Wang Yuanyuan

    THE Supreme Court is inviting public opinion on a draft judicial interpretation of the marriage law that have raised a heated debate over property ownership within — and outside — marriage.

    Some have commented that the revisions would have left men “laughing into their beards while women weep” if the interpretation is adopted.

    According to the draft, the spouse who paid the down payment on a property will retain that property in the event of a divorce, while the third party in an extramarital affair cannot ask for compensation in cash or property when abandoned by a married man or woman.

    “As it is a tradition that men buy the house prior to marriage, it means that no matter how much the woman pays following her marriage, she will get nothing but the money she paid for the mortgage after a divorce. It turns the husband into a landlord ... the draft is unfair to all women, both married and unmarried,” one netizen, identified as Luohua, posted on sznews.com.

    Law professor Lu Ying of Sun Yat-Sen University in Guangzhou defines the draft as a document that “exposes common disregard for women’s rights and interests.”

    She holds that men should take responsibility for their actions. “It defines the basic norms of marriage and family relations and gives no protection to women, who are the more vulnerable party in a marriage, or of women’s rights,” Lu said. “The draft underlines the reality that we still live in a men’s world and that women are potential victims.”

    Property rights

    The draft stipulates that if either a husband or wife signs a real estate purchase contract and pays the down payment on a mortgage before marrying, the estate can be regarded as his or her personal property and the unpaid mortgage as the estate owner’s personal debt.

    It also states that real estate purchased by one of the couple’s parents after marriage, as long as it is registered under that child’s name, can be regarded as the parents’ grant to that offspring and the personal property of that particular party.

    Many netizens thought the draft might trigger a rise in the divorce rate, especially among young couples, by virtue of canceling out worries of financial loss by parties that have until now only been considering divorce.

    Wu Yujuan, a 32-year-old married woman, sums up the situation:

    “Women pay a lot in their marriage, but the draft seems to ignore that. I work hard to make money to pay the mortgage and other expenses together with my husband during the daytime, and work even harder on the housework and the children at night. But if I divorce, I will have to leave the home I worked so hard for. So what I’ve done over the past years counts for nothing, according to the draft. It’s an unfair law that does not protect woman’s rights.”

    However, some experts thought the law protected the rights of those who paid the most for apartments, particularly parents who spent their savings on children’s apartments. “If you think about it from another angle, is it fair to those who spent all they’ve got to buy one apartment; all their years of savings suddenly cut in half just because of the divorce,” said Tang Min, a divorce lawyer with Shenhui Law Firm.

    The law would also deter gold diggers intent on making money from marriages, Tang added.

    Third party

    According to the draft, if a relationship with the third party in an extramarital triangle founders, the man or woman can reclaim in a court of law any property or cash compensation given or agreed upon to the third party prior to the break-up.

    As family lawyer and psychological researcher Xie Youlin of Guangdong Tiansheng Law Firm confirms, the draft protects only formally married spouses.

    Netizens have named this provision “the other woman’s doom.”

    Some express sympathy for the third party in an extramarital triangle. “Although other women (other women being the most common culprit in extramarital relationship) do inflict harm on certain marriages and families, they are totally subordinate in extramarital sexual relationships and do not possess the power to imperil family stability. The other woman gets a raw deal, bearing in mind she might spend the best years of her life satisfying the sexual desires of a married man only to be cast aside with nothing,” one netizen, identified as Monkey Fishes, said in his blog.

    Although most netizens showed no sympathy for the third party in extramarital relationships, they thought the regulations encouraged men to have affairs. “In the past, many rich married men had affairs with young girls, giving them money and other things. Now this can benefit more men as they have nothing to lose in the relationship. So the mistress cries and the wife gets hurt, but the one who caused the tragedy can turn his attention to another woman,” Wu said.

    Child bearing

    Not all the regulations in the draft disadvantage women. As regards to child bearing rights, the draft explanation states that if disputes arise between a husband and wife over child bearing and one party files for divorce on such grounds, the court should, if mediation fails, permit the divorce.

    “This helps protect women’s rights because in many cases woman who fail to conceive are subjected to domestic violence and mental cruelty,” Tang said.

    The draft also supports a woman’s right to reproductive freedom of choice by stating that courts should reject claims for compensation by the husbands of women who decide to terminate their pregnancies.