After the dissolution of marriage, if there are still fixed assets undivided, it is relatively easy to find and verify. However, assets with strong liquidity, such as bank deposits, are difficult to be found, and the parties have no power to investigate and collect evidence. They often need to rely on the court to investigate the bank. Once verified, the criteria for identifying the common property of husband and wife are basically the same as those identified in general divorce cases.
Case study
Li and Wu registered marriage on July 6,1993, and gave birth to a daughter Wu Mouting during the relationship between husband and wife. On December 19,2012, Li and Wu registered for divorce at the marriage registration office. After the divorce, Li considered that there was still a couple 's joint property pending, so he filed a lawsuit on January 21,2013.On the grounds that he found that there was still a hidden couple 's joint property pending in the Zhongshan City Land and Housing Authority, he requested a decree : 1.Wu paid 500,000 yuan for the division of marital property ; 2.the litigation cost of this case is borne by Wu.
After the court trial, it was found that on September 9,2010, Wu signed a purchase contract with the real estate company, purchased 1002 houses, the total price of the house was 647638 yuan, the down payment was 259638 yuan, and the bank mortgage loan was 388,000 yuan ( lender Wu ). On July 10,2012, the real estate certificate was processed, and the property right was Wu. By December 19,2012, when Li and Wu divorced, the house had repaid the principal and interest to the bank for a total of 121444.46 yuan.
During the trial, Li clearly demanded that the initial payment of the above property and the principal and interest of the bank repaid before the divorce be divided.
During the trial, Li applied to the court of first instance to inquire about Wu 's account deposit. After inquiry, Wu 's account at ICBC expired on October 10,2012 and was transferred to 368805.70 yuan. The balance of the account was 1338.95 yuan on December 18,2012. Wu 's Agricultural Bank account on December 17,2012 balance of 70733.22 yuan, a total of 440877.87 yuan. In addition, from 2007 to 2009, Mr. Li successively withdrew 480,000 yuan in cash in the name of ' reserve fund '.
The above property and payment were not processed in the divorce agreement of December 19, 2012.
Court of first instance : the first people 's court of zhongshan city, guangdong province, case number : ( 2013 ) zhongyifaminyichuzi No.360 ;
Court of second instance : Zhongshan Intermediate People 's Court, Case No. : ( 2014 ) No. 319.
Court decision
Focus 1 : During the existence of the relationship between husband and wife, the purchase of the house should be jointly owned by the husband and wife.
The court of first instance held that the 1002 house was purchased by Li and Wu during the relationship between the husband and wife, and should be jointly owned by the husband and wife. Wu 's defense real estate was purchased with the cash he received and was his personal property. The defense reason has no legal basis and the court of first instance will not adopt it.
In addition, Wu 's bank deposit of 440877.87 yuan was not dealt with in the divorce agreement. The amount was the property of Li and Wu during the existence of the relationship between the husband and wife, which should be owned by the husband and wife. Wu said that the reason for the defense of the company 's payment was insufficient evidence, and the court of first instance did not adopt it.
As for the 480,000 yuan of cash withdrawn by Li, Li 's argument that the money was all used in daily life was not justified and was not accepted by the court of first instance.
Focus 2 : The common property of the husband and wife that is not dealt with in the divorce agreement, one party may request the division after the divorce.
To sum up, Li claims 1002 rooms, Wu 's bank deposits of 440877.87 yuan, Wu claims that Li 's extraction of 480,000 yuan is a common property of husband and wife, fully justified. Because the above real estate and money were not dealt with in the divorce agreement between the two parties, the parties requested to be divided and the court of first instance supported it.
Li 's request for the division of 1002 room has been paid before the divorce of the first installment and has been returned to the bank principal and interest of a total of 381082.46 yuan, so Wu 's payment of property compensation of 190541.23 yuan to Li, 1002 room ownership to Wu ; wu 's payable bank deposit of 220438.94 yuan to Li 's ; li 's cash withdrawal of 480,000 yuan in Qingyu Commercial Bank should be paid half of the 240,000 yuan to Wu. The above two comparisons, Wu should pay the property division of 170980.17 yuan to Li.
After the judgment of the first instance, Wu and Li both appealed.
