Debate: Marriage Law

By Gu Jun (China Daily) Updated: 2011-08-22 07:39

Li Yingchun

Explanation is an expansion of law

Soon after the Supreme People's Court issued the latest judicial explanation of the Marriage Law, netizens began heated discussions with the majority calling it a "boon for men" because it protects the advantaged party in marriage and a "curse for women" because it hurts the disadvantaged.

Every judicial explanation of the Marriage law has sparked debates. As an institution, marriage has gradually become a mixture of love, desire, rights, obligations, property, interests and even power and fame. As a result, the Marriage Law has followed the changes and considered all aspects of a conjugal life and property division. The law has constantly expanded and enriched along the borderline of marital life.

Laws are always made on the basis of existing problems. That is why every law, no matter how perfect it is, will face challenges from problems that emerge after its passage. It is quite normal for netizens to raise hypothetical new phenomena and questions to criticize the latest judicial explanation. But arguments at the superficial level always tend to cover up the more substantial issues.

The best way to judge legislation and judicial acts is to resort to the general knowledge of law. Judicial explanations are given by the supreme judicial authority on applicable laws. Several articles related to house property in the latest explanation of the Marriage Law seem to be the most controversial because they have raised the highest number of questions. The media's simplified version is "the party (husband or wife) that makes the down payment will get the house after divorce" and "a party has no right to divide a house bought by his/her spouse's parents and registered under their offspring's name after marriage". These are, in fact, misinterpretations.

First, the articles are to protect the rights of husband and wife both rather than the advantaged party in a marriage because the advantaged party could be the woman. Second, hasty conclusions have always resulted from incomprehensive understanding of legal affairs, and whether or not those explanations are appropriate should be judged by the Marriage Law.

The Marriage Law says pre-marital property should be owned by one party. If one party makes the down payment before the marriage and pays for the house through a bank loan, he/she has the right to the property, which means, even though there is no further judicial explanation, the house is supposed to be one party's personal property. As for the appreciation in the price of the house after marriage, the other party's practical participation in repaying loans should be taken into consideration and fair and reasonable compensation made. The explanation is also a supplement that complies with the principle of law.

According to the Marriage Law, property inherited by or bestowed to one party should belong to that party only. The explanation that one party has no right to divide a house bought by the other party's parents and registered under the other party's name after marriage further clarifies the legal clauses.

In other words, the so-called controversial judicial explanations are mere expansions of relevant clauses of the Marriage Law, rather than running counter to the original intention of the law.

The article first appeared in Chengdu Business Daily.