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“Love debt”, individual debt or husband and wife commu

(2014-11-06 10:41:43)
标签:

宠物

community

debt

Case brief: (http://rmfyb.chinacourt.org/paper/html/2014-11/05/content_90043.htm

Five years ago, A Lin unmarried, at the age of twenty, got to know Jun Wei, who claimed to be single and the two fell into love soon after. Later, discovering herself pregnant, A Lin pushed Jun Wei to go to home town in Guangxi for marriage registration and after settling down A Lin, Jun Wei got two marriage certificates through a friend with a fake ID card. In March, 2012, A Lin gave birth to a baby boy. However, not long after the birth of the baby boy, A Lin discovered before Jun Wei met her, he had already married with two daughters during the marriage. Jun Wei’s real name was Hao Wei and the marriage certificate she had at hand is fake.

Out of range, A Lin filed a lawsuit court on September 4th, 2013 and on December, 18th of the same year, the court decides that what Hao Wei has done is against social moral, public order & custom and has infringed on A Lin’s independence of personality, freedom, dignity and security. Therefore Hao Wei has fault and shall be liable to pay A Lin compensation in the amount of 150,000 yuan RMB for mental damage.

The lawsuit also puts an end to the official marriage between Hao Wei and his wife A Juan. On October 9th, the same year, A Juan divorced Hao Wei. A Juan got the custody right to the two daughters, the house and Hao Wei got 80,000 yuan RMB compensation for the house purchase.

Meanwhile, A Lin went to court, applying for the enforcement of the judgment which takes effect, granting her 150,000 yuan RMB compensation for mental damage but it turns out that Hao Wei, after the divorce with A Juan, is unable to pay A Lin. A Lin, suspecting that the divorce between Hao Wei and A Juan is for the reason of avoidance of the compensation payment by Hao Wei, applies to the court to add A Juan as an additional person subject to enforcement. The judge for enforcement rejects A Lin’s application. Unsatisfied with the rejection, A Lin files an opposition to enforcement and Fo Shan District Shun De Court dismisses A Lin’s opposition after a hearing is conducted. A Lin, again files an application for reconsideration at Fo Shan Intermediate Court. The Intermediate Court believes after the case review that the 150,000 yuan RMB debt for compensation of mental damage shall be considered as the individual debt of Hao Wei instead of the debt jointly owned by Hao Wei and A Juan, thus shall be paid by Hao Wei only with his own individual assets.

It is true that every penny obtained after marriage will be considered as community asset unless there exists any situation the law specifies. But right goes with responsibility and basically, every debt that occurs during the marriage time will be considered as community debt unless as per the law, there is an agreement between the husband and wife about separation of assets and debts which is known to the outsiders like creditor. Or debt is considered by the court as individual debt as what has happened in the case.

 

In real life, an agreement about the separation of assets and debts between husband and wife is rare and even if nowadays, the prenuptial is becoming popular. Apart from the existence of such an agreement, such an existence has to be known to the creditor. What needs to be known, all the content of the agreement or only the existence of such an agreement remains to be a issue pending for solution through judicial practice.

Actually, when community debt or individual debt is concerned, the judgments are a mess as the burden of proof seems to be unclear. In the past, as long as the creditor proves that a debt the husband or wife owns occurs during the marriage time but this opens the door for the former husband or wife to collide with the creditor to take back the assets that are distributed to the former spouse during the divorce with a fabricated debt or a real debt but not known to the former spouse.

It remains unknown what exact criteria the courts will use to identify individual debt that occurs during the marriage time but from the above case and cases I have handled about debts, there are some rules to follow:

1.     the truthfulness of the debt

An IOU note is far from enough when the truthfulness of the debt is concerned. The debt has to be proved to be true by a competent court’s valid judgment. The courts are quite cautious about private loans and apart from the IOU note the payment, the use of the loan, the repayment of the debt and etc, evidences of which need to be submitted to the court for consideration.

In the above case, the love debt, the compensation in the amount of 150,000 yuan RMB in fact for mental damage is a debt granted by the court’s judgment.

2.     The couple’s assent to the debt

This is of key importance to distinguish between individual debts and community debts.

An IOU with both husband and wife’s signatures is definitely an acknowledgment to the couple.

An IOU with only one party’s signature but payment of which is made to the other party’s account will be in the court’s eye the acknowledgment of the other party whose signature is missing from the IOU.

The true situation in many cases is that there is only one party’s signature on the IOU and the money is paid to such a party’s account only. The other party may has no idea about the existence of such an IOU nor has any contact with the money borrowed and will not know the existence of such a debt only after he or she is listed as a defendant after the divorce. When that happens, the assent from such a party is missing. The court will take look at the use of the borrowed money to deduce whether an assent in fact exists.

3.     The use of the loan

If the use of the borrowed money is for the family expenses, like to pay the mortgage, the child overseas tuition fee, medical bill of the elders and etc. the loan will be considered as the community assets as even if the other party is not aware of the loan, the family in fact benefits from such a loan. Thus an assent in fact from the other party exists.

The intriguing part about the use of the loan is who is responsible for the burden of proof about the use of the loan. The courts are always changing minds in handling this issue.

In the above case, it is not possible for the official wife A Juan to agree to pay such a love debt as such a debt is neither for the family expense nor does she benefit from it. It gives her only endless pain. A Juan definitely is not responsible for her husband’s irresponsible act.

It can be concluded a debt occurs because of one party’s willful act or illegal activity is an individual debt. But questions remain to be solved what about the loan one party borrow to keep his or her company running, which is set up before the marriage but is in operation during the marriage, what about the loan for EMBA owned by the party without benefitting directly to the other party and etc.

Yes, marriage has risks and it is not only assets that can be shared, so are the debts. To protect yourself from unnecessary debt burden, keep a close eye about the changes from the other party, sudden change of band clothes, a new addiction to football gambling, such high credit card consumption and etc. There is no smoke without a fire. So is the debt. It has to be borrowed for something.

 

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