Focus 3 : Large expenditure during the relationship between husband and wife, if not provide evidence to make a reasonable explanation, the court will be divided as the common property of husband and wife.
After investigation, according to the check stub submitted by Wu, the withdrawal time occurred between 2007 and 2009. The payee was marked as ' Tsinghua ' or ' Qingyu ', and the use was marked as ' reserve gold ', ' reserve ', ' reserve New Year ', ' pay tuition ', etc. Some of the check stubs also indicate additional information such as ' one part payment ', ' Banfu tax ', ' Hengji shop ', etc. In this regard, the court of second instance held that Li 's withdrawal time was during the existence of the relationship between husband and wife. Before the two parties agreed to divorce for 3 years, they could reasonably explain the use of the money, and during the existence of the relationship between husband and wife, one of the husband and wife should be presumed to have obtained the permission of the other party to dispose of the common property. Mr. Wu denied it, but he could not prove that Mr. Li 's behavior harmed the common interests of the couple, and the use of the money had nothing to do with the couple 's common life, so the court did not confirm Mr. Wu 's claim. It is believed that Li 's lawsuit claims that the above funds have been used for the common life of husband and wife, and are inseparable from the common property of husband and wife that has been identified and processed in other divorce agreements, and should not be identified as Li 's private disposal of property. Therefore, the 480,000 yuan is not the joint property of the husband and wife that has been omitted, and Li does not need to return 240,000 yuan to Wu.
The 1002 houses involved in the case were purchased during the relationship between Li and Wu.According to the relevant provisions of China 's marriage law, the real estate belongs to the common property of husband and wife. The divorce agreement did not deal with Room 1002, so Li advocated the division of the first housing payment paid by Wu and the principal and interest of the paid mortgage, which was based on sufficient basis. Wu 's bank deposit of 440877.87 yuan was also not processed in the divorce agreement, which should be jointly owned by Li and Wu according to law.
Attorney Insights
In this case, Li found that Wu purchased a set of real estate with the joint property of husband and wife during the marriage relationship, and repaid the loan with the joint property of husband and wife. Because the house and the repayment part were not dealt with when the two parties divorced, the court accepted the case according to law.
After the case was filed, the court investigated the bank 's running water under the name of Wu according to Li 's request, and found that the two sides still had undivided deposits during the marriage relationship, which was dealt with in this case. If the case is only the division of fixed assets, there is no special place. The special place is that the case is based on the division of fixed assets at the time of filing, and then through the court 's transfer found more undivided husband and wife common property.
In this case, if Li did not find that Wu bought real estate during the existence of the marriage relationship, and did not grasp the specific property that was not divided, he only said that there was still a balance in Wu 's bank account that was not divided, and asked for the investigation of Wu 's bank flow and asked the court to accept the case. According to the author 's experience, it is difficult for the court to accept the case. Therefore, if it is really necessary to divide the deposits in the bank account, and there is no way to start, whether it is possible to let the court file a case through other situations mentioned above, and then submit an application for investigation to the court to find out the amount of the undivided bank account.
In addition, in this case, the court recovers the deposits during the existence of the marriage relationship after the divorce, and the time of determination is the balance shown in the account before the date of divorce. In this case, because the deposit was not processed at the time of the divorce, it is relatively easy to determine that the balance as of the day of divorce is undivided. In practice, if at the time of divorce, the deposits and transfer funds of other accounts have been divided, are the balances of these undivided bank accounts partly derived from the transferred funds divided at the time of divorce ? In practice, this involves the problem of whether the segmentation will be repeated.
Finally, in property disputes after divorce, the court will also examine unreasonable withdrawals during the existence of the marriage relationship. In this case, in the first instance, Li failed to prove that the 480,000 yuan of the withdrawal had been used for family life. Therefore, the court considered that the 480,000 yuan taken out by Li was the joint property of the husband and wife and should also be divided. However, after reviewing the evidence submitted by Li, the court of second instance believed that Li had made a reasonable explanation for the use of the money, and concluded that the money had been used for the daily expenses of the family and did not need to be divided. Therefore, in the daily transaction transfer, especially the larger amount of transaction transfer, it is necessary to have evidence awareness, pay attention to the corresponding use of the memorandum, and avoid disputes.