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UPDATED: December 6, 2010 NO. 49 DECEMBER 9, 2010
Should Premarital Property Be Personal?


The latest effort by the Supreme People's Court (SPC) of China to clarify the ownership of premarital property has become a hot topic for discussion.

The SPC issued on November 15 a draft judicial interpretation on the Marriage Law to solicit public feedback. The draft says "if one purchases real estate under his or her own name with a down payment before the marriage and the real estate remains solely in the name of the buyer after the marriage, the real estate will be determined as personal property in the event of a divorce with the unpaid part of the mortgage as a personal debt of the mortgagee. The part of the mortgage the non-mortgagee has paid jointly during the marriage will be paid back by the real estate owner." In simple language, a house purchased before a marriage is personal property. The money paid toward the mortgage by married partners should be proportionally compensated in divorce proceedings.

Those who support this say, without this provision, a person who hasn't made any contribution to the initial payments will be entitled to half of the property, which is totally unfair. The draft is a precaution against those who want to marry others for property and protects personal property.

Opponents warn the proposed new provision on the ownership of premarital property would severely violate women's rights and interests given the fact that in China, it's always the husband who pays for the home of a family. They say, since women usually invest much more in a marriage than men, such as raising children and giving up their careers to take care of a family, they should be favored by the law, which the draft has failed to do. What's more, it favors men's cheating. If they do, they can end up with "the other woman" and the house without losing anything. Experts suggest the provision should be combined with divorce compensation. When it comes to divorce, they say, many aspects should be taken into consideration such as the years spent together in marriage, the reasons for divorce and the contributions to the family.

The draft is open for public comment until December 15.


Ma Longsheng (Legal Daily): Many concerns may arise from the proposed provision on the ownership of premarital property. The most intolerable would be the possible arrogance of the property owner against rising housing prices. They may think, "I own the house, I have nothing more valuable to lose." As a result, they may ignore their responsibilities in marriage. Besides, the one who doesn't own the house will always feel like living in another's house, giving rise to a sense of insecurity. This kind of situation is harmful to marriage.

Property is not the fundamental element in marriage but is one of its important components. Specifying the ownership of premarital property is important, but encouraging responsible behavior in marriage is equally important. Therefore, revising the Marriage Law should be based on provisions to maintain the marriage.

Qiao Shan (Liaoshen Evening News): Legal stipulations on property ownership should be based on the principle of equality. Since women are usually seen as inferior, the law should favor them. But we don't see this kind of justice in the draft. On the contrary, it may cause further violations of women's rights and interests.

In the modern family structure in China, generally speaking, the husband pays for the house and the wife is financially responsible for other necessities in daily life. The proposed provision that "a premarital property belongs to the mortgagee" is very likely to be understood by most people like this: Ultimately the house belongs to the man and nothing belongs to the woman. Or at least we can say the chance the man has of retaining the house as his personal property is much higher than for the woman. When they are managing a home together, the house the man has bought is increasing in value all the time while household accessories the woman purchases gradually decrease in value. Women's rights and interests have obviously been violated.

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