View

Debate: Marriage Law

(China Daily)
Updated: 2011-01-04 08:09

Does the new judicial interpretation of the Marriage Law favor husbands? "Yes", says aprofessor of women's studies, "no", says a lawyer who specializes in marriage disputes.

Luo Huilan

Judicial draft discriminatory to women

The draft of the new judicial interpretation of the Marriage Law has sparked a heated debate on property division between husband and wife in case of a divorce. Though the articles on property division seem to embody the principle of equality, they actually are discriminatory to women.

But what exactly constitutes discrimination against women? The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted by the United Nations in 1979, defines it comprehensively: " any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."

Three decades have passed since the UN adopted the convention, but women are still discriminated against directly or indirectly, openly or implicitly. Even some laws that seem neutral can be discriminatory to women in reality, because the malaise has infiltrated every aspect of social life from our customs and practices to cultures and behavioral patterns.

Elimination of this deep-rooted discrimination in the near future seems almost a mission impossible, because the difference in the role and status of men and women can often make gender equality advocated by law inequality in reality.

Some controversial articles on property division in the draft are good examples of such discrimination. According to article 11, which deals with divorce cases, real estate should remain the property of one spouse if he/she has signed the sales agreement before marriage, made the down payment and repaid the bank loan from his/her earnings, and has the property registered under his/her name. This article is advantageous to men and inconsistent with the CEDAW.

On property relations between husband and wife, the CEDAW is clear about equal rights of both spouses on the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or in return for value consideration. Here, "free of charge" means the huge amount of housework that women do. Article 11, however, does not credit women with their free-of-charge work while dividing property.

China was a feudal society dominated by men for more than 2,000 years, when only men could inherit real estate. Women were financially dependent on men through marriage. This laid the foundation of power relations between husband and wife. Even today, the stereotype that a man makes house and a woman makes home refuses to die. This gives a man the upper hand in controlling family resources. Because of lack of schooling and comparatively low income, women are compelled to play the role of housewives, and thus do most of the household chores. Tied between family and career, some are even forced to become full-time housewives.

This traditional gender-based division of labor obscures the contribution of women, when in reality they do more work than men. A survey in Yunnan province has shown that although women spend 50 minutes less than men at workplaces, they do almost three hours of housework a day, nearly two times more than men. Though women spend a lot of time and energy on humdrum, repetitive, non-creative but essential work, their contribution is hardly measured in terms of economic and social benefits. Worse, stuck in housework, women find it difficult to maintain their social competitiveness and often find difficulty in securing jobs.

No wonder, since the 1960s the international community has turned its attention to evaluating housework done by women. Some feminists argue that housework should be included in a country's GDP to recognize women's contribution to development.

Earlier this year, Zhang Xiaomei, a member of the National Committee of the Chinese People's Political Consultative Conference, said men should pay their wives a salary for housework. Although her proposal was not approved, it forced people to think seriously about the value of housework and review the traditional division of labor.

The draft article, however, does not consider the negative effects of gender-based division of labor. Such a sexual stereotype has plagued family and social life for long.

In rural areas, men have the final say in family matters, and all essential family assets such as house, car and even bank deposits, are registered under men's names, and women are forced to play the role of only mother and wife, and farm worker.

Their labor, though substantial, hardly gets recognition. Without good education, they have to rely heavily on their husbands. In case of divorce, a woman is driven out of her husband's life, home and family, and finds herself an alien even in her parents' home. No wonder, the new interpretation of the Marriage Law has aroused concern among women.

Today, many women help their husbands financially to repay bank loans. And though the new interpretation makes room for women to get compensation based on the proportion of loan they pay and the rise in the price of real estate, the truth is that they lose the initiative in the fight for property and are forced to wait for compensation, and take with them only depreciated "dowry".

A divorce after years of marriage can be damaging for women. Years spent on childcare and housework leave women distraught, and disadvantaged in terms of youth and age, and they find it difficult to remarry. In contrast, men have a far greater chance of furthering their careers, and the new interpretation gives them exclusive ownership of real estate, which has been rising continuously in value.

Hence, gender equality advocated by law is less concrete. The absence of gender perspective makes the new judicial interpretation disadvantageous to women, especially those at the grassroots.

It's time legislators realized that society, culture, and law and its enforcement favor men. As seen in many cases, the traditional gender bias can be misleading and thus affect rulings. If the controversial articles are passed, women's property rights will be impaired, and they will find it harder to fight discrimination in real life.

