New home front opens up in divorce battleground
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China Daily, August 18, 2011
When romance ends, property arguments begin. Beijing-based lawyer Zhang Jing said he has been bombarded with inquiries since Saturday, when divorce property rules changed.
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China's divorce property rules changes on Saturday. |
Previously, marital assets were divided equally unless either party was found guilty of bigamy, domestic violence, abandoning the family or living with a lover for three months or longer.
Now, the partner whose parents bought the property for the couple will retain sole ownership in a divorce.
The change is part of a new judicial interpretation of the marriage law.
As a result of the change, one of Zhang's clients insisted that her name be registered as co-owner of the matrimonial apartment, which her husband's parents purchased, so she would have a right to claim the asset if the marriage fell apart.
"It was unpleasant for the young couple and their families. But in the end, she got what she wanted," Zhang said. "After all, the two are in love and serious about getting married."
That young woman is not unique. Another, who refused to be named, went so far as to tell her husband she wouldn't have a baby or take care of his parents unless she was registered for ownership.
While some people complain about having to discuss divorce even before tying the knot, the Supreme People's Court said the new rulings are aimed at heading off disputes over the property ownership in divorce cases.
Every day, more than 5,000 Chinese couples end their marriages. The Ministry of Civil Affairs reports that about 946,000 couples applied for divorce in the first half of 2011. Last year there were 1.96 million, a 14.5 percent increase from the previous year. The average annual increase since 2003 is 7.6 percent.
With the country's soaring real estate prices, property has become a lucrative asset and is frequently contested in divorce cases. Legal experts say the new explanation offers clear-cut reference for judgment in divorce lawsuits involving property.
Wang Xiuquan, a senior matrimonial lawyer with Beijing Chang An Law Firm, said parents who buy their children houses are the most protected group.
"Fewer and fewer young people can afford a home by themselves without parents' support," he said. "Many parents even put their entire life savings into a home for the children's marriage. I think the new interpretation will protect the rights of these parents."
"Parents who buy their children homes used to worry that if their children divorced it could result in the loss of family property," said Sun Jungong, a spokesman for the Supreme People's Court.
When parents help . . .
Wang Hua, who is now 38, and Li Xiang, 39, married in May 2000 and had a daughter in March 2002. They lived in a 95-square-meter apartment in Wanshoulu, Haidian district of Beijing, that Wang's parents bought in 2003 for 1.2 million yuan (US$187,800).
"We lived in perfect accord with each other before my daughter was born," Wang said. "However, the sweet dream was short-lived." She said her husband became obsessed with mahjong and spent little time with the family.
Although Li agreed to divorce, he insisted that he owned half the property. The apartment was purchased after marriage, he said, so it should be viewed as a gift from Wang's parents to the couple.
Under the new explanation, the court can identify the apartment as Wang Hua's personal property as long as her parents can present evidence such as remittance notes, money transfer bills, bank records and the property certificate bearing her name, lawyer Wang Xiuquan said.
The new explanation also says that if a home is purchased by both sets of parents and the marriage ends in divorce, the value of the asset can be divided according to each side's contribution.
For example, one Beijing couple married in April 2008 and bought an apartment in Chaoyang district in August 2010 with money contributed by their parents - 800,000 yuan from his parents and 900,000 from hers. The home was registered to the husband.
The wife learned that her husband had been unfaithful (this is why they are not identified) and planned to file for divorce, but she worried she would lose the property.
"According to the new interpretation of marriage law, the house can be divided by both parents in accordance with their proportion of providing the housing fund, no matter whose name was on the registration," said Guo Wanhua, a marriage and family counselor who also is a senior matrimonial lawyer at Chang An.
The new interpretation also says that homes mortgaged by one party before the marriage should be deemed the personal property of the registered owner, rather than joint estate.
But it also urges courts to give reasonable consideration and compensation to the other party's contributions toward mortgage payments and to appreciation in the value of the house.
Cashing in
Some observers hope the new judicial interpretation can gradually eliminate the "no house, no marriage" mindset.
In a discussion of the draft judicial interpretation last year, many legal professionals mentioned that the article on property rights aimed to tackle "the unhealthy tendency of marrying for material wealth", according to lawyer Zhang.
An extreme example is that of Ma Nuo, a contestant on a controversial but highly popular TV dating program, who claimed she would "rather cry in a BMW sedan than smile on the backseat of a bicycle".
"The statement was actually one of the reasons for drafting the interpretation article," Zhang said.
In China, it is traditional that the man makes the house while the woman makes the home: He buys the house and she spends her life looking after it, along with the old and the little members of the family, and supporting her husband's career.
Despite social progress and increasing calls for gender equality, the traditional mindset remains. According to a survey conducted last year by All China Women's Federation, about 70 percent of women interviewed said they would marry only if their partners possessed a home, solid savings and a steady income. The survey was taken in 31 provinces over the course of a year.
Discrimination?
Will the new judicial interpretation favor the rich and discriminate against the weaker party in a marriage? Zhang thinks so.
"For example, housewives, especially those in the rural areas who have no job and are responsible for taking care of their families, will be affected most by this new change," she said. "If their husbands want a divorce, they are likely to be kicked out of the house with nothing."
Luo Huilan, a professor of women's studies at China Women's University in Beijing, agreed.
In rural areas, she said, men have the final say in family matters. All essential family assets, such as home, car and bank deposits, are registered in the men's names, and women fill the roles of only wife, mother and farmworker.
"Their labor, though substantial, hardly gets recognition. Without a good education, they have to rely heavily on their husbands," Luo said. "In case of divorce, a woman is driven out of her husband's life, home and family, and finds herself an alien even in her parents' home. No wonder the new interpretation of the Marriage Law has aroused concern among women."
In urban areas, many women help their husbands repay bank loans. The new interpretation makes room for women to be compensated in proportion to their loan payments and appreciation of the real estate. However, Luo said they lose the initiative in the fight for property and are forced to wait for compensation, and take with them only a depreciated dowry, which often is in the form of furniture and appliances.
Li Mingshun, a law professor at China Women's University, said the new interpretation goes overboard in applying economic rules to marriage and family issues. "It overstresses the importance of property protection and overlooks the protection of the more vulnerable party in the marriage."
"There is both a personal relationship and a property relationship in a marriage, but the fundamental is the personal relationship." Li said. "Nowadays, as property prices soar, there is a tendency to stress wealth in marriage. It's safe to say that the new judicial interpretation has helped promote this kind of view about marriage."
'Men, women equal'
The debate continues. Guo, the lawyer and counselor, argues that it is time to break away from the centuries-old traditions of men buying homes for marriage.
"Men and women are equal," he said. "Then why do people take for granted that it's the man's responsibility to buy the house for marriage and raise the family?
"The new interpretation just calls for the equality of men and women and encourages the couple to buy a home through their own joint efforts, and not depend on their parents," Guo said. "Marriage should be built on love, not on a home and other assets."
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