Empirical Research on Protecting Women’s Property Rights in Divorce Proceedings in China

Empirical Research on Protecting Women’s Property Rights in Divorce Proceedings in China Abstract The authors carried out a survey of divorce cases heard by a local People’s Court in Chongqing, China from 2011–2013. Some shortcomings were revealed from the survey. First, when dividing community property, the principle of caring for the wife was rarely applied. Second, in a large majority of cases involving distribution of pre-marital property, the wife gave her dowry and other personal properties to the husband or their child (or children). Third, in determining the couple’s joint debts, the judges applied different legal provisions or judicial interpretations. Fourth, some judges did not carry out a judicial review of the divorce agreement reached by the divorcing spouses, and some judges show lack of gender consciousness. Accordingly, we make some suggestions for improvement. І. INTRODUCTION: DISPOSITION OF MARITAL PROPERTY ON DIVORCE The matrimonial property regime in China is a default system of community of property acquired during marriage. Therefore, if the spouses do not opt out, this default regime applies. Article 17 of the Marriage Law Amendment Act 2001 states that the following property acquired by the husband and the wife during marriage shall be counted as community property: (i) wages and bonuses; (ii) proceeds of production and conducting a business; (iii) income from intellectual property rights; (iv) property acquired from inheritance or gift unless it is stated in the will or the gift contract that the inheritance or gift is given only to one spouse; (v) other property which should be community property. Article 18 stipulates that the following property is a party’s personal property: (i) pre-marital properties; (ii) compensation for medical bills incurred due to physical injuries or life subsidies to the disabled etc.; (iii) inheritance or gifts given only to one spouse in the will or the gift contract; (iv) articles for daily use especially used by one party and other property which should be personal property. Community property therefore has these features: (i) the owners of the community property should be legal spouses (it does not apply to partners without a marriage or those in a void marriage); (ii) Community property is only acquired during the marriage; (iii) Community property could be acquired either by one spouse alone or by both spouses together, unless otherwise provided. In the case of divorce, Article 39 of the Marriage Law Amendment Act 2001 stipulates that the husband and the wife shall seek agreement regarding the disposition of their jointly owned property. If they fail to reach agreement, the People’s Court shall, on the basis of the actual circumstances of the property and on the principle of taking into consideration the rights and interests of the child and the wife, make a decision. In 1993 the Supreme People’s Court’s Several Opinions on Dealing with Property Division in Divorce Cases further provided that, when hearing community property disputes in divorce cases, the following principles should be adhered to: gender equality; protecting the rights and interests of the wife and children; caring for the innocent party; benefiting production and lives. Accordingly, the court should keep to the principles of gender equality and listening to the parties. Where spouses cannot reach an agreement on dividing community property, the court should not always adopt equal sharing but find a resolution case by case under the guidance of the principle of caring for the wife and children. If the spouses reach agreement on division of community property, they can give some, or even all, of their share to their children. It matters not how old the child is or with whom the child lives. Obviously the child’s age and residence are important considerations when a parent decides to donate property to the child, but we could not trace information about this in the case files. And in judicial practice, the community property can only be divided between spouses rather than the child. The judgment will also state with whom the child is living and who should pay child support. Article 37 of the Marriage Law Amendment Act 2001 stipulates that if, after divorce, one parent has been given custody of a child, the other parent shall bear part or the whole of the child’s necessary living and educational expenses. The two parents shall seek agreement regarding the amount and duration of such payment. If they fail to reach an agreement, the People’s Court must make a determination. Accordingly, even if the wife donated her property to the husband or to the child, the property would not be counted as child support. She needs to pay child support too. However, if both parties reach agreement that these pre-marriage properties are counted as child support, they cannot be regarded as gifts to the child or children. The liquidation system of the couple’s property upon divorce consists of dividing community property and paying off joint debts. Article 41 of the Marriage Law Amendment Act 2001 stipulates that debts incurred for the cohabitation in a marriage shall be paid off jointly by both spouses. In practice, when deciding who has the duty to pay off the common debts, the court will usually consider the following two important factors: (i) who has more money (more share in community property) and income-earning ability; and (ii) who lives with the children and directly raises them. For divorced women, the property allocation after divorce is important in enabling them to start a new life, and also safeguards their basic human rights of survival and development. In accordance with the national basic policy of gender equality, the current divorce property liquidation system and judicial practice needs to be examined in order to test whether it realizes substantial justice and gender equality. Thus, we carried out a survey in a Peoples Court (hereinafter referred to as ‘this court’)1 in a suburb of Chongqing in January 2014. 