The author is a professor of women's studies at China Women's University.

Wang Fang

Fair and not to men's advantage

Although the Supreme People's Court stopped soliciting public opinion on the draft of the new judicial interpretation of the Marriage Law on Dec 15, many people and media outlets still say it favors men in property division between husband and wife. But they have misunderstood the articles of the draft.

Compared with the two previous judicial interpretations, the latest one takes the prevailing social situation into consideration and suggests some groundbreaking ways of protecting women's rights.

To begin with, the new draft introduces 20 articles, 14 of which center on property relations between husband and wife, because Chinese families today hold increasing amount of wealth. The nature of their wealth is so varied that it often hinders mediation between couples in property disputes, over either private property or joint property.

The new interpretation recognizes the personal property rights of each spouse and eliminates the concern of men and women both that marriage will automatically turn their pre-marriage private property into jointly owned property.

For instance, according to article 11, real estate should be acknowledged as one party's property in a divorce case if that party signed the sales contract before marriage, made the down payment and repaid the bank loan from his/her own income, and has it registered under his/her name. Correspondingly, the outstanding loan should be his/her personal debt, and he/she has to pay the other party reasonable compensation if both spouses have jointly repaid the bank loan during the span of their marriage. The compensation should be justified by the proportion of loan the other party pays as well as the market value of the property.

Ironically, it is this article that women complain most about. Their objections reflect the conflict between the stereotype about marital property and the rising demand for defending personal property rights.

In traditional marriages, the wife used to bring in dowry such as household appliances and a man offered real estate in the form of a house. Such an arrangement is in men's favor because the value of dowry depreciates and that of real estate increases with time.

But things are different today. The traditional arrangement is no longer applicable to all marriages. Many men buy houses years before their marriage and pay developers by taking loans from banks. In such cases, real estate should certainly be considered the man's property. In fact, it would be unreasonable for his wife to lay claim to it in case of a divorce.

Despite that, the article is not disadvantageous to women. If the wife has helped her husband monetarily to repay the loan during her marriage, she can get back her principal and compensation based on the appreciation of the property.

In case a man and a woman buy real estate together before their marriage, they can sign a sales contract to turn the real estate into jointly owned property. The ownership can also be divided in the proportion of the down payment they make.

But what if the wife does not have the property registered under her name (or under joint names) despite having paid for the real estate before marriage? Her right over the property is still protected in case of a divorce, because she can seek property partition and get back the money she has paid.

Viewed in this light, article 11 cannot only protect individual property, but also free people from the worry of having their pre-marriage property transformed into jointly owned property after marriage. Besides, the article encourages both spouses to contribute to the family and ensures that neither party takes advantage of marriage to make easy money.

One of the achievements of the new interpretation is that it protects the rights of women at the grassroots. Article 5, for instance, is an early form of dividing property the European way. Many European countries like France and Germany, even China's Taiwan and Macao allow property division within the span of marriage, which is still missing on the Chinese mainland.

For years, women at the grassroots did not have any control over family property. As a result, husbands used to push women into a tight corner by stealthily transferring their joint property or borrowing money in their wives' names. In such a situation, a woman could lose her share of property if she chooses to sustain the marriage. So she has to seek divorce to safeguard her share of the property. But despite seeking divorce to demand property division, a woman could still lose her share of property because the legal procedure is time-consuming. Now, thanks to the new interpretation, wives can demand property division even before getting a divorce.

Besides article 5, article 12 says that if a spouse disposes of jointly owned property unilaterally and causes loss to the other spouse he/she should pay compensation to the other. For years, a wife could not be compensated for the loss she suffered if her husband sold a family estate to a third party, because according to the country's Property Law, the price of real estate cannot be recovered in case of bona fide sale. The new interpretation creates room for women to fight for their property rights even before getting a divorce and possibly overturn the sale of real estate that has taken place behind her back.

Here arises a conflict between the Marriage Law and the Property Law. But the new interpretation strikes a good balance between the two, and in all judicial probability it will weigh in favor of the Marriage Law, because property concerns the basic needs of a family and women, many of who still don't have control over family property.

The new interpretation strikes the best possible balance between individuals' rights on personal and joint property. Of course, it can be improved on the basis of people's suggestions and opinions. But it deserves to be seen as true to interpretation of the Marriage Law.

The author is a lawyer, who specializes in marriage disputes.