[Direct answer]The debts incurred by one spouse in providing guarantees to others are, in principle, not joint debts of the couple and shall be borne by the signing party with his/her personal property. According to Article 1064 of the Civil Code (effective January 1, 2021), joint debts are limited to those signed jointly, subsequently ratified, or debts incurred by one party for the needs of daily family life. Guarantee debts usually exceed the scope of daily family affairs and are not for the common life or joint production and operation of the couple, unless the other party explicitly ratifies them or the creditor proves that the funds are used for the couple's common life. When the couple divorces or the creditor seeks repayment, the non-signing party may raise objections based on this. For more details, please refer to the relevant provisions of the Civil Code.Legal services for creditor-debtor disputes and enforcement casesAndBeijing Henglue Law Firm.

1. Problem background and typical scenarios

The guarantee provided by one spouse abroad often becomes a hidden risk to family assets. Typical scenarios include: the husband providing joint and several guarantees for a friend's company's loan, and the creditor suing both spouses after the friend absconded; the wife signing a guarantee contract for the business operated by her spouse, and being pursued for repayment after the divorce; personal guarantees made before marriage being claimed as joint repayments after marriage; and the spouse mortgaging the family's jointly owned property to outsiders, with the non-signing spouse claiming ignorance of the matter. Such disputes often arise in lending, corporate financing, and enforcement procedures. The relevant boundaries of family assets can be referred to for reference.Divorce litigation and legal services for family disputes.

II. Key points of contention

There are three points of contention. First, the nature of the debt: whether the guaranteed debt is a joint expression of intent, and whether there is a joint signature or subsequent ratification; Second, the purpose of the guarantee: whether the funds raised by the guarantee are used for the couple's joint life or joint production and operation; Third, the internal and external validity: the division of debts in the divorce agreement cannot be used against bona fide creditors, but can be used to seek compensation. The court generally adopts a cautious stance. If there is no joint intention to borrow money and it is not used for family purposes, it will not be recognized as a joint debt. The review of relevant contracts can be combined with this.Legal services for corporate commercial and contract disputes.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers have observed in similar cases that the proportion of guarantee debts being recognized as joint debts is relatively low, and the key lies in the allocation of the burden of proof. The party who did not sign the guarantee contract should prove that the guarantee was the spouse's personal act, and that they did not authorize or ratify it; that the benefit of the guarantee did not benefit the family, for example, the borrowed money went into the spouse's personal control account rather than being used for the family's joint operation; and that the family's income was sufficient to cover daily expenses, so there was no need to obtain funds through the guarantee. Conversely, if the creditor can prove that the other party knew about and agreed to it, or that the guarantee enterprise was actually a jointly operated one by the couple and the profits were used for the family, it may be recognized as a joint debt. Lawyers suggest separating personal guarantees from family assets in daily life, assessing the joint risks before signing the guarantee contract, and, if necessary, clarifying the nature of personal debts in a written statement. For cases involving real estate mortgages, reference can be made to the relevant provisions.Legal services for real estate transactions and construction projects.

IV. Practical Suggestions and Legal Basis

Legal basis: Article 1064 of the Civil Code defines joint debts, Article 1060 regulates daily family affairs agency, and the excess part requires a joint expression of intent; Article 1089 deals with the division of debts in divorce, but such division shall not be enforceable against the creditor. In practice, the unsigning party who is being claimed against should require the creditor to provide evidence that the guarantee was used for joint living or joint operation; at the time of divorce, the parties may agree on the attribution of debts and retain the relevant evidence, and then seek recourse according to the agreement. Where the mortgage involves jointly-owned real estate, the authenticity of the signature and whether it constitutes an unauthorized disposition should be verified, and if necessary, the invalidity of the mortgage should be claimed. The division of relevant property can be combined with the following aspects:Special services and legal services for other casesEvaluate the property boundaries.

5. Henglue Law Firm's Reminder

Spousal guarantee does not equal family debt repayment, but the risks are real. The party who has not signed the guarantee document should avoid signing it casually, and those who are not involved in the guarantee should keep evidence of their lack of authorization. If the spouse guarantees a large amount of money to others, it is necessary to clarify the boundaries of family property and consider making a marital property agreement as soon as possible. Once sued, do not passively refuse to appear in court, but actively provide evidence to prove that the guarantee benefits have not benefited the family. In complex situations, it is advisable to seek professional legal advice.Corporate Legal Services and Intellectual Property Protection Legal ServicesDevelop a defense and asset separation plan to prevent personal guarantees from turning into family debts.

VI. Frequently Asked Questions

Q1: If my spouse acts as a guarantor for someone else, do I have to repay the money together with them?

Generally, this is not the case. According to Article 1064 of the Civil Code, joint debts of a married couple must be co-signed, retroactively acknowledged, or incurred by one party for the needs of daily family life; when one party provides a guarantee to a third party, this usually exceeds the scope of daily household agency, and the benefits of the guarantee do not necessarily belong to the family. In principle, it is a personal debt, and the signing party shall bear the liability with his/her personal property. If the party has not signed or acknowledged the guarantee and the guaranteed funds have not been used for the couple's joint life or joint production and operation, the creditor's request for the other party to repay the debt together lacks legal basis. The other party should keep evidence of not authorizing the use of independent family income as a defense.

Q2: Why are guaranteed debts usually not considered marital joint debts?

The guarantee is free of charge and unilateral. The guarantor generally does not directly obtain funds for family use, unlike the debt of the borrower. The court holds that the joint debt should be based on the joint intention of the couple or used for the common life and production and operation of the family; if there is no joint beneficiary in the simple signature guarantee, it does not meet this requirement. The relevant judicial interpretation also tends to regard the external guarantee of one spouse as a personal debt, unless there is evidence to prove that the other spouse is aware of it, acknowledges it, or the proceeds of the guarantee are actually used for the family. Therefore, when the creditor claims joint repayment, he/she shall bear the corresponding burden of proof.

Q3: Under what circumstances will the spouse's guarantee become a joint debt?

In any of the following circumstances, the guaranteed debt may be deemed joint: First, the other party co-signs the guarantee contract or explicitly ratifies it afterwards; Second, the funds raised by the guarantee are actually used for the couple's common life and production and operation, such as for family home purchases and the working capital of the jointly operated enterprise; Third, the guaranteed enterprise is jointly operated by the couple, and the income is included in the family. At this time, the creditor may claim joint debt. If the non-signing party has verbally agreed, participated in the operation, or shared the income, they may be deemed to have a joint intention. It is necessary to pay attention to leaving evidence to avoid vague statements being accepted as ratification.

Q4: After the divorce, will the former spouse's guaranteed debts still be pursued against me?

If the guaranteed debt is legally classified as a personal debt of one party, the other party has no obligation to repay it after divorce; however, the internal division of debt in the divorce agreement cannot be used against bona fide creditors. Creditors may still claim against both parties first, and then the party who bears the liability may seek reimbursement according to the agreement. Therefore, when divorcing, it is necessary to clarify the ownership of the guaranteed debt and retain the relevant evidence, while also making it clear to the creditor that it is not a joint debt. If the guarantee occurs during the marriage and is recognized as a joint debt, divorce does not exempt the joint and several liability, and the party can only seek reimbursement afterwards. It is recommended to entrust a lawyer to clarify the nature of the debt and fix the evidence before divorce.

Q5: If a creditor pursues me for joint and several liability under the guarantee, how should I defend myself?

The defense revolves around three points: First, claiming that the guarantee was a personal act of the spouse, and that he/she did not have a joint intention, did not sign the contract, and did not subsequently acknowledge it; Second, proving that the guarantee benefits were not used for the couple's joint life or joint production and operation, and providing family income, account statements, and operating certificates; Third, reviewing whether the creditor acted in good faith and was aware that it was a personal guarantee of one party when granting the loan. At the same time, the validity of the guarantee contract and the guarantee period can be verified, claiming that the guarantee period has expired or the principal claim is invalid. When the evidence is sufficient, it is possible to request the dismissal of the claim against oneself, and the relevant contract disputes can be evaluated together with the enterprise commercial legal services.

The above answer is based on the judicial practice in Beijing. The judicial interpretation in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, so as to avoid missing the statutory time limit. →Legal services for creditor-debtor disputes·Beijing Henglu Law Firm