Wang Fang

Fair and not to men's advantage

Although the Supreme People's Court stopped soliciting public opinion on the draft of the new judicial interpretation of the Marriage Law on Dec 15, many people and media outlets still say it favors men in property division between husband and wife. But they have misunderstood the articles of the draft.

Compared with the two previous judicial interpretations, the latest one takes the prevailing social situation into consideration and suggests some groundbreaking ways of protecting women's rights.

To begin with, the new draft introduces 20 articles, 14 of which center on property relations between husband and wife, because Chinese families today hold increasing amount of wealth. The nature of their wealth is so varied that it often hinders mediation between couples in property disputes, over either private property or joint property.

The new interpretation recognizes the personal property rights of each spouse and eliminates the concern of men and women both that marriage will automatically turn their pre-marriage private property into jointly owned property.

For instance, according to article 11, real estate should be acknowledged as one party's property in a divorce case if that party signed the sales contract before marriage, made the down payment and repaid the bank loan from his/her own income, and has it registered under his/her name. Correspondingly, the outstanding loan should be his/her personal debt, and he/she has to pay the other party reasonable compensation if both spouses have jointly repaid the bank loan during the span of their marriage. The compensation should be justified by the proportion of loan the other party pays as well as the market value of the property.

Ironically, it is this article that women complain most about. Their objections reflect the conflict between the stereotype about marital property and the rising demand for defending personal property rights.

In traditional marriages, the wife used to bring in dowry such as household appliances and a man offered real estate in the form of a house. Such an arrangement is in men's favor because the value of dowry depreciates and that of real estate increases with time.

But things are different today. The traditional arrangement is no longer applicable to all marriages. Many men buy houses years before their marriage and pay developers by taking loans from banks. In such cases, real estate should certainly be considered the man's property. In fact, it would be unreasonable for his wife to lay claim to it in case of a divorce.

Despite that, the article is not disadvantageous to women. If the wife has helped her husband monetarily to repay the loan during her marriage, she can get back her principal and compensation based on the appreciation of the property.

In case a man and a woman buy real estate together before their marriage, they can sign a sales contract to turn the real estate into jointly owned property. The ownership can also be divided in the proportion of the down payment they make.

But what if the wife does not have the property registered under her name (or under joint names) despite having paid for the real estate before marriage? Her right over the property is still protected in case of a divorce, because she can seek property partition and get back the money she has paid.

Viewed in this light, article 11 cannot only protect individual property, but also free people from the worry of having their pre-marriage property transformed into jointly owned property after marriage. Besides, the article encourages both spouses to contribute to the family and ensures that neither party takes advantage of marriage to make easy money.

One of the achievements of the new interpretation is that it protects the rights of women at the grassroots. Article 5, for instance, is an early form of dividing property the European way. Many European countries like France and Germany, even China's Taiwan and Macao allow property division within the span of marriage, which is still missing on the Chinese mainland.

For years, women at the grassroots did not have any control over family property. As a result, husbands used to push women into a tight corner by stealthily transferring their joint property or borrowing money in their wives' names. In such a situation, a woman could lose her share of property if she chooses to sustain the marriage. So she has to seek divorce to safeguard her share of the property. But despite seeking divorce to demand property division, a woman could still lose her share of property because the legal procedure is time-consuming. Now, thanks to the new interpretation, wives can demand property division even before getting a divorce.

Besides article 5, article 12 says that if a spouse disposes of jointly owned property unilaterally and causes loss to the other spouse he/she should pay compensation to the other. For years, a wife could not be compensated for the loss she suffered if her husband sold a family estate to a third party, because according to the country's Property Law, the price of real estate cannot be recovered in case of bona fide sale. The new interpretation creates room for women to fight for their property rights even before getting a divorce and possibly overturn the sale of real estate that has taken place behind her back.

Here arises a conflict between the Marriage Law and the Property Law. But the new interpretation strikes a good balance between the two, and in all judicial probability it will weigh in favor of the Marriage Law, because property concerns the basic needs of a family and women, many of who still don't have control over family property.

The new interpretation strikes the best possible balance between individuals' rights on personal and joint property. Of course, it can be improved on the basis of people's suggestions and opinions. But it deserves to be seen as true to interpretation of the Marriage Law.

The author is a lawyer, who specializes in marriage disputes.

(China Daily 01/04/2011 page9)