Matrimonial estate according to China Marriage Law

   The legal framework governing marriage property relations between husband and wife was put under increasing stress in the 1990s as a result of China's rapid economic development and social change. The forms and value of the domestic property have expanded significantly, and property dealings between spouses and third parties have grown considerably. Accordingly, the ownership, contents and value of matrimonial assets have become more complicated, often making difficult the task of dividing the estate upon divorce. Custody is not considered to require new regulation so that the provisions in the Marriage Law and the 1993 ("Several concrete opinions of the China Supreme People's Court on the problems of bringing up children in divorce cases handled by the China Supreme People's Court"), November 1993 remain the main source of rules. The fundamental principle is found in Article 36 of the revised China Marriage Law (Article 29 in the old version of the 1980 Law) which provides that after divorce ordinarily the mother is awarded custody of a child that is still being breastfed (in the 1993 Opinions the wording is a child who is under two years of age). For older children, custody is a matter of agreement between the two parties. However, if they are unable to reach an agreement and a dispute arises, the court is expected to award custody on the basis of the child's interests, the circumstances of the divorcing spouses, and in cases in which the child is ten years old or above, the wishes of the child (Article 36 of the revised Marriage Law, and Articles 3 and 5 of the 1993 Opinions). The 1993 Opinions at Article 3 envisage a range of circumstances in which custody might be awarded to the father rather than the mother. Although neither the revived Marriage Law nor the 1993 Opinions deal with the issue of access for non-custodial parents, the Opinions do allow for joint custody (Article 6). Child support payments for children up to the age of 18 are a function of the child's needs, the financial circumstances of the parents and local cost of living, but ordinarily will not exceed 30% of a parent's fixed income (Article 7). Suffice it to say that court awards of custody to women continue to suffer from problems of enforcement, especially in rural areas. The revised China Marriage Law at Article 38 does, however, confirm the rights of non-custodial parents to visit their children. These are in the first instance a matter of negotiation between the parents and only if they are unable to agree should a court make an order. If visitation by a non-custodial parent leads to a decline in the wellbeing (include mental health) of a child, then the court may order a cessation of the visits until such time as the child's wellbeing is restored.

   One probable result of this increasing complexity is that negotiation between the parties for securing the division of the matrimonial estate is the preferred form of decision-making. While a negotiated outcome should be lawful, and not contravene the interests of third parties, serious power imbalances will nevertheless often affect the decision-making process. There is a real danger that the rights and interests of divorcing wives are insufficiently safeguarded. Some protection is offered by Article 47 of the revised China Marriage Law, which provides that a party who is discovered to have concealed or alienated the property or to have created false debts, will receive, inter alia, a smaller share of the matrimonial estate (Article 47 of China Marriage Law). The changing circumstances also stimulated vigorous debate on a number of key issues: for example, should the intellectual property rights of one spouse be included in the matrimonial estate to be divided at divorce, or excluded on the basis that this will be an incentive for originality and creativity? The revisions to the 2001 Law are a compromise, with earnings from intellectual property rights characterized as joint spousal property, but the ownership of the property rights themselves remaining under the individual ownership of the inventive spouse. These provisions are now contained in Article 17 of the revised China Marriage Law, and that and the following Article together with the relevant sections of the two judicial interpretations of the Marriage Law now offer a significantly reformed system. Thus, the 2003 Interpretation now provides explicit rules on the often difficult issue of betrothal gifts, allowing for their return in matrimonial proceedings where the spouses failed to register their marriage or to cohabit after marriage registration, or where the donor has experienced financial difficulties as a result of his generous gift. 30 In Article 18 of the 2001 revised China Marriage Law and Article 11 of the 2003 Interpretation, significantly clearer guidance is given to judges faced with the sometimes difficult task of separating out the individual and matrimonial property. Very importantly, from the point of view of gender equality, the matrimonial estate includes investment income, endowment insurance and other property and benefits acquired during the marriage. Similarly, Article 13 of the 2003 Interpretation provides that any demobilization fee or similar payment made to a spouse leaving the People's Liberation Army is characterized as joint spousal property, to be divided equally at divorce. Another problematic area of matrimonial property relations arises from the fact that increasingly the estate involves property that is in part external to the family in that it relates to business dealings, debt, and equity and partnerships. Take, for example, the case of a partnership in which one of the divorcing spouses is a partner. Article 17 of the 2003 Interpretation stipulates that the other spouse may join the partnership if all the other partners agree. If such consent is not forthcoming, one of several solutions is permitted, including the purchase or return of the divorcing spouse's share, followed by a partitioning of the proceeds between the wife and husband. To take another example, in the case of family debt, should repayment be made by the party who originally borrowed the sum, or should it be repaid by both parties from their mutual property? The 2003 Interpretation offers a variety of answers, depending on the circumstances under which debt was incurred and used. Thus, a debt incurred by one spouse prior to marriage remains a personal debt unless it has been "spent on family living during the marriage" (Article 23) whereas a debt incurred during the course of the marriage is presumed to be the joint liability of the spouses unless otherwise agreed, with the spouse against whom a joint debt has been enforced able to recover the money from the other spouse by an agreement at divorce or a court order (2003 Interpretation, Article 23; 1980 China Marriage Law [as revised 2001], Article 31). The development of privately-owned housing, too, requires new rules for apportioning rights in the matrimonial home. Reflecting the shift from housing provided by the work unit to private ownership, Article 19 of the 2003 Interpretation provides that a home rented by one spouse before marriage but purchased by the couple post-marriage is characterized as joint property even if registered in the name of only one spouse. If there is a dispute between the parties on ownership or the value of the matrimonial home, a negotiated agreement is the preferred outcome, and the people's court is not allowed to make a decision on ownership. If the property is not sold and the proceeds divided (Article 20), the court may award occupation to one of the spouses based on actual circumstances of the case (Article 21 of China Marriage Law). The lack of detail and precision in these rules seems unlikely to assist the position of the divorcing wife, although some protection may be offered in the characterization in Article 22 of parents' contribution to the purchase price of a matrimonial property as a personal donation to their own child. With respect to work unit housing, Article 42 of the revised Marriage Law is confirmed by Article 27 of the 2001 Supreme People's Court Interpretation as encouraging a husband whose work unit has provided accommodation for a married couple to assist in continuing to provide such accommodation for the use of his erstwhile wife. Again, the lack of a firm requirement for such help is not likely to safeguard the position of the wife in these circumstances.