China: Marriage law interpretation could leave many divorced women homeless

Publication Date: 
September 7, 2011
New York Times

BEIJING — Millions of Chinese women, and some men, woke on Aug. 13 to discover their spouse had, in effect, become their landlord.

On that day, the Supreme Court’s new interpretation of the 1980 Marriage Law came into force, stipulating that property bought before marriage, either outright or on mortgage, reverted to the buyer on divorce. Previously, the family home had been considered joint property. Experts agree the change would mostly affect women, since men traditionally provide the family home.

The result has been uproar — and, in the cities, a rush to add the wife’s name to title deeds.

Some husbands have agreed to this, but others have balked, and Chinese news outlets have already reported on marriage breakdowns caused by a husband’s refusal to add his wife’s name.

Marriage law experts and feminists are asking: Did just take a great leap backward?

“Feudal society is back again. How many hundreds of years will it take before women are free again?” ran a typically angry post by a person called Jingmochengzhu on Sina Weibo, China’s biggest microblog, one of 1.4 million on the topic.

“The Supreme Court is under suspicion of overstepping its authority,” Ma Yinan, a Peking University law professor and deputy head of the Marriage and Family Law Institute under the China Law Society, told the newspaper Southern Weekend. Supporters were trying to justify the new rules as strengthening traditional family structures by preserving a family’s financial investment, he said.

“That’s feudalism,” Mr. Ma said. “We smashed that already. Broke it. For them to advocate traditional family structures is a joke!”

The new rules hollow out the very basis of marriage, said Zhao Xiaoli, a law professor at Tsinghua University in Beijing.

“Interpretation Three basically amounts to the construction of individual, capitalist-style property law in the heart of China’s families,” Mr. Zhao said.

A person using the tag Zhang Lei CNY posted on Sina: “Since the new marriage law came out, the equilibrium has been shattered in countless families. This stone has caused more than a thousand waves.”

The government says that in an era of soaring property prices — up about 500 percent since 2000, according to the National Bureau of Statistics — the law must protect a family’s investment. Parents and other relatives often contribute money to buy an apartment for their son, in order to help him attract a wife.

The law does not specify gender, so a woman who bought an apartment would also get it back at divorce. Yet social scientists say far fewer women buy family homes.

The interpretation is intended to address an immediate problem, and not build a perfect, logical system, a senior Supreme Court official, Du Wanhua, told legal experts last year, Southern Weekend reported in a recent article, “The Behind-the-Scenes Struggle of the New Marriage Law.”

But marriage law specialists said court officials ignored their opinions, listening instead to property law specialists.

During the consultation process, Chen Wei of the Southwest University of Political Science and Law in Chongqing tried, but failed, to get a provision that would have excluded a family’s shared primary residence from the new rules, Southern Weekend reported.

“How can the home where you live together become just one person’s property?” Li Mingshun, deputy dean of China Women’s University in Beijing, asked in the online publication Women’s Voice.

The new rules ignore a woman’s unpaid contributions to the home, including childbirth, child rearing, housework and caring for elderly family members, Li Ying, deputy director of the Beijing Qianqian Law Firm, said in Women’s Voice.

The new legal interpretation “keeps stressing ‘fairness, fairness,’ but it doesn’t consider a woman’s weaker position,” said Ms. Li. “It doesn’t recognize at all the value of work done at home.”

In her dissertation, “Brides, Billionaires and Buildings: The Gendering of Real Estate in Postsocialist China,” Leta Hong Fincher, a doctoral candidate at Tsinghua University, explores what she says is “a dramatic widening of China’s gender inequality in wealth as a result of skyrocketing real estate prices in recent years.”

Because of deeply held traditional beliefs that men must be the homeowners and heads of the household, women rarely purchase homes. Their parents may even advise against it. With recent “massive” rises in property values, Ms. Fincher said, this was worsening inequality.

The new rules could put women off marriage, she predicted.

Divorce rates, meanwhile, are rising — 2.7 million couples, or 8.5 percent more than in 2009, split last year, government figures showed. That was a key factor behind the change, with more families afraid of losing their investment, experts said.

Yang Lixin, a law professor at Renmin University in Beijing whose views, marriage specialists said, had influenced the government, defended it in Southern Weekend. Marriage laws should not provide exceptions to the civil code, Mr. Yang said.

Under property law, property belongs to the person who bought it, so “of course it belongs to the individual and isn’t shared!” he said.

Yet China’s Marriage Law has long occupied a special place in the nation’s psyche.

The New Marriage Law of 1950 — the first law passed by the Communists after they seized power in 1949 — outlawed arranged marriages and concubines, and enabled women to divorce their husbands. To this day it remains a symbol of the Communists’ commitment to women’s rights, a process that began under the preceding Nationalist government.

For Mr. Yang, this is an outdated approach.

“Making an exception of marriage law is something invented by the Soviet Union, it’s an ideological outcome,” he said. “Lenin didn’t get everything right.”

Others see a long-overdue wake-up call for Chinese women: Don’t expect a man to provide for you.

“Men have always provided the marriage home, so women’s rights have been hurt,” the author and columnist Zhao Geyu wrote in an essay circulating widely online.

“But there’s no point being resentful or complaining. Look instead to how you can change your own attitude,” she advised.

Or as Zhang Lei CNY posted on Sina Weibo: “Women, work hard, earn money and buy your own home. After this, a man is as insubstantial as a cloud.”