Property

Costly divorce

New marriage law is all about real estate

Till mortgage us do part

English politician and lawyer Sir Edward Coke, famously declared that “a man’s house is his castle, and each man’s house is his safest refuge.”

That was in 1628. But until last month, his view was pretty much true for Chinese women, too.

No matter who had bought the family home, in cases of divorce the property was to be split equally between man and wife, according to the 1980 Marriage Law.

This reflected the widely-held principle that a marriage and family is a shared economic unit, as well as one of affection.

But when that house starts to cost, on average, about 22 times a person’s annual income, as it does in China today, the stakes are much higher.

And on August 13, many Chinese women (and a few men) woke to find their own rights to safe refuge gone forever.

A new interpretation of the law had ruled that a family home bought by one person or their parents, prior to marriage, whether outright or mortgaged, should revert to the sole owner upon divorce. Passed by the Supreme Court in Beijing, the new rules are supposed to be gender-indifferent. But strong traditions that the man should be the head of the household (and homeowner) mean he usually buys the family home.

Public debate on the topic has been stormy, with millions of ordinary folk suddenly amateur lawyers and sociologists.

The issue is whether individual property rights or economic equality is the more important principle in a marriage. Sina’s Weibo, a homegrown Twitter equivalent, has 1.4 million posts on the matter already.

Experts say the new rules are embedding China’s obsession with property at the centre of marriage discussions, reflecting the massive increase in real estate prices over the last decade.

“This basically amounts to the construction of individual, capitalist-style property law in the heart of China’s families,” Zhao Xiaoli, a law professor at Tsinghua University, told the Southern Weekend newspaper.

But Yang Lixin, a law professor at Renmin University in Beijing, whose views influenced the Supreme Court, says there is “no conflict” because marriage law isn’t an exception, and should bend to property law, which states that property belongs to the person in whose name it’s registered.

“Of course it belongs to that person, and isn’t communal!” said Yang, adding he had bought a flat himself for his daughter (no mention of who’s name is on the deed, WiC notices).

For decades, no one really had any property to gain – or to lose. By 1980, when a new Marriage Law was promulgated, that was beginning to change. In 2001, the last time the law was amended, property was already an asset to be reckoned with.

Today, men complain that women won’t marry them unless they own a flat, and families worry that they might lose their life savings if their child divorces. Women say it’s only fair that they have more security, as they bear children and take more care of elderly relatives, on top of holding down day jobs.

Some husbands have agreed to add their wives to the title deed of the family home. Others are holding out. In mid-August, Nanjing’s Modern Express reported an early case of divorce over the issue. The couple told journalists they hadn’t been getting on since March, when they had married. But the wife’s request to add her name to the husband’s property had been the final straw, the man said.

It’s too early to judge the long-term impact of the legal changes, but women may be well-advised to join men in the struggle to buy their own home. One warned as much in a post to Sina Weibo: “Women, work hard, earn money and buy your own home. After this, a man is insubstantial as a cloud.”

Or as Sir Edward might have said, getting a castle of your own is your best bet.


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