However, if the debt owed by the husband before the divorce belongs to the joint debt of the husband and wife, the husband and wife need to repay it with the joint property at the time of divorce. If the joint property is insufficient to pay off or the property belongs to each other, it shall be settled by mutual agreement. If the agreement fails, the people's court may be requested to make a judgment according to law.
China's Civil Code also clearly stipulates the criteria for determining the joint debts of husband and wife, which are mainly divided into the following three levels:
First, based on the common meaning of husband and wife, the debt incurred is the joint debt of husband and wife. Its manifestation can be joint signing in advance or ratification by one party afterwards. The signing of joint debt can not only protect the interests of the other spouse in the disposal of major family property interests, but also respect their right to know and agree, and also minimize the probability of disputes afterwards. As for the way of ratification afterwards, it can be in written form, or it can be judged by telephone recording, SMS, WeChat, email, etc.
Second, the debt incurred for the needs of daily family life is the joint debt of husband and wife. This kind of debt mainly belongs to the daily family agency category, which is generated in the process of husband and wife living together. Based on marriage, it generally includes normal food and clothing, children's education funds, support for the elderly, medical expenses of family members, etc. For the joint debt of husband and wife, both husband and wife should jointly bear joint liability.
Third, the debt beyond the daily needs of the family, the creditor can not prove that the debt is used for the common life of husband and wife, joint production and operation or based on the common meaning of husband and wife, does not belong to the joint debt of husband and wife. During the marriage relationship, the husband and wife will form other creditor-debtor relationships with the third party, such as large loans, gifts, real estate sales and so on. In addition, there are daily household debts arising from the exercise of daily household agency rights. In order to protect the legitimate rights and interests of the debtor's spouse, the law clearly stipulates that the debt incurred in this case does not belong to the joint debt of husband and wife in principle, except that the creditor can prove that the debt is used for the joint life of husband and wife.
legal ground
People's Republic of China (PRC) Civil Code
Article 1064 Joint Debts of Husband and Wife: Debts that are jointly signed by the husband and wife or ratified by one party afterwards, and debts that one party needs for the daily life of the family in his own name during the marriage relationship are joint debts of husband and wife.
Debts incurred by one spouse in his own name during the marriage relationship that exceed the daily needs of the family are not joint debts of husband and wife; However, the creditor can prove that the debt is used for husband and wife's common life, joint production and operation, or based on the common will of both husband and wife.
Article 1089 The joint debts of husband and wife shall be paid off at the time of divorce by both parties. If the joint property is insufficient to pay off or the property belongs to each other, it shall be paid off by mutual agreement; If the agreement fails, the people's court shall make a judgment.