<h1 class="pgc-h-arrow-right" data-track="1" > topic import</h1>
Article 1089 of the Civil Code stipulates that in the event of a divorce between a man and a woman, their joint debts are required to be repaid jointly by both parties. When the joint property of both husband and wife cannot fully pay off the joint debts, or if the property of both husband and wife agrees to belong to each other, the two parties shall first negotiate to confirm how to pay off, and if the negotiation between the two parties fails, the people's court will finally need to determine the specific repayment method. This provision describes how the joint debts of the spouses formed during the original marital relationship after the divorce of the man and the woman shall be paid to the creditors. Whether the joint debts of husband and wife can ultimately be properly handled is not only related to the distribution of the rights and obligations of both men and women after divorce, but also the effective protection of the rights and interests of creditors outside the husband and wife, so how to balance the protection of the legitimate rights and interests of both men and women and creditors is particularly important.
<h1 class="pgc-h-arrow-right" data-track="16" > associated debts</h1>
The joint debts of husband and wife are in essence joint and several debts, and both husband and wife shall bear joint and several liability for repayment to creditors. The joint debts of husband and wife stipulated in article 1064 of the Civil Code can be divided into three types: the first type of joint debt based on the expression of common intention of the husband and wife; the second type of common debt for the daily life of the family; and the third type of joint debt for the joint life of the husband and wife, joint production and operation. Next, the difference between the three different types of joint debt of husband and wife is analyzed:
The key word of the first type of joint debt of husband and wife is "the expression of common intention of husband and wife", which reflects the principle of "joint debt signing", the main purpose of this principle is to remind and guide creditors to form debts, especially relatively large debts, in order to avoid unnecessary disputes in the future, we should strengthen the awareness of risk prevention before the formation of debts, in order to safeguard the legitimate interests of creditors themselves, try to require both husband and wife to sign together. The second type of joint debt of husband and wife refers to the "daily life of the family", that is, daily family affairs, one of the spouses is the legal representative of the other party in handling the daily affairs of the family, which is not only the natural effect of marriage, but also reflects that marriage is a community of conjugal life. The meaning of "husband and wife living together" mentioned in the third type of joint debts of husband and wife is relatively simple and will not be repeated here, but the situation of "joint production and operation of husband and wife" is more complicated, mainly reflected in matters where production and operation are jointly decided by both husband and wife, or matters that have been authorized by the other party although it is decided by one of the husband and wife. In real life, how to judge that production and business activities belong to the joint production and operation of both husband and wife, but also according to the nature of the business activities and the role and status of both husband and wife in the activities.
<h1 class="pgc-h-arrow-right" data-track="17" > judging criteria</h1>
If we conduct an in-depth analysis of the provisions of article 1064 of the Civil Code, it will be found that this provision actually contains two criteria for assessing the joint debts of husband and wife: the first is the joint life of husband and wife, which mainly focuses on the internal relationship between husband and wife. The joint life of husband and wife can be divided into two aspects: within the scope of the family's daily life needs and outside the scope of the family's daily life needs. Debts incurred by one of the spouses in his or her personal capacity for the daily needs of the family are of course joint debts of the spouses, but debts beyond the daily needs of the family are presumed to be personal debts, and if the creditor claims that the debts should be repaid by the joint property of the spouses, the burden of proof is borne by the proof to prove that the purpose of the debt belongs to the joint life of the husband and wife. The second is the joint production and operation of husband and wife, and the standard mainly focuses on the external relationship between husband and wife. The burden of proof to prove whether it is a joint production and operation of the husband and wife also rests with the creditor, and if the creditor is unable to produce evidence or fails to meet the standard of proof, the debt is deemed to be the personal debt of one of the spouses.
In practice, some creditors cannot prove that the debts incurred by one of the spouses are used for the joint life of the husband and wife or the joint production and operation of the husband and wife, but still apply to the court for compulsory enforcement of the joint property of the husband and wife, and the court will also face a dilemma at this time: on the one hand, if the debt is considered to belong to the debt borne by one of the spouses, it may make the joint property of the husband and wife a harbor for evading the debt; On the other hand, if it is considered that the joint property of the spouses should repay the debt, it will have a significant impact on the security of the conjugal community.
<h1 class="pgc-h-arrow-right" data-track="18" > topic summary</h1>
The Interpretation (II) of the Marriage Law equates the joint debts of the husband and wife with the joint and several debts, stipulating that either spouse shall bear joint and several liability for the joint debts during the existence of the marital relationship, and such joint and several liquidation liability will not be transferred because the property of the husband and wife has been clearly divided after divorce, nor will it be extinguished by the death of one of the spouses. The legal relationship formed by marriage has a strong personal attribute for both the man and the woman, and this attribute does not transfer with the transfer of property attributes. If a man and a woman divorce, the two parties may divide their property normally in accordance with the relevant laws and regulations, but in order to protect the legitimate rights of the creditor from being infringed by the change in the marital relationship, the content of the division of the property determined by the parties to the divorce is only valid between the two parties and has no legal effect on the creditor, and the creditor may be jointly and severally liable in accordance with article 178 of the Civil Code: "If two or more persons bear joint and several liability in accordance with the law, the right holder has the right to request that part or all of the jointly and severally responsible person bear responsibility." The provision requires both or one party to pay off all debts.
(Author Zhao Xiaoguang Lawyer)