120 divorce cases were randomly selected annually from this court between 2011 and 2013. A total of 360 cases were sampled. Based on the survey, we summarize the achievements and the shortcomings in the trial and propose suggestions for improvement. II.THE STATISTICS OF THE SAMPLED DIVORCE CASES 1. The division of property upon divorce A. Analysis of the cases where one party gained a larger share In all the 360 cases the spouses had adopted the community property system which accords with Chinese custom, especially for the rural community. Of the 360 sampled divorce cases, there were 249 in which the court resolved disputes concerning community or personal property either by mediation or judgment (excluding cases where property problems were dealt with separately, that is, heard in another case because it involved a third party’s interests). 160 of the 249 cases only divided community property; 15 cases involved the disposition of both community property and personal property and the other 74 cases involved disputes about personal property only (see Table 1). Table 1. Basic information concerning the marital property disposed in the surveyed cases   Cases involving disposition of community property only  Cases involving disposition of both community property and personal property  Cases involving disposition of personal property only  Total  Quantity  160  15  74  249  Percentage (%)  64.3  6.0  29.7  100    Cases involving disposition of community property only  Cases involving disposition of both community property and personal property  Cases involving disposition of personal property only  Total  Quantity  160  15  74  249  Percentage (%)  64.3  6.0  29.7  100  The authors regarded the former two groups (175 in total) as a single category in order to analyse judicial practice in community property disputes. In community property disputes, 21 of the 175 (12%) were resolved by a judgment made by the court, and 154 (88%) by mediation. In addition, in 20% of the total (35 cases) divorcing couples gave all the marital properties to their children. In 8.6% (15 cases)2 the percentage of the property assigned is not indicated (see Table 2). Table 2. The distribution of community property   Husband assigned greater share  Wife assigned greater share  50–50 Split  Total community property given to child  Others  Total  Percentage (%)  Mediation  54  25  25  35  15  154  88  Judgment  7  3  11  0  0  21  12  Total  61  28  36  35  15  175    Percentage (%)  34.8  16  20.6  20  8.6  100      Husband assigned greater share  Wife assigned greater share  50–50 Split  Total community property given to child  Others  Total  Percentage (%)  Mediation  54  25  25  35  15  154  88  Judgment  7  3  11  0  0  21  12  Total  61  28  36  35  15  175    Percentage (%)  34.8  16  20.6  20  8.6  100    Among the 28 cases where wife acquired a greater share of the community property, in 19 (67.9%) she acquired a smaller duty to pay off common debts than the husband. Thirty-five husbands obtained more community property than the wife and also assumed a smaller duty, which was nearly twice the number of cases (19 in total) where the wife received the same favourable treatment. Hence one can see that some wives are in a weak position after property is divided upon divorce (see Table 3). Table 3. Analysis of cases where a spouse was assigned a greater share of the property   Husband assigned greater share   Wife assigned greater share   Greater share and larger duty  Greater share but smaller duty  Total  Greater share and larger duty  Greater share but smaller duty  Total  Mediation  25  29  54  9  16  25  Judgment  1  6  7  0  3  3  Total  26  35  61  9  19  28  Percentage (%)  42.6  57.4  100  32.1  67.9  100    Husband assigned greater share   Wife assigned greater share   Greater share and larger duty  Greater share but smaller duty  Total  Greater share and larger duty  Greater share but smaller duty  Total  Mediation  25  29  54  9  16  25  Judgment  1  6  7  0  3  3  Total  26  35  61  9  19  28  Percentage (%)  42.6  57.4  100  32.1  67.9  100  B. Analysis on the cases of the fifty-fifty split of the community property The authors mainly explored this group of cases from the perspective of equal distribution of obligations between the wife and the husband. In cases of equal sharing of community property, the wife generally incurred the same obligations (or no duties) as the husband. That said, the wife was more likely to give her share to the child or children, which is a voluntary act without any obligations. Therefore, these wives actually didn’t acquire any property upon divorce (see Table 4). Table 4. Analysis of the cases with a fifty–fifty split of community property   Equal