Debate: Marriage Law

Updated: 2011-08-22 07:39

By Gu Jun (China Daily)

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Does the latest judicial explanation of the Marriage Law favor men? Three experts come up with divergent interpretations.

Gu Jun

Another example of income divide

Besides the old civil service examination and now the national college entrance exam, Chinese people can enter a higher social rank by other means as well. And marriage remains a universal way for a low-ranking individual to ascend higher, even though such a marital match does not necessarily entail a happy ending.

Indeed, people can get "upgraded" by marrying someone more socially superior and share the spouse's social resources, including his/her fortune. In this sense, marriage is a macrocosm of the social equality mechanism, although such "social climbing" and resource sharing is despised by many and believed to corrupt marriages.

However, the fact is, money worship does not arise from mere views of value but from social inequality. In a society where only a small number of people control most of the resources, the majority of social members are stuck in a lower status one generation after another and rack their brains to "climb up".

The increasingly common mindset of "no money, no marriage" reflects a widening wealth disparity, and it seems that our society fails to come up with effective measures that would make "low-ranking" individuals give up their efforts to improve their social status through marriages and resign themselves to fate.

But recently there has risen a "barrier" that may keep "low-ranking" individuals where they belong. Eight months after it stopped soliciting public opinions, the Supreme People's Court issued the new judicial interpretation of the Marriage Law, stipulating that real estate mortgaged and registered in the name of one party should be acknowledged as that party's property in a divorce case, even if both parties repay the loan together within their marital relationship.

Besides, real estate bought by parents and registered under their offspring's name remains the personal property of the offspring even after he/she gets married. In other words, one party's real estate, a most important form of private property, will not go through any title transfer after marriage.

It is not an exaggeration to say that the stipulation almost crushes the dreams of many who wish to improve their social status through marriage. They can still marry estate owners, but once they get a divorce, they should pack their bags and leave homeless.

In ancient times, different tribes established or enhanced alliance through marriages. In modern times, people alleviate social status through marriage. Marriage per se has its inborn utility, which cannot be denied and killed by moral preaching.

With social equality still being an ideal, people become socially mobile through marriage, but the divorce property rules of the new judicial explanation downgrades the utility of marriage. The stronger party in marriage with real estate ownership undoubtedly gets the upper hand, because he/she has no need to worry about property title transfer coming with the dissolution of marriage.

Real estate is currently taking up a large proportion of family property, but since the new judicial explanation stipulates that real estate acquired before or within a marital relationship will not be considered mutual property in a divorce case, other forms of family property will probably take a larger proportion. If that is the case, one may wonder whether the Supreme People's Court will update the judicial explanation so that it can cover other forms of family property and prevent any title transfer in a divorce case as well.

For instance, what if one party's income is much higher than the other's? Is a new judicial explanation needed to clear each party's income and savings so that both parties can retain respectively what they have saved within their marital relationship? At that point, people should realize that wealth disparity not only exacerbates the gulf between classes but also splits a family apart, forcing the weaker party in a marriage to accept to his/her vulnerability.

While in the current phase of social transformation, Chinese people can easily sense that the more powerful class, property owners for instance, often overrides the grassroots not only in different aspects of daily life, but also in the legal field. And the new divorce property rules furnish nothing but a new example.

The author is a professor of sociology at Shanghai University. The article first appeared in Oriental Morning Post.


Li Yingchun

Explanation is an expansion of law

Soon after the Supreme People's Court issued the latest judicial explanation of the Marriage Law, netizens began heated discussions with the majority calling it a "boon for men" because it protects the advantaged party in marriage and a "curse for women" because it hurts the disadvantaged.

Every judicial explanation of the Marriage law has sparked debates. As an institution, marriage has gradually become a mixture of love, desire, rights, obligations, property, interests and even power and fame. As a result, the Marriage Law has followed the changes and considered all aspects of a conjugal life and property division. The law has constantly expanded and enriched along the borderline of marital life.

Laws are always made on the basis of existing problems. That is why every law, no matter how perfect it is, will face challenges from problems that emerge after its passage. It is quite normal for netizens to raise hypothetical new phenomena and questions to criticize the latest judicial explanation. But arguments at the superficial level always tend to cover up the more substantial issues.

The best way to judge legislation and judicial acts is to resort to the general knowledge of law. Judicial explanations are given by the supreme judicial authority on applicable laws. Several articles related to house property in the latest explanation of the Marriage Law seem to be the most controversial because they have raised the highest number of questions. The media's simplified version is "the party (husband or wife) that makes the down payment will get the house after divorce" and "a party has no right to divide a house bought by his/her spouse's parents and registered under their offspring's name after marriage". These are, in fact, misinterpretations.

First, the articles are to protect the rights of husband and wife both rather than the advantaged party in a marriage because the advantaged party could be the woman. Second, hasty conclusions have always resulted from incomprehensive understanding of legal affairs, and whether or not those explanations are appropriate should be judged by the Marriage Law.

The Marriage Law says pre-marital property should be owned by one party. If one party makes the down payment before the marriage and pays for the house through a bank loan, he/she has the right to the property, which means, even though there is no further judicial explanation, the house is supposed to be one party's personal property. As for the appreciation in the price of the house after marriage, the other party's practical participation in repaying loans should be taken into consideration and fair and reasonable compensation made. The explanation is also a supplement that complies with the principle of law.

According to the Marriage Law, property inherited by or bestowed to one party should belong to that party only. The explanation that one party has no right to divide a house bought by the other party's parents and registered under the other party's name after marriage further clarifies the legal clauses.

In other words, the so-called controversial judicial explanations are mere expansions of relevant clauses of the Marriage Law, rather than running counter to the original intention of the law.

The article first appeared in Chengdu Business Daily.

Debate: Marriage Law

Pang Li/China Daily


Shan Shibing

It could revive the spirit of marriage

On Aug 12, the Supreme People's Court issued a judicial explanation of the Marriage Law, which is aimed at settling marital disputes. The judicial explanation says that "after divorce, a house (as property) will belong to the person who has paid the down payment for it", and a "daughter-in-law has nothing to do with a house bought by her parents-in-law for their son". This has triggered a heated public debate.

Some people say the judicial explanation is good news for men, but undermines the interests of women, who in most cases are the disadvantaged party. Others suppose it encourages a "Dutch treat" style of marriage and could change youths' concept of choosing a spouse. It is welcome if it makes more people marry for love, and not wealth.

"A person should not marry to own a house" is the concept that the new judicial explanation of the Marriage Law encourages. The already sky-high and still rising housing prices have forced many people to focus more on wealth and less on love and emotion when it comes to marriage. If it can help people find their true soulmates, it will be a triumph for love and the sacred institution of marriage.

It is sad to see so many people pay more attention to their personal interests even in conjugal life.

A house is an important part of our existence today, especially because it is associated with hukou (house registration) and education of the next generation. But it is a pity that people obsessed with owning property leave love and emotion on the wayside even when get married.

Gender discrimination has declined greatly today, because women can enjoy economic independence as much as men, and build careers and lead a life of dignity. Social development has reached such a level that it is discriminatory to see women as weak. It is self-discriminatory for a woman to depend on a man to change her life. It shows that she lacks the spirits of independence.

Human beings are emotional as well as rational, so is the new judicial explanation of the Marriage Law. The explanation should make people realize that from now on it will be difficult for anyone to get rich through marriage or divorce. If the judicial explanation compels people to regard marriage as a bond of love, and love alone, so be it.

The divorce rate is increasing, and increasing fast. Many couples fight bitter battles over property, especially houses, when they file for divorce. There seems to be a running duel between love and material benefits. What has wealth got to do with love and marriage? And will owning a house and losing a spouse bring real happiness?

At a time when society is suffering from cultural rupture, and it is becoming even harder for people to love and trust each other, it is not surprising that the institution of "family" faces unprecedented challenges and could even lose its prime position in society.

So if the new judicial explanation forces people to choose their life partners out of love and not for wealth, it would be a welcome relief. This should be good news for men and women both. A marriage should not be based on greed or on the thought of leading a relaxed and luxurious life. It should be a coming together of two persons, complete with their bodies, senses, minds and their souls.

The article first appeared in Chongqing Times.


(China Daily 08/22/2011 page9)