The identification and treatment of joint debt between husband and wife is a difficult problem in divorce cases. The revised "Marriage Law" has made explicit provisions on this, so what are the other legal provisions on the identification standard of joint debt between husband and wife in China? Here are some answers for you.

1. Repayment of joint debts


Marriage Law Article 41 At the time of divorce, the debts originally incurred by the husband and wife for their joint life shall be paid together. If the common property is insufficient to pay off, or the property belongs to each other, the two parties shall agree to pay off; If an agreement fails, the people's court shall make a judgment.

2. Common debts under the property system

Article 19 Husband and wife may agree that the property acquired during the duration of the marriage relationship and the property before marriage shall be owned separately, jointly, or partly separately or partly jointly. The agreement shall be in writing. Where there is no agreement or the agreement is not clear, the provisions of Articles 17 and 18 of this Law shall apply.

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

If the husband and wife agree that the property acquired during the duration of the marriage relationship will be owned by each other, the debts incurred by the husband or wife to the outside world, if the third party is aware of the agreement, shall be paid off with the property owned by the husband or wife.

"Some Specific Opinions of the Supreme People's Court on Handling the Division of Property in Divorce Cases" (November 3, 1993)

3. Identification of joint debts between husband and wife

1, the husband and wife jointly signed or one of the husband and wife after the ratification of the joint intention to bear the debt, shall be identified as the husband and wife joint debt.

(2) If one of the spouses has incurred debts in his personal name for the daily life needs of the family during the duration of the marriage relationship, the creditor claims rights on the grounds that they are joint debts of the husband and wife, the people's court shall support them.

(3) If one of the spouses owes debts in his or her personal name in excess of the daily life needs of the family during the duration of the marriage relationship, and the creditor claims rights on the grounds that the debts belong to the joint debts of the husband and wife, the people's court will not support it, except that the creditor can prove that the debts are used for the joint life, joint production and operation of the husband and wife or are based on the joint intention of the husband and wife.

The following debts cannot be regarded as joint debts of the husband and wife, and shall be paid by one party with personal property:

(1) debts agreed by the husband and wife to be borne by themselves, except for the purpose of escaping the debt.

(2) One party, without the consent of the other party, funds the debts incurred by its relatives and friends who have no maintenance obligation.

(3) One party, without the consent of the other party, independently raises funds to engage in business activities, and its income is not used for the debt incurred by the joint life.

(4) Other debts that should be borne by the individual.

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (1)(Legal Interpretation (2001) No. 30)

Fourth, the latest judicial interpretation of marital debt

Interpretation of the Supreme People's Court on issues related to the application of law in the trial of cases involving marital debt disputes

(Adopted at the 1731st Meeting of the Judicial Committee of the Supreme People's Court on January 8, 2018, and effective as of January 18, 2018)

This interpretation is formulated in accordance with the General Provisions of the Civil Law of the People's Republic of China, the Marriage Law of the People's Republic of China, the Contract Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China and other legal provisions for the correct trial of cases involving marital debt disputes and equal protection of the legitimate rights and interests of all parties.

Article 1 Debts incurred by a joint expression of intention, such as the joint signature of both husband and wife or subsequent ratification by one of the husband and wife, shall be deemed as joint debts of the husband and wife.

Article 2 Where a spouse has incurred debts in his or her personal name for the daily needs of the family during the duration of the marital relationship, the people's court shall support the claim of the creditor on the ground that the debts belong to the husband and wife jointly.

Article 3 If one of the spouses has incurred debts in his or her personal name in excess of the needs of daily life of the family during the duration of the marriage relationship, and the creditor claims his or her rights on the ground that the debts are joint debts of the husband and wife, the people's court shall not support it, except that the creditor can prove that the debts are used for the husband and wife's joint life, joint production and business operation or are based on the common intention of the husband and wife.

Article 4 This Interpretation shall come into force on January 18, 2018.

After the implementation of this Interpretation, if the relevant judicial interpretations previously made by the Supreme People's Court conflict with this Interpretation, this interpretation shall prevail.

5. Equal treatment of joint property between husband and wife

Article 17 The provisions of Article 17 of the Marriage Law on "the husband or wife has equal rights to dispose of the property jointly owned by the husband and wife" shall be understood as follows:

(1) The husband or wife has equal rights in dealing with the joint property of the husband and wife. Either party shall have the right to decide on the disposal of the joint property of the husband and wife due to the needs of daily life.

(2) If the husband or wife makes important decisions on the disposal of the joint property of the husband and wife other than due to the needs of daily life, the husband and wife shall consult on an equal footing and reach a consensus. If the other party has reason to believe that it is the common intention of both husband and wife, the other party shall not oppose the bona fide third party on the grounds of disagreement or ignorance.

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II)(December 2003)