the husband or wife.".

[Note:This article is reproduced on WeChat official account"Gaoshan LEGAL"]

(This article is translated by software translator for reference only.)