Decrees of separation

PUBLISHED : Monday, 17 October, 2011, 12:00am
UPDATED : Monday, 17 October, 2011, 12:00am


A lot of women may find themselves homeless owing to a new interpretation of China's marriage law by the Supreme People's Court of China.

The interpretation may also lead to an increase in the number in women filing for divorce in Hong Kong instead of the mainland, so as to receive better treatment, some lawyers say.

That's because the change centres on a critical issue in a nation of skyrocketing property values: who owns the home.

Up until August 13, when the Supreme Court delivered its interpretation, a couple's home was considered jointly owned. When a couple divorced, the value of the home was jointly divided.

Now, the court says, property bought by one person before marriage and registered in his or her name remains that person's property alone if the marriage falls apart. With nearly two million couples filing for divorce last year, according to government figures, the implications for Chinese society are significant.

'I think what is happening is a natural evolution for matrimonial law in China,' says Sharon Ser, managing partner at Withers. 'There's far greater recognition of property rights. 'It's taken a long time to develop for obvious reasons.'

One reason was to stop couples from entering into marriage simply to benefit from rising home prices.

'Some people want to get married because the other person has the property, and they want a share if it breaks down,' says Hao Wang, managing partner at Ray Yin & Partners in Beijing.

But buying property in China isn't a clear-cut enterprise. One reason is the soaring cost of property. Most young couples can't afford to buy a flat of their own. Typically, a husband's family contributes towards the down payment; the wife and her family may also contribute.

Most Chinese households-about 86 per cent, according to 2005 figures (the latest available) from the All-China Women's Federation - are headed by men. Property is typically registered in the man's name alone.

But often women, and their families, contribute to the purchase of a couple's new home.

'From my findings, there are a lot of women who are pouring a huge amount of money under the man's name,' says Leta Hong Fincher, a doctoral candidate in sociology at Tsinghua University in Beijing who is researching the role of gender in urban real estate markets in China. 'You are looking at large numbers of people contributing to the purchase of one home.'

The court, and lawyers, say women have nothing to worry about. If a spouse is not registered to the property but can prove they or their family contributed, they can be compensated. The problem is most women, and their families are unlikely to have documented proof, 'especially in a long marriage', says Rita Ku, an associate at Withers.

Also, their contribution to a household isn't always in a form that would be recognised by the courts, such as a mortgage payment.

'Even if [a] woman makes more money than a man, his money will tend to go to the mortgage payment and the women's to furniture, kids, or everyday expenses,' says Hong Fincher. 'The man can prove he's paying off the mortgage every month, but the woman is spending just as much supporting the household, [only] not to this fixed asset that's multiplying in value exponentially every year.

'The letter of the law is gender neutral, but you can't just look at the letter of the law, you have to look at social practice,' she says.

Some lawyers have countered that a prenuptial agreement can spell out how much each person will contribute. But that won't help couples seeking divorce now. Also, Wang notes, many women before marriage don't have the bargaining power to make an effective prenuptial agreement. 'In the end, it is still the women who will suffer in the divorce,' she says.

One result of the ruling is that women appear more determined to take financial charge of their lives. More than 60 per cent of women surveyed by Henan Business Daily, as reported by the non-profit Women's Watch-China in Beijing, say the ruling encouraged them to buy real estate on their own.

Hong Fincher concurs. Women 'are more determined to buy a house of their own in their own name,' she says. 'As a result of this law, you'll have young women entering the real estate market, and I believe the buying behaviour [of women] is going to change.'

Another change, some lawyers say, is that more women may file for divorce in Hong Kong. The practice, known as 'forum shopping,' was made famous last year by a couple born and married on the mainland but who lived in Hong Kong for more than 10 years before divorcing. The husband wanted a mainland divorce (in Shenzhen); the wife wanted it to take place in Hong Kong. Withers represented the husband in the case, who prevailed when the Hong Kong Court of Final Appeal ruled in his favour.

In Hong Kong, equality between man and woman in a marriage is acknowledged. A women's contribution to the accumulation of wealth in a household is considered, even if the woman stays at home, taking care of the children and the house, says Ku, adding: 'I think it is quite likely those wealthy men from mainland China would prefer to get divorced in mainland China; while women, they may want to divorce in Hong Kong.'