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

More importantly, although the down payment is paid by one person, after the marriage the mortgage is paid by both. Why is it the man can have a house after paying back the mortgage while the woman ends up with nothing after raising a family with much effort? Where does the draft put women's interests? If the woman buys the house, it's unfair to the man, too.

It is reported in Japan a mortgage is always lifelong. Women can get 70 percent ownership of the involved property in a divorce. On the face of it, this unfair stipulation may have effectively sustained Japanese families. The new provision on the ownership of premarital property in China, however, violates women's rights and interests, which is not in accordance with the widely accepted practice of protecting women and children.

Li Mingshun (www.xinhuanet.com): The new provision on the ownership of premarital property puts the cart before the horse, which are both heading in the wrong direction. It should have taken all property after marriage as common property in principle. If one person can verify his or her ex-spouse has made no contribution to property (for instance, with a prenuptial agreement), it can count it as personal property and as an exception.

As a whole, the new provision has the clear intention of protecting personal property, and there is far less intention of protecting common property in marriage.

Liang Derong (Bandao Metropolis News): Surveys by government agencies find possible disputes about property ownership are a major concern among people who are reluctant to get married. Meanwhile, the division of real estate has reportedly become the biggest obstacle in settling divorce cases. From my point of view, the new provision on the ownership of premarital property may create more and greater conflict between a married couple. It may put a disadvantaged person into a more disadvantaged situation.

In reality, the issue of home ownership is rather complicated. The common practice had been the husband covers the down payment and after marriage, the couple pays the mortgage together. In these circumstances, can the law still determine the home is a personal property? Will the other party of the marriage that helps to pay the mortgage have no hope? For some couples, after marriage, one is responsible for the mortgage while the other is financially responsible for other aspects of the relationship. Isn't it unfair to the other party of the marriage when the house goes to the person who pays the mortgage?

Therefore, it's unacceptable to indiscriminately determine a house purchased before marriage is personal property. More detailed regulations should be issued to avoid further problems.

Progressive significance

Bai Rui (Beijing Morning Post): The provision that whoever buys the house before marriage still owns the house in a divorce indicates progress in protecting personal property. It's a warning to those who marry for property and to improve their standard of living. It also fully assures those who are reluctant to get married for fears of their property being divided up with the ex-spouse in a divorce.

Lian Hongyang (Guangzhou Daily): The Marriage Law is the "basic law" for a harmonious family and stable society. Except for love and responsibility, property is the most important foundation for marriage, which makes adjusting the property ownership the main subject of the Marriage Law. The 1950 Marriage Law of China said, "Each person of the married couple has equal rights of ownership and disposal of family property." Then in 1980, the revised Marriage Law said property owned during the marriage was owned together by the couple and they have equal rights to the common property.

That's an equal right to the property in circumstances where people were not aware of personal property and the relevant legal system was underdeveloped.

Great changes have taken place in the past 30 years. Along with the development of a market economy come diversified sources and growing quantities of personal property. A more open society is adding to citizens' awareness of equality, independence and freedom. Laws closely related to marriage and family, such as the General Provisions of Civil Law, Inheritance Law, Law on the Protection of Minors and the Law on the Protection of Rights and Interests of Women, have been progressively implemented and improved. These changes have all impacted marriage and family. They suggest financial relationships in a family should be appropriately adjusted and control over personal assets should be respected. The revised Marriage Law that took effect in 2001 has made a huge breakthrough in this field compared to older versions.

The revised Marriage Law says a contract regime has superior validity to the previous property system, which is unprecedented. But without a contract, the following situation may occur: One person works very hard to pay the down payment, and the mortgage and the house will become common property after marriage, half of which may easily be taken away by the ex-spouse in a divorce. When affording a home becomes a burden for everyone in the society, it produces a group of people who are afraid of getting married. It's necessary the Marriage Law should clarify this. By defining premarital property as the personal belongings of the mortgagee and obliging the mortgagee to appropriately compensate the ex-spouse after considering the market price of real estate when a divorce occurs and the proportion of mortgage they have paid together in the total house value," this problem can be effectively solved.

The new judicial interpretation of the Marriage Law is intended to allow the married couple to independently manage their own property. It overturns the traditional outlook of family and marriage in China to emphasize the spirit of contract and respect of personal property. In all, the legal document improves financial independence of people in marriage. If a marriage ends up in divorce, lots of conflict will be avoided. If people want to get married, they must have the simple intention rather than being involved because of the property. The advantages it brings to family stability and social harmony outweigh its disadvantages.

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