A house divided

PUBLISHED : Tuesday, 30 August, 2011, 12:00am
UPDATED : Tuesday, 30 August, 2011, 12:00am


The Supreme People's Court's latest judicial interpretation of the mainland's Marriage Law has laid bare gender equity as a political issue. But even when confronted with it, many Chinese people prefer to treat it as invisible. Some feminist groups have tried to organise protests, but they kept these low-key for fear of coming across as shrill and demanding.

The law recognises the shared ownership of assets between husband and wife. And, like other countries with similar laws, it has to deal with the disputes over the splitting of assets that often follow the breakdown of a marriage. Before the latest interpretation, the rule was that all assets acquired after marriage would be jointly owned, and personal assets before marriage belonged to the individual, though if they were not notarised in a pre-nuptial agreement they risked being treated as shared assets.

Soaring real estate prices have made property an important component in a marriage; increasingly, it has become a key condition for getting married, and a major point of contention in a divorce. Thus, with this judicial interpretation that spells out clearly the ownership of a marital home, the courts are hoping to rid themselves of a major headache.

Two clauses are the most controversial. The first is that the person who made the down payment for the marital home shall own it, and benefit from any appreciation in its value thereafter. The spouse who contributed towards its mortgage shall be compensated, though the rule does not say how or how much. Second, a property that was a gift from one person's parents after marriage shall belong to that person. Previously, all gifts to a couple - whether a property or a box of chocolates from a friend - belonged to the couple, unless otherwise specified.

A spokesperson for the Supreme People's Court said the interpretation was made to protect personal assets. Many young people today use their parents' savings to buy a home to get married. If, in the event of a divorce, the property was split equally between the spouses, it would be extremely unfair to the parents, the reasoning goes.

The interpretation is seen as protecting men's interests, since it is the men and their family who generally pay for the property, before or after a marriage. Besides, some people say, it is time something was done to tackle the 'materialistic' attitude of many young women; these gold-diggers would learn to marry for love, and not for money.

The more undeveloped a country or region, the higher the proportion of men who buy property. The reason is simple: in these places, men's income is far higher than women's. Studies have shown that even with the same education, in the same job, or for the same amount of work, the man earns more than the woman. In many cases, the women in fact have no income, and are completely dependent on the men not just for the roof over their head, but for every single expense. Does that mean the women sit idle? Of course not - they are busy raising children, cooking, washing and cleaning the house. But their labour earns no money. In most parts of rural China, not only is their labour unpaid, women cannot buy property even if they have the money, because they are not entitled to village land of their own. With a rule for shared ownership of marital assets, the family is being treated as an economic unit. This is seen by some as a channel for women to be compensated in some small way in a patriarchal society that routinely exploits their labour. This compensation does not make the system fair, though it makes it fairer. But, in the name of protecting personal assets, the new interpretation is in fact blocking this small channel of redistribution.

In an unfair system that protects men's interests to the detriment of women's, it is absurd to demand that the women should marry for so-called true love. Without parity in treatment, what should love be based on?

Is a system of shared marital assets unfair to the gift-bearing parents, then? To be honest, if the parents could not afford the gift of a home, they should not give it. The judicial interpretation has effectively turned a gift into a lease of sorts. Such protection will only further distort already distorted property prices; it will neither rein in women's 'gold-digging behaviour', nor property prices, as some people are hoping.

The latest judicial interpretation has clearly departed from the guiding principle of the Marriage Law. Yet, this amendment that affects millions of families has become law without even passing through the National People's Congress; it was decided by the few powerful men in our highest court. Of course, this elite club - with its limited women's representation, and in a country that has yet to see a large-scale feminist movement of its own - will not think its action is out of place.

Chang Ping is a current affairs commentator writing on politics, society and culture. This commentary is translated from Chinese