(Sept. 19, 2011) The Supreme People's Court (SPC) of the People's Republic of China (PRC) issued its third interpretation on the application of the country's Marriage Law on August 9, 2011. Interpretation (III) took effect on August 13. (Wang Nan, SPC Promulgated Interpretation to Clarify Several Issues Regarding the Application of the “Marriage Law,” 31 ISINOLAW WEEKLY (Aug. 29 – Sept. 4, 2011), via email from [email protected]; Interpretation (III) of the Supreme People's Court on Several Issues Regarding the Application of the “Marriage Law of the PRC” [in Chinese] SPC website (Aug. 15, 2011).)
Interpretation (III) addresses a number of marital property issues, among them the following.
- The Interpretation states that immovable property purchased by a spouse's parents for that spouse during a couple's marriage, if the property right is registered in the recipient spouse's name, may be deemed a gift to that spouse under article 18, item 3, of the Marriage Law [on inherited or gifted property that belongs to one party of a married couple], and that spouse's separate property. In the case of immovable property purchased by the parents of both spouses, where the property right is registered under the name of one spouse, the immovable property may be regarded as community property according to the share of the contribution made by each spouse's parents, unless otherwise agreed upon by the spouses (Interpretation, art. 7, ¶¶ 1 & 2).
- If, before the marriage, one spouse had signed a contract for purchase of immovable property whereby that spouse made a down payment with his or her individual property and took out a bank loan, and during the marriage mortgage payments were made with community property and the immovable property was registered in the name of the spouse that made the down payment, at the time of divorce the spouses should reach agreement on the disposition of the property, according to the Interpretation. If the spouses are unable to agree, a people's court may rule that the property belongs to the registrant and that the unpaid mortgage payments are the individual liability of the registered owner. In regard to money paid by both spouses during the marriage for mortgage payments and their corresponding shares in the property's appreciation, the spouse who is the registered property owner should give compensation to the other spouse at the time of divorce, in accordance with the principles stipulated in article 39, paragraph 1, of the Marriage Law [on care of children and rights of women]. (Id. art. 10, ¶¶ 1 & 2.)
- If one spouse sells a jointly owned housing unit without the other spouse's consent and a third party purchases it without malicious intent, pays a reasonable consideration, and goes through the property right registration procedures, and the other spouse asserts a claim to recover the housing unit, the people's court will not support the claim. However, if a spouse's arbitrary disposition of a jointly owned housing unit causes a loss to the other spouse and at the time of divorce that other spouse seeks compensation for damages, the people's court should support the claim. (Id. art. 11, ¶¶ 1 & 2.)
- If, during the marriage, the spouses use community property to purchase a housing unit created through housing reform in the name of one spouse's parents, and the property right is registered under the parents' name, and if at the time of divorce the other spouse makes a claim for division of the housing unit as community property, the people's court should not support the claim. The payments made at the time of purchase of the housing unit may be disposed of as creditor's rights. (Id. art. 12.)
- A loan agreement concluded between husband and wife using the couple's joint property as a loan to one of the spouses who is engaged in individual business activities or who uses if for other individual matters should be regarded as an agreement made by both parties for disposition of the couple's joint property, and at the time of divorce, it may be handled according to the loan agreement that had been concluded. (Id. art. 13.)
Some of the other topics covered by Interpretation (III) include claims for damages, paternity, arbitrary termination of pregnancy, and child-rearing obligations, to wit:
A people's court will not accept cases involving claims of compensation for damages in a divorce, lodged by one or both parties, in which both spouses bear fault under article 46 of the Marriage Law [on the right to claim compensation by the non-errant party for damages in a divorce resulting from bigamy, cohabitation, family violence, abuse, or abandonment] (Id. art. 17).
If one spouse files a lawsuit seeking to confirm or deny that a parent-child relationship exists and has adduced the necessary evidence to prove the claim, and if the other spouse does not have evidence to the contrary and refuses to do a paternity test, the people's court may presume that the claim of the spouse seeking to confirm or deny a parent-child relationship is established. (Id. art. 2, ¶¶ 1 & 2.)
If a husband seeks compensation for damages claiming that his wife violated his right to have children by arbitrarily terminating a pregnancy, the people's court will not hear the case; if the two spouses have a dispute over whether or not to have children, resulting in irreparable alienation of affection, and mediation by the people's court is ineffective, the court should handle the case according to the provisions of article 32, paragraph 3(5) [on alienation of affection], of the Marriage Law. (Id. art. 9.)
If one or both parents refuse to undertake childrearing obligations during a marriage and their children who are minors or who are unable to independently support themselves seek payment of maintenance expenses, the people's court should support the claim. (Id. art. 3.)
(See also Marriage Law of the PRC, adopted and promulgated on Sept. 10, 1980, in effect on Jan. 1, 1981, as amended on Apr. 28, 2001, Database of Laws and Regulations of the National People's Congress of the PRC; Zhonghua Renmin Gongheguo Hunyin fa (2001 xiugai) [Marriage Law of the PRC (revised 2001)], PKULAW.CN; New Marriage Law Interpretation III Is Out, for the First Time Makes Clear That Parents' Real Estate Investment [for a Child] Belongs to [That] Individual [as a Spouse] [in Chinese], RENMIN WANG (Aug. 12, 2011).)