Debate: Marriage Law

Does the latest judicial explanation of the Marriage Law favor men? Three experts come up with divergent interpretations.

Gu Jun

Another example of income divide

Besides the old civil service examination and now the national college entrance exam, Chinese people can enter a higher social rank by other means as well. And marriage remains a universal way for a low-ranking individual to ascend higher, even though such a marital match does not necessarily entail a happy ending.

Indeed, people can get "upgraded" by marrying someone more socially superior and share the spouse's social resources, including his/her fortune. In this sense, marriage is a macrocosm of the social equality mechanism, although such "social climbing" and resource sharing is despised by many and believed to corrupt marriages.

However, the fact is, money worship does not arise from mere views of value but from social inequality. In a society where only a small number of people control most of the resources, the majority of social members are stuck in a lower status one generation after another and rack their brains to "climb up".

The increasingly common mindset of "no money, no marriage" reflects a widening wealth disparity, and it seems that our society fails to come up with effective measures that would make "low-ranking" individuals give up their efforts to improve their social status through marriages and resign themselves to fate.

But recently there has risen a "barrier" that may keep "low-ranking" individuals where they belong. Eight months after it stopped soliciting public opinions, the Supreme People's Court issued the new judicial interpretation of the Marriage Law, stipulating that real estate mortgaged and registered in the name of one party should be acknowledged as that party's property in a divorce case, even if both parties repay the loan together within their marital relationship.

Besides, real estate bought by parents and registered under their offspring's name remains the personal property of the offspring even after he/she gets married. In other words, one party's real estate, a most important form of private property, will not go through any title transfer after marriage.

It is not an exaggeration to say that the stipulation almost crushes the dreams of many who wish to improve their social status through marriage. They can still marry estate owners, but once they get a divorce, they should pack their bags and leave homeless.

In ancient times, different tribes established or enhanced alliance through marriages. In modern times, people alleviate social status through marriage. Marriage per se has its inborn utility, which cannot be denied and killed by moral preaching.

With social equality still being an ideal, people become socially mobile through marriage, but the divorce property rules of the new judicial explanation downgrades the utility of marriage. The stronger party in marriage with real estate ownership undoubtedly gets the upper hand, because he/she has no need to worry about property title transfer coming with the dissolution of marriage.

Real estate is currently taking up a large proportion of family property, but since the new judicial explanation stipulates that real estate acquired before or within a marital relationship will not be considered mutual property in a divorce case, other forms of family property will probably take a larger proportion. If that is the case, one may wonder whether the Supreme People's Court will update the judicial explanation so that it can cover other forms of family property and prevent any title transfer in a divorce case as well.

For instance, what if one party's income is much higher than the other's? Is a new judicial explanation needed to clear each party's income and savings so that both parties can retain respectively what they have saved within their marital relationship? At that point, people should realize that wealth disparity not only exacerbates the gulf between classes but also splits a family apart, forcing the weaker party in a marriage to accept to his/her vulnerability.

While in the current phase of social transformation, Chinese people can easily sense that the more powerful class, property owners for instance, often overrides the grassroots not only in different aspects of daily life, but also in the legal field. And the new divorce property rules furnish nothing but a new example.

The author is a professor of sociology at Shanghai University. The article first appeared in Oriental Morning Post.