What Is Private Debt?

Husband and wife personal debt refers to the debt that the husband and wife agreed to bear personally, or the debt that arises when one party engages in the common life of an unrelated family. Husband and wife personal debt is relative to husband and wife joint debt.

The personal debts of husband and wife include the following:

1. Pre-marital debt of a spouse. If the spouse's debts for the purchase of a house and other properties are not used for living together after marriage, they should be regarded as personal debts.

2. The husband and wife shall agree on the debts to be borne by the individual according to law. If the spouse assumes that the debts borne by the common life are to be borne by one party, it can be regarded as the spouse's personal debt. Such an agreement does not have an antagonistic effect on creditors in principle, unless the creditor knows the agreement in advance or ratifies it afterwards.

3. One spouse has debts due to personal unreasonable expenses, such as gambling, drug use, and alcohol abuse.

4. In the will or gift contract, it is determined that the property belonging to only the husband or wife is personal property of one party. The debt accompanying the will or gift contract shall also be borne by the party receiving the will or gift alone, and the other party has no responsibility for settlement.

5. A spouse finances debts borne by an unsupported person without the consent of the other party.

6. A spouse raises debts for production or business activities without the consent of the other party, and their income is not used for common life.

7. Other debts that should be borne by individuals according to law. Including the debts of a spouse who commits illegal acts and torts.

The personal debt of husband and wife is relative to the common debt of husband and wife. Which debts belong to husband and wife personal debt during the existence of husband and wife relationship has always been a more controversial issue in judicial practice. In divorce cases, the division of husband and wife's property is one of the focuses that the parties generally pay close attention to. Among them, the distinction and identification of husband and wife's common debt and husband's personal debt, especially the determination of the scope of husband's personal debt are the difficulties in litigation.

I. Premarital debt of one or both spouses

The common debt of the husband and wife is based on the establishment of the husband-wife relationship. If there is no husband-wife relationship, there can be no husband-wife debt. Before the marriage relationship was established, the husband and wife were independent civil entities without legal links, and the debts raised by either party were, of course, their personal debts. Pre-marital personal debt, even if the debt occurs after marriage due to the exercise of revocation or recognition of an unauthorized agent or due to the achievement of the conditions attached to the suspension, is still personal debt before marriage. Of course, according to China s New Marriage Law, the provisions of the husband and wife property contract stipulate that one or both parties pre-marital debts may be agreed upon as a joint debt of the husband and wife. Once there is a clear agreement, the personal debt of one or both parties before marriage is converted into a common debt of the husband and wife .

Debts agreed to be borne by individuals in marriage

Just as pre-marital personal debts can be made common to husbands and wives by agreement, so the common debts of husbands and wives due to their common lives during the marriage relationship can also be agreed as personal debts. However, such an agreement must not be used for the purpose of evading debts, otherwise the agreement will be invalid. Moreover, the effect of a spouse's agreement on a common debt as personal debt is only for the spouse, and the agreement cannot be against a third party unless there is evidence that the third party knows or agrees with the agreement. If there is no evidence to prove that the third person knows or agrees to the agreement, the spouse should still bear joint and several liability for the debt.

3. Debts of a spouse engaged in business activities with personal property

Whether or not during the existence of the marriage relationship, either spouse has the right to completely independent control of their personal property. The debts owed to the spouse's use of personal property for business shall be personal debts of the spouse, unless the spouse explicitly agrees to be a joint debt. If there is no explicit agreement, even if the income from the business period is used for the common life of the husband and wife, it does not affect the nature of the debt as one's personal debt, because one party's voluntary use of the business income for the husband and wife's common life is a punishment of one's own property by the law. Restrictions or conditions are necessary.

4. Debts of a spouse who use the common property of the spouse to engage in business activities without authorization

During the existence of the marriage, one party engages in the business activities with the common property of the husband and wife, and the other party does not know afterwards and has not ratified it. The debts borne by the business activities are personal debts of one party. Because the amount of funds required to engage in business activities is large, both husband and wife should make a joint decision to engage in business activities. One party must not make an unauthorized decision. This behavior is beyond the scope of the husband's family agency rights. In practice, it often happens that one party engages in the business activities of the spouse property without the other party's knowledge or consent, but afterwards does not object to the use of the business income for the spouse's common life. If the debt is incurred, is the debt a spousal joint debt? It is considered that in this case, it should be a joint debt of the husband and wife, because one party "that has no objection to the use of the business income for the husband and wife's common life" has actually ratified the other party's business activities.

V. A spouse's unauthorized funding of debts borne by a person with whom he has no obligation to support

Outside the scope of husband and wife agency rights, external liabilities should be created by the consent of the husband and wife. The act of unlawful borrowing by one husband and wife has no legal rights and obligations with the other husband and wife, and does not meet the characteristics of joint debt. If a spouse indebtedly finances a person with whom he has no obligation to support, the debt is a personal debt of the spouse. Of course, according to the principle of freedom of agreement between husband and wife, the personal debt of one party can be converted into the joint debt of the husband and wife in the agreed manner. In practice, the conversion of the nature of the debt is generally accomplished through the ratification of the opposite party of the husband and wife.