property distribution and equal duty performance (no duty included)  Equal property distribution with wife’s share given to child  Equal property distribution with husband’s share given to child  Others  Total  Mediation  9  10  2  4  25  Judgment  10  0  0  1  11  Total  19  10  2  5  36  Percentage (%)  52.8  27.8  5.5  13.9  100    Equal property distribution and equal duty performance (no duty included)  Equal property distribution with wife’s share given to child  Equal property distribution with husband’s share given to child  Others  Total  Mediation  9  10  2  4  25  Judgment  10  0  0  1  11  Total  19  10  2  5  36  Percentage (%)  52.8  27.8  5.5  13.9  100  C. Analysis of the rationale behind the judgment regarding property division As mentioned above, there were 21 cases in which this court gave a judgment dividing the community property. Our survey shows that two of the 21 cases (9.5%) adopted the principle of ‘caring for the wife’ and 11 (52.4%) adopted the principle of ‘equal sharing’ (see Table 5). Table 5. Analysis of the rationale behind the judgment regarding property division   Caring for wife  Caring for wife, child and no-fault spouse  Equal sharing  Caring for child  Caring for no-fault spouse  Benefit- producing  Caring for sick husband  Others  Total  Quantity  1  1  11  2  1  2  1  2  21  Percentage (%)  Cases adopting the principle of caring for wife total 2 (i.e.9.5%).  52.4  9.5  4.8  9.5  4.8  9.5  100    Caring for wife  Caring for wife, child and no-fault spouse  Equal sharing  Caring for child  Caring for no-fault spouse  Benefit- producing  Caring for sick husband  Others  Total  Quantity  1  1  11  2  1  2  1  2  21  Percentage (%)  Cases adopting the principle of caring for wife total 2 (i.e.9.5%).  52.4  9.5  4.8  9.5  4.8  9.5  100  D. The disposition of premarital personal property Four of 89 cases involving dividing premarital properties concerned the disposition of the husband’s premarital personal property, and the judicial decisions in these four cases indicated that the husband’s premarital property was still held by the husband. There were 85 cases involving disposition of the wife’s properties such as dowry3 or other properties. These included 56 cases (65.8%) where the wife gave her premarital personal property to the child (or children) or to the husband, which is more than twice the cases where the wife retained her premarital property (see Table 6).4 Table 6. The disposition of the wife’s premarital personal property   Retained by wife  Given to child  Given to husband  Others  Total  Quantity  26  28  28  3  85  Percentage (%)  30.6  32.9  32.9  3.6  100    Retained by wife  Given to child  Given to husband  Others  Total  Quantity  26  28  28  3  85  Percentage (%)  30.6  32.9  32.9  3.6  100  2. Considerations regarding responsibility for debts The survey shows that among the 360 sampled divorce cases, 87 involve determining responsibility for debts. A. Determination of the nature of the debts Among 87 cases involving debt disputes, 59 ended by mediation, reflecting the parties’ right to exercise their autonomy in resolving the issue (see Table 7). Thus we will focus on the 20 cases where the debt dispute was resolved by the court’s judgment. Table 7. Handling of cases involving responsibility for debts Item  Joint debts  Partly joint debts  Non joint debts  Handled separately  Total  Mediation  55  1  3  3  62  Judgment  19  0  1  5  25  Total  74  1  4  8  87  Percentage (%)  85.1  1.1  4.6  9.2  100  Item  Joint debts  Partly joint debts  Non joint debts  Handled separately  Total  Mediation  55  1  3  3  62  Judgment  19  0  1  5  25  Total  74  1  4  8  87  Percentage (%)  85.1  1.1  4.6  9.2  100  In these 20 cases, in 11 (55%) the court determined the nature of the debts based on the common intent of the couple (that is, whether the couple agreed to incur the debt jointly or not), while in eight cases (40%) the test that was applied was whether the debts were used for the cohabitation or not (see Table 8). Table 8. Considerations in determining the nature of the debt   Common intent  Cohabitation purpose  Others  Total  Quantity  11  8  1  20  Percentage (%)  55  40  5  100    Common intent  Cohabitation purpose  Others  Total  Quantity  11  8  1  20  Percentage (%)  55  40  5  100  B. Determination of the debt responsibility In the 24 cases determining debt responsibility, 11 husbands were judged to take more responsibility to pay off the joint debts (accounting for 45.8%), compared to five cases (20.8%) where wives were allocated more debt responsibility, thus more than twice as many husbands were allocated a larger responsibility. III. DISCUSSION 1. Adhering to the principle of gender equality The survey shows that this court adopted the equal share principle in 11 cases (52.4%) when hearing divorce cases (see Table 5) and it adopted the test of common intent to determine the nature of a debt in 11 (55.0%) of cases. Dividing common properties equally, and also allocating responsibility for joint debts equally, helps to safeguard the equal legal status of husband and wife in a family and protect women’s property rights where both spouses are in a similar position in terms of income, health and fulfilling child support duties. 