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The Supreme People’s Court of China recently made public the latest interpretation on applying the Marriage Law, which is meant to provide a judicial basis for courts. The interpretation consists of 19 new items and is valid from August 13 this year.
One of the items 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 short, a house purchased before a marriage is personal property. The money paid toward the mortgage by married partners should be paid back in the same ratio in divorce proceedings.
Another item says, “if the parents of one of the married couple buy a house for their child and the property ownership certificate
is solely registered to the child, the house will belong to the child in the event of a divorce. If both parents of the couple buy a house for the couple, the house will be split proportionately to the amount of money parents spent buying the house.”
These two items, which are directly related to possession of a family house in the event of a divorce, have attracted the most attention, against the backdrop of soaring housing prices and high divorce rates in China.
The divorce rate in China has kept rising in recent years, with an average annual increase of 7 percent. In 2010, 2.67 million couples divorced. Accordingly, divorce cases in courts have increased. The most frequent cases concern two problems: the ownership of mortgaged houses and houses gifted by parents during marriage. Thus, the judicial interpretation of the Marriage Law has been issued after three years of preparation and soliciting of public opinion.
As soon as the interpretation was released, it triggered heated discussion in society. People who approve it say they think married couples should be equal partners. The new interpretation shows the law pays greater attention to individual rights than previously.
On the other hand, opponents say they think the law is unfair to women, who are already in a more disadvantaged position in marriage. Also, a family shouldn’t be all about money, it should also be about love. Business rules are therefore not suitable.
Supporters
Yu Ge (http://www.eeo.com.cn): The judicial interpretation of the Marriage Law is like a big earthquake in all families in China.
The interpretation shows the new moral orientation of China’s Marriage Law. In the past, the law paid more attention to family ethics while now it is paying and will pay more attention to personal rights. Two people in marriage should first be two individuals and then a married couple. The individual’s right is superior to the marriage. It seems harsh but it’s the only way to protect people’s individual rights to the greatest extent. The new interpretation of the Marriage Law reflects the new concept of the law, from defining a marriage by ethics to regulating it by contract.
News reports say these 19 items of the judicial interpretation will change people’s viewpoints about marriage, which is bound to be a good thing.
Married couples should be equal partners to each other. The parents of the man struggle for their whole life and buy a house for their son. If the woman can take half of the house away in the event of a divorce, isn’t that unfair on the man and his parents?
Regulating the rights of both sides in a marriage may sound unacceptable to those who think marriage is all about romance, but it should be the main purpose of the Marriage Law. If you think it’s a problem of the law, you are mistaken. What has gone wrong may be your view of marriage or even the world.
Wang Guorong (Qianjiang Evening News): The tradition in China is the man buys the family house. Therefore, parents spend their lifetime savings on the house for the new couple and worry the daughter-inlaw will get half of the house if a divorce happens. It’s really a sad thing Chinese women now take having a house as a premise for marriage and fight for the house in the event of a divorce. Therefore, I applaud the new interpretation of the Marriage Law as it sets down clear lines about the ownership of the house in a divorce, which will reduce the number of cases of divorced couples fighting for the house.
As the divorce rate in China increases, greater uncertainty has been added to marriage. Because the ownership of the family house is a difficult point in divorce cases, it’s good the new interpretation clarifies it. From this perspective, the interpretation is bound to change Chinese people’s attitude toward marriage. More girls will be willing to choose men with great potential and work with them to gain a happy and wealthy future instead of marrying the second generation of a rich family. The first kind of marriage will last longer and be happier.
People argue the new interpretation protects the rights of the more powerful side of the marriage and harms the interests of the disadvantaged person. I don’t agree with this argument. In marriage, both sides should be equal life partners and there shouldn’t be advantaged sides or disadvantaged sides. Both sides should fight for a better life together.
Miao Miao (People’s Daily): The purpose of the Marriage Law is ensuring people’s freedom of marriage, including the freedom of being married as well as becoming divorced. The new interpretation helps realize the purpose of the law to a large extent as it specifies people’s rights in a family, especially rights relating to the family house. Opponents
Li Kejie (http://www.xinhuanet.com): I don’t approve of the new judicial interpretation of the Marriage Law. Marriage and family are not like a company and shouldn’t merely be a combination of assets but should be an integration of familial love and money. In marriage, love is complicated and can’t be easily calculated. Besides, the contributions family members make to the family can’t be measured according to only money. So we shouldn’t see marriage as a big shopping mall and shouldn’t apply the business rule of “whoever makes the investment gains the profit” to marriage. Otherwise, it will benefit the more powerful side and do harm to the disadvantaged.
The new interpretation has a strong sense of business and shows the rule of the world of capital. It doesn’t show enough consideration for the factor of love in a family. As a matter of fact, it puts women in a more disadvantaged place than they already are.
Besides, it neglects a major social problem, supporting the aged. In urban and rural areas, the problem of supporting the aged is growing more and more urgent. If the house belongs to one party only, should the obligation of supporting the aged be only on the shoulders of that party? It will be a huge problem in determining who supports the aged in the event of a divorce. We can imagine if a house only belongs to one party and the other party is only a temporary resident of the house, why should the less favored and disadvantaged party still be under an obligation to support the aged of both sides? If things continue this way, people will gradually have less and less sense of family responsibility and become more distant from each other.
When dealing with family and marriage issues, the law shouldn’t emphasize the factor of family love too much, neither should it emphasize the ownership of assets too much. It should find a balance between these two.
Xu Feng (Guangzhou Daily): The new judicial interpretation will cause more problems than it solves.
First, from now on, women will likely demand they be added to the property own- ership certificates as a premise for getting married, which will cause greater chaos in divorce cases.
Second, it will give men much more protection than it should. On the surface, it brings fairness, but it entails more hidden unfairness. Men and women have different positions in family, and different obligations and rights. They make complementary contributions to the family. In China, the usual convention is women give birth to children, educate children and do the family chores. These invisible contributions they make to the family will inevitably give them less of a fortune after marriage. If this kind of contribution is not taken into consideration while dividing family assets, including any premarital house, it will be totally unfair to women.
Finally, it has the more apparent flaw of being ambiguous on the issue of rural people’s housing problems although it’s specific on regulating the ownership of the family house for urbanites. In China, there are many more rural residents than urban people. This is another big flaw of the new interpretation.
Li Ying (http://lady.163.com): I don’t support the new judicial interpretation. It’s a men’s law or a law which protects the powerful but does harm to the weaker side.
We don’t deny legislators should be fair and just, but they shouldn’t overlook the characteristics of different groups. When dealing with women’s disadvantaged status in families, legislators should give them greater protection to realize true equality in families and society. The current situation is that if men cheat on women, they can still have the house and few costs in a divorce.
I don’t think laws should be harsh. By showing respect and pursuing justice through different means, it should show warmth to all members in society. The judicial interpretation of the Marriage Law should have shown a more humane spirit rather than reducing the financial cost of men cheating on women.
One of the items 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 short, a house purchased before a marriage is personal property. The money paid toward the mortgage by married partners should be paid back in the same ratio in divorce proceedings.
Another item says, “if the parents of one of the married couple buy a house for their child and the property ownership certificate
is solely registered to the child, the house will belong to the child in the event of a divorce. If both parents of the couple buy a house for the couple, the house will be split proportionately to the amount of money parents spent buying the house.”
These two items, which are directly related to possession of a family house in the event of a divorce, have attracted the most attention, against the backdrop of soaring housing prices and high divorce rates in China.
The divorce rate in China has kept rising in recent years, with an average annual increase of 7 percent. In 2010, 2.67 million couples divorced. Accordingly, divorce cases in courts have increased. The most frequent cases concern two problems: the ownership of mortgaged houses and houses gifted by parents during marriage. Thus, the judicial interpretation of the Marriage Law has been issued after three years of preparation and soliciting of public opinion.
As soon as the interpretation was released, it triggered heated discussion in society. People who approve it say they think married couples should be equal partners. The new interpretation shows the law pays greater attention to individual rights than previously.
On the other hand, opponents say they think the law is unfair to women, who are already in a more disadvantaged position in marriage. Also, a family shouldn’t be all about money, it should also be about love. Business rules are therefore not suitable.
Supporters
Yu Ge (http://www.eeo.com.cn): The judicial interpretation of the Marriage Law is like a big earthquake in all families in China.
The interpretation shows the new moral orientation of China’s Marriage Law. In the past, the law paid more attention to family ethics while now it is paying and will pay more attention to personal rights. Two people in marriage should first be two individuals and then a married couple. The individual’s right is superior to the marriage. It seems harsh but it’s the only way to protect people’s individual rights to the greatest extent. The new interpretation of the Marriage Law reflects the new concept of the law, from defining a marriage by ethics to regulating it by contract.
News reports say these 19 items of the judicial interpretation will change people’s viewpoints about marriage, which is bound to be a good thing.
Married couples should be equal partners to each other. The parents of the man struggle for their whole life and buy a house for their son. If the woman can take half of the house away in the event of a divorce, isn’t that unfair on the man and his parents?
Regulating the rights of both sides in a marriage may sound unacceptable to those who think marriage is all about romance, but it should be the main purpose of the Marriage Law. If you think it’s a problem of the law, you are mistaken. What has gone wrong may be your view of marriage or even the world.
Wang Guorong (Qianjiang Evening News): The tradition in China is the man buys the family house. Therefore, parents spend their lifetime savings on the house for the new couple and worry the daughter-inlaw will get half of the house if a divorce happens. It’s really a sad thing Chinese women now take having a house as a premise for marriage and fight for the house in the event of a divorce. Therefore, I applaud the new interpretation of the Marriage Law as it sets down clear lines about the ownership of the house in a divorce, which will reduce the number of cases of divorced couples fighting for the house.
As the divorce rate in China increases, greater uncertainty has been added to marriage. Because the ownership of the family house is a difficult point in divorce cases, it’s good the new interpretation clarifies it. From this perspective, the interpretation is bound to change Chinese people’s attitude toward marriage. More girls will be willing to choose men with great potential and work with them to gain a happy and wealthy future instead of marrying the second generation of a rich family. The first kind of marriage will last longer and be happier.
People argue the new interpretation protects the rights of the more powerful side of the marriage and harms the interests of the disadvantaged person. I don’t agree with this argument. In marriage, both sides should be equal life partners and there shouldn’t be advantaged sides or disadvantaged sides. Both sides should fight for a better life together.
Miao Miao (People’s Daily): The purpose of the Marriage Law is ensuring people’s freedom of marriage, including the freedom of being married as well as becoming divorced. The new interpretation helps realize the purpose of the law to a large extent as it specifies people’s rights in a family, especially rights relating to the family house. Opponents
Li Kejie (http://www.xinhuanet.com): I don’t approve of the new judicial interpretation of the Marriage Law. Marriage and family are not like a company and shouldn’t merely be a combination of assets but should be an integration of familial love and money. In marriage, love is complicated and can’t be easily calculated. Besides, the contributions family members make to the family can’t be measured according to only money. So we shouldn’t see marriage as a big shopping mall and shouldn’t apply the business rule of “whoever makes the investment gains the profit” to marriage. Otherwise, it will benefit the more powerful side and do harm to the disadvantaged.
The new interpretation has a strong sense of business and shows the rule of the world of capital. It doesn’t show enough consideration for the factor of love in a family. As a matter of fact, it puts women in a more disadvantaged place than they already are.
Besides, it neglects a major social problem, supporting the aged. In urban and rural areas, the problem of supporting the aged is growing more and more urgent. If the house belongs to one party only, should the obligation of supporting the aged be only on the shoulders of that party? It will be a huge problem in determining who supports the aged in the event of a divorce. We can imagine if a house only belongs to one party and the other party is only a temporary resident of the house, why should the less favored and disadvantaged party still be under an obligation to support the aged of both sides? If things continue this way, people will gradually have less and less sense of family responsibility and become more distant from each other.
When dealing with family and marriage issues, the law shouldn’t emphasize the factor of family love too much, neither should it emphasize the ownership of assets too much. It should find a balance between these two.
Xu Feng (Guangzhou Daily): The new judicial interpretation will cause more problems than it solves.
First, from now on, women will likely demand they be added to the property own- ership certificates as a premise for getting married, which will cause greater chaos in divorce cases.
Second, it will give men much more protection than it should. On the surface, it brings fairness, but it entails more hidden unfairness. Men and women have different positions in family, and different obligations and rights. They make complementary contributions to the family. In China, the usual convention is women give birth to children, educate children and do the family chores. These invisible contributions they make to the family will inevitably give them less of a fortune after marriage. If this kind of contribution is not taken into consideration while dividing family assets, including any premarital house, it will be totally unfair to women.
Finally, it has the more apparent flaw of being ambiguous on the issue of rural people’s housing problems although it’s specific on regulating the ownership of the family house for urbanites. In China, there are many more rural residents than urban people. This is another big flaw of the new interpretation.
Li Ying (http://lady.163.com): I don’t support the new judicial interpretation. It’s a men’s law or a law which protects the powerful but does harm to the weaker side.
We don’t deny legislators should be fair and just, but they shouldn’t overlook the characteristics of different groups. When dealing with women’s disadvantaged status in families, legislators should give them greater protection to realize true equality in families and society. The current situation is that if men cheat on women, they can still have the house and few costs in a divorce.
I don’t think laws should be harsh. By showing respect and pursuing justice through different means, it should show warmth to all members in society. The judicial interpretation of the Marriage Law should have shown a more humane spirit rather than reducing the financial cost of men cheating on women.