6. Debts of a spouse as a result of torts or criminal acts

Infringements or criminal acts that cause damage to the person or property of the victim must necessarily bear corresponding legal liability. The legal consequence of a civil tort is civil liability, which compensates for losses in an important way of bearing civil liability; the legal consequence of a criminal act is a criminal penalty, and the penalty includes a penalty method, and it also gives the victim Have the right to bring criminal and incidental civil compensation. The debt or penalty of a spouse due to a civil tort or criminal offense is caused by the fault or criminal act of one spouse and has no legal connection with the other spouse. Therefore, the debt or penalty, as well as related costs such as litigation costs, attorneys' fees, etc. incurred as a result of civil tort or criminal acts, can only be a party's personal debt. Of course, in practice, there may be situations in which the debt or penalty is caused when a spouse performs his or her duties or engages in domestic agency or is necessary for the spouse's common life. In this case, the victim can claim joint and several liability. Husband and wife shall share the burden, but for the husband and wife, it shall still be the personal debt of the husband and wife.

Debts in the management or achievement of the personal property of a spouse

Whether the spouse's personal property is managed by himself or entrusted to others, the debts arising from this obviously belong to one's personal debt. Because the debt is based on one person's personal property, the interest of the property is solely enjoyed by one party. According to the principle of equality of rights and obligations, the other spouse does not enjoy property rights, and of course does not have to bear debts arising from the management of the property. According to China s Marriage Law, the will or gift contract clearly determines that the property of the husband or wife is the personal property of the husband or wife. The debt incurred by the husband or wife in fulfilling the will or gift is of course a personal debt of one party . Such as the taxes or transfer fees paid by a party when accepting the estate, etc.

Debts incurred by one spouse to provide security to others with personal property or spousal common property

Either spouse has ownership of personal property, and it is not prohibited by law for either party to use personal property to provide external guarantees, but the debt incurred as a result of the guarantee does not require the other party to be jointly and severally liable, except in cases where the spouse agrees or the counterparty confesses afterwards . As for the joint property of the husband and wife, one party shall obtain the consent of the other husband and wife when acting as an external guarantee. Unless the husband and wife have an explicit agreement afterwards or the other husband and wife confess afterwards, the other party shall bear sole responsibility.

9. Debts of a spouse due to bad habits or engaging in illegal acts

This kind of situation is mostly manifested by the debts of a spouse due to gambling, prostitution, drug abuse and other illegal acts or illegal acts. Of course, if the debt of a spouse is not directly caused by the above-mentioned vice or illegal act, it is a loan from a third party to engage in the above-mentioned vice or illegal act, and the third party does not know that the purpose of the spouse's loan is to use the above-mentioned vice or illegal act. When acting, the rights of a third party in good faith should be protected by law, and claims of both parties can be claimed in the form of joint debts between husband and wife. In any case, the debt remains the personal debt of the spouse within the spouse. ^[1]

X. Debts of spouse during separation

Separation is a more common problem in China's marital life. Separation can occur because of one party's unilateral will, or because of the mutual agreement of both parties. Separation is a change in the life state or lifestyle of a couple, not a change in the nature of the couple's marital relationship. Even after two years of separation, the court only recognized it as a reason that the relationship between the couple has indeed broken down. China has not established a strict separation system for couples. Whether the property during the separation is the personal property of the couple and whether the debts during the separation are personal debts has not been clearly recognized by the law in China. The author believes that the actual situation of separation should be treated differently. For spouses who have a good relationship or that their relationship has not completely broken but are caused by objective reasons such as work, medical treatment, children s schooling, training, etc., the property acquired after marriage shall be considered as the common property of the spouse when they are separately managed and used during the separation. Property, debts incurred by one or both parties due to living, study, medical treatment, training, etc. during the separation period are common debts of the husband and wife; for husbands and wives who are separated due to the deterioration of their feelings or the relationship has completely broken down, the property obtained during the separation is the husband and wife individual Property and debts are personal debts of the couple. Because the husband and wife are separated in this situation, subjectively, the desire to live together has been lost between the husband and wife, and the state of living together has objectively ended, thereby losing the basis and conditions for establishing the husband and wife's common property, and the economic relationship between the husband and wife has been interrupted The property income of one spouse is no longer based on the premise that the two parties are interdependent. In fact, the obtained property is actually in a separated state, forming two independent economic life subjects. Although the two parties are still husband and wife, this is only an identity relationship, and The two sides also lost each other the foundation and necessity of a domestic agency. Therefore, the spouse's debt in this case is the spouse's personal debt. ^[2]