2. Less responsibility for paying off joint debts for women The survey also shows that in the cases involving settlement of joint debt only, the husband assumed a greater responsibility in 45.8% of cases, more than twice as many than where the wife bore the greater duty (20.8%) (see Table 9). It is clear that the wife’s liability for the debts is reduced to some extent. According to Article 41 of the Marriage Law Amendment 2001, spouses should bear joint responsibility to pay off the common debts. We think that when the court allocated a greater duty to the husband, the wife had less ability to pay off these debts. But even if the court might have given this judgment based on the husband’s better economic position, the wife’s duties to pay off these debts were nevertheless reduced. This actually reflects the principle of caring for the wife stipulated in Article 39 of the Marriage Law Amendment 2001. Table 9. Determination of the debt responsibility Item  Equal responsibility  More responsibility for the husband  More responsibility for the wife  Total  Mediation  2  8  4  14  Judgment  6  3  1  10  Total  8  11  5  24  Percentage (%)  33.4  45.8  20.8  100  Item  Equal responsibility  More responsibility for the husband  More responsibility for the wife  Total  Mediation  2  8  4  14  Judgment  6  3  1  10  Total  8  11  5  24  Percentage (%)  33.4  45.8  20.8  100  4. Inadequacies in protecting women’s rights in liquidation of property upon divorce A. The principle of caring for the wife randomly applied in division of community property This survey indicates that in the cases concerning dividing community property, the principle of caring for the wife was applied in less than 10% (9.5%) of cases (see Table 5). Moreover, 35 husbands were awarded more property but were not required to assume a higher duty to pay off debts, while only 19 wives were awarded more property with less debt responsibility. The former is about twice the latter (see Table 3). In terms of donation to one’s child, spouses in 35 cases agreed to donate their common property to the child (or children) (see Table 2), and in another 10 cases the wife who acquired half of the common property donated her share to the child (or children) (see Table 4). These cases, 45 in total, accounted for 25.7% among the 175 cases. Although the donation embodies the care for minor children, it will result in the wife not actually acquiring any property upon divorce, which may disadvantage her in her post-divorce life. In sum, random application of the principle of caring for the wife probably leads to poverty after divorce among divorced wives. B. Many wives waiving personal properties such as dowry In 85 cases involving the wife’s dowry or other premarital properties, more than 65.8% of the wives gave up their dowries or other pre-marital properties (see Table 6). Interviews with judges gave us a possible explanation: the dowries are mainly items in daily use, including furniture and household appliances etc., which either have a huge loss of value on account of having been used jointly by the couple, or are inconvenient to take away. Thus the wife usually gives these personal properties to the husband or the child. It can be inferred that without compensation for such losses of personal properties, women’s property rights face further difficulties. C. Differences in determination of joint debts In the 20 cases where this court determined whether the disputed debts were joint debts or not, in 55% the common intent test was applied and the cohabitation purpose test in 40.0% (see Table 8). The different tests usually lead to different judgments and this obviously affects the protection of the property rights of divorcing parties, leading to doubts about the fairness of the decisions. The law should state which test is to apply. D. Lack of substantial review of the divorce agreement reached in judicial mediation In divorce proceedings in China the principle of prioritizing mediation in dealing with community property division is emphasized.5 When the parties reach a reconciliation agreement of their own accord during judicial mediation, the People’s Court will respect their autonomy and confirm this agreement accordingly. But judges should examine the content of the reconciliation agreement with a view to protecting the rights and interests of women and children. Judges should be aware of rural women’s weak status and consider it as a factor in dividing community property so as to provide economic protection for their post-divorce lives. However, as mentioned above, in the surveyed cases many wives were assigned little property. For example, in one divorce case closed by this court in 2011, both parties reached an agreement on property division and child support as follows: The wife was given custody of a 15-year-old daughter and would bear the responsibility of raising the child on her own. The community property, the marital house, was awarded to the husband. Again, in a divorce case in 2012, both parties reached a divorce agreement in judicial mediation: the marital house and family appliances were all awarded to the husband; the wife was given custody of a 14-year-old daughter and assumed all responsibility for child-raising.6 According to the personal information recorded in these two cases, both women were peasants. The agreements giving up her share of community property and caring for the child alone probably cause economic difficulties after divorce for single mother families so that their rights to development are hard to realize. E. Some judges lack gender consciousness Some judges failed to examine the content of the divorce agreement reached by both parties, and the principle of caring for the wife was rarely applied in the judgments dividing community property. So the property rights of the divorced wife were poorly protected in some cases. The underlying reason for these problems is that some judges lack gender consciousness to protect the weak. 5. Empirical research on the protection of women’s property rights in divorce property disputes The State Council of China issued the Programme of China’s Women Development (2011–2020) in 2011. It requires ‘protecting the property rights and interests of women in marriage and family relationships. In hearing divorce cases, women should be fairly compensated considering their contribution in caring for family members during the marriage, their post-divorce lives and development and raising-child tasks’. The survey finds that this court has made achievements in protecting women’s property rights, but that there is also some room for improvement. We suggest taking the following measures to improve the current legislation as well as judicial practice. A. Stipulating factors that the court must consider when applying the principle of caring for the wife in divorce property disputes Regarding the problem that some judges rarely use the principle of caring for the wife in divorce property disputes, the authors suggest that the lawmakers should explicitly stipulate the factors to be considered when applying the principle of caring for the wife in divorce property disputes, learning from the judicial experience of England and Wales.7 These factors include (i) The marriage life; (ii) The health of the wife; (iii) Contribution to the community property; (iv) The child-rearing tasks; (v) Other factors. B. Establishing a compensation system for the natural losses of premarital personal properties during marriage As mentioned earlier, there is no compensation system for the natural losses of pre-marital properties due to marriage life. The authors suggest learning from the French compensation system stipulated in Article 1433 of the French Civil Code which provides that as long as the community property benefits from one spouse’s personal property, the owner of the personal property shall be compensated from the community property.8 So the authors recommend establishing such a system in China’s Marriage Law: where one party’s personal property suffers an apparent decrease of the value due to marriage life, the spouse shall have the right to claim compensation from community property or the other spouse’s personal property for such a loss. C. Establishing the family agency system as a helpful tool to determine joint debts The practical need for couples to incur debts for their cohabitation is the reason for treating them as a joint debt. Therefore it is crucial to define what debts the cohabitation covers. We suggest establishing the family agency system in China in which the scope of the daily lives for a couple and family agency power are stipulated. Accordingly, the liability for the debt will be clarified, and the burden of proof will be reasonably assigned. In addition, the court should consider the following factors when determining the liability for joint debts: the division of common property and child custody; the economic status and debt-paying ability of both parties (giving preferential treatment to the weaker party); the cause of debt (the party benefiting more from joint debts should assume a larger liability for the joint debts). D. Establishing family mediation counsellors in the people’s court As for the difficulties in divorce mediation in the People’s Court, we suggest learning from Australian family court system and establishing a family counsellor in mediation on family matters. We suggest that the court should appoint professional institutions or mediators specialized in family mediation as family counsellors to provide consultation services in divorce cases. Once a divorce agreement is reached by both parties with the help of family counsellors, judges need to carry out substantive examination in accordance with law on the basis of respecting their autonomy so as to promote substantive fairness of mediation agreements and protect the rights of the vulnerable. E. Strengthening the regular training of legislators and judicial personnel on gender consciousness The Program of China’s Women Development (2011–2020) issued by the State Council in 2011 requires strengthening training on gender consciousness and incorporating ‘the theory of gender into regular training courses for the legislative, the executive and the judicial departments, and improving their gender consciousness’. Therefore we put forward suggestions that courts at all levels should earnestly implement relevant documents issued by the government and take steps to incorporate the gender theory into the regular training of judges. Thus judges’ gender consciousness can be improved and the legitimate property rights of the wife in liquidation of divorce property can be better protected. Thanks should be given to the following postgraduate students in the Civil and Commercial Law School for their hard work in this survey: ZHANG Qinling, ZHANG Zhiyuan, SUN shuangshuang, LU Xiuping, LUO xibeibei, CHEN Zhao, REN Ding, YANG Yun, SI Yanlu, ZENG Na, YI Li, LU Shanshan, WU Qