New Interpretation of Chinese Marriage (2011) makes clear that the immovable property purchased by a spouse before marriage is that spouse’s property. This interpretation sparks loud debate in the Chinese society and legal circles and people hold widely different opinions.
TRADITIONAL CHINESE MARRIAGE: HUSBAND BUYS THE HOUSE, WIFE DECORATES THE HOUSE
Deng Fang and Zhang Song were university classmates and then became lovers. Both of them landed jobs in Beijing. When they were settled down, they began planning their marriage.
The couple was from salaried families in a small town in east Henan Province. According to Chinese marriage tradition, the husband is usually responsible of buying a house. Zhang’s parents had bought their son a condo in Beijing a year before. The condo, though only 62 square meters, cost the old couple all the savings just to make the down payment. As to the owner’s name on the property ownership certificate, the old couple filled in their son’s name.
Small as the condo is, a considerable financial burden has to be paid off by the young couple. But Deng, the newly-wed wife, was still quite happy as she could have a home of her own. At that time, she didn’t care about the owner’s name on the property ownership certificate because she thought they’d share the property. In many Chinese families, the husband buys the home before the marriage and the property ownership certificate bears the husband’s name only.
As soon as she got the key of the new home, Deng began her work: selecting furniture and household appliances, all of which were paid by Deng and her parents. This follows the Chinese marriage tradition: the husband buys the house and the wife decorates the house.
The furnishing of the apartment was finished and the wedding date was getting closer. The young couple was full of anticipation.
INTERPRETATION (III) OF THE CHINESE MARRIAGE LAW PROMPTS COUPLES TO REVISE PROPERTY OWNERSHIP CERTIFICATES
Just two months before Deng and Zhang’s wedding day, the Supreme People’s Court released “Interpretation (III) of the Supreme People’s Court of Several Issues on the Application of the Marriage Law of the People’s Republic of China” in August 2011.
The judicial interpretation sparked wide debate.
This new interpretation contains 19 articles, covering many topics. The issue of property ownership got the most attention. The interpretation provides legal authority for judges to mandate property division in divorce cases. This is also closely related to young couples, like Deng and Zhang.
For instance, the seventh article states that immovable property purchased by a spouse’s parents for that spouse during a couple’s marriage, if the property right is registered in the recipient spouse’s name, may be deemed a gift to that spouse.
According to a media survey, 47 percent of the respondents believe the divorce rate will increase and the Chinese outlook on marriage, spouse selection and procreation viewpoint will undergo great changes as a result of the release of the new interpretation.
If, before the marriage, one spouse had signed a contract for purchase of immovable property whereby that spouse made a down payment with his or her individual property and took out a bank loan, and during the marriage mortgage payments were made with community property and the immovable property was registered in the name of the spouse that made the down payment, at the time of divorce the spouses should reach agreement on the disposition of the property, according to the Interpretation. If the spouses are unable to agree, a people’s court may rule that the property belongs to the registrant and that the unpaid mortgage payments are the individual liability of the registered owner.
Looking at the new interpretation, Deng felt a little uneasy. The new interpretation means if they were divorced one day, the home would belong to Zhang. Though Deng would not believe that day would come, she was still worried.
Deng is not the only one who is worried. The new interpretation has prompted widespread discussion among people from all walks of life. Some internet users said, “The husband becomes landlord. The wife comes and goes but the house always stays.” “Why is it centered on the property ownership? The divorce rate in China has been on a rise and the biggest hurdle in a divorce is the property ownership. Now that the obstacle has been removed, some men are able to divorce their wives without scruple.”
Soon Deng received a telephone call from her parents. Her mother insisted that Deng should ask her husband to add her name on the property ownership certificate. “We paid for most of the decoration and furniture costs. And you two will pay off the loan together. You certainly should be added to the certificate.” “In case Zhang betrayed you in the future, this is also a kind of protection. You can’t afford to lose your husband and the home.” She thought her mother’s words sounded harsh but rather reasonable.
So she asked Zhang’s family to add her name on the certificate but the request was flatly rejected. Their reason is very simple: “We buy the condo and it belongs to our son. And this is also a tradition.”
The two families have since been stuck in impasse and the wedding is postponed, too.
With the release of the new interpretation of the marriage law, Deng and Zhang are not the only ones affected. According to a media survey, 47 percent of the respondents believe the divorce rate will increase and the Chinese outlook on marriage, spouse selection and procreation viewpoint will undergo great changes as a result of the release of the new interpretation. Many people have reportedly applied to revise the ownership of their property after the new interpretation was put into effect.
THE DEBATE AROUSES MORE REFLECTION OVER MARRIAGE
In this trouble, Deng is the one who suffers the most. Facing the deadlock, she doesn’t know what to do. She perfectly understands her parent’s good intention but she herself doesn’t really care about the ownership, because she wants to create a new life with Zhang through hard work.
Deng refused other pursuers who were richer than Zhang though she was regarded as stupid by her girl friends. She despises those golddiggers. She thinks that the new interpretation slams the distorted, moneybased outlook on marriage.
However, the new interpretation does not only slam the distorted out look on marriage but also blows one of her wishes, which may also be shared by other young women.
“I had always dreamed of being a full-time mother when Zhang is rich enough to support the whole family.” But now Deng said, “Compared with an insecure future, I prefer to be a professional woman. At least I am the master of my own fate.”
Some people may have the same worry after the new interpretation came into effect. There is lack of protection for the vulnerable or poorer party in a marriage. For example, to housewives, especially the rural housewives, they have no work but to take care of children. Those people may be the ones who suffer the most serious effect. Once their husbands want a divorce, the chances are that they may lose everything.
“I must be a ceiba tree by your side, as a tree standing together with you.” This is a line from the poem “To the Oak” by female poet Shu Ting. Thinking of this poem, Deng feels that the name on the property ownership certificate is not that important; rather love and trust count the most in a marriage.
The new interpretation also states: In regard to money paid by both spouses during the marriage for mortgage payments and their corresponding shares in the property’s appreciation, the spouse who is the registered property owner should give compensation to the other spouse at the time of divorce, in accordance with the principles stipulated in article 39, paragraph 1, of the Marriage Law.
This is kind of a relief to Deng.
She believes she is fully capable of managing well her marriage and protecting her own rights and interests by the power of law and her own independence.
In fact, Zhang has been regarding this housing unit as their shared property from the very beginning, so he has no objection to the request of adding Deng’s name on the certificate. He understands this is a mother’s intuition to protect her daughter and he also understands that this property took all his parents’ savings, which also reflects their love for their son. So what he can do is to try to persuade and reconcile the two old couples.
Though the reconciliation takes time and one can’t expect the two parents to change their minds in one day, Deng and Zhang have reached agreement. They got their marriage license during the National Day holiday.
Because of the new interpretation, the couple’s wedding was postponed but it also gives them a chance to think over marriage.
Sometimes, Deng tells Zhang, jokingly, that if they gave birth to a girl in the future they should teach her to be independent and encourage her to buy a housing unit of her own, at least pay half down the payment.
On August 13, 2011, the Supreme People’s Court released “Interpretation (III) of the Supreme People’s Court of Several Issues on the Application of the Marriage Law of the People’s Republic of China,” to provide interpretations regarding property disposition. For the first time, it makes clear that the immovable property purchased by a spouse before marriage is that spouse’s property; and the immovable property purchased by a spouse’s parents for that spouse during a couple’s marriage, if the property right is registered in the recipient spouse’s name, is that spouse’s separate property. This interpretation sparks loud debate in the Chinese society and legal circles and people hold widely different opinions:
DIRECTOR, CHONGQING APPLIED PSYCHOLOGY CENTER OF THE ACADEMY OF SOCIAL SCIENCES
“The interpretation relieves women from the subordinate status of “benefit from marriage and pay back marriage,” which complies with the modern women’s independent spirit. When “contributions” is not one spouse’s responsibility alone, the two parties both should make joint effort. To promote this trend is also a reflection of the improvement of the Marriage Law”.
PROFESSOR, CHINA UNIVERSITY OF POLITICAL SCIENCES AND LAW
“Considering China’s conditions, man is usually responsible for buying a housing unit and woman moves in. As to the ownership of the housing unit purchased before marriage and both the spouses pay the loan, the duration of the marriage and the amount of the loan should be taken into consideration. If the marriage lasts a long time and the amount of the loan that the two spouses have paid together is large, it is not conducive to protecting women’s property rights and interests if the housing unit is determined to be one spouse’s separate property”.
PROFESSOR, LAW SCHOOL OF PEKING UNIVERSITY
“In current Chinese society where housing is so costly, the public is very sensitive about the policies relating to housing issues. This interpretation may vulgarize marriage and family relations”.
“In the expensive housing era, many young people can’t afford a housing unit. They don’t want to put a burden on their parents, and don’t want to cause unnecessary troubles, either. It’s better to rent an apartment instead of becoming a “housing slave””.
EXECUTIVE DIRECTOR, CHINA LAW SOCIETY AND CHINA’S MARRIAGE LAW SOCIETY
This interpretation doesn’t cover the topic of the property disposition in the cases of rural women’s divorce. In China’s rural areas, the wedding houses are usually built by the man’s family. According to the interpretation, the house is the husband’s own property, which does not reflect attention and protection of rural women’s rights and interests.
Published in Confucius Institute Magazine
Magazine 17. Volume 6. November 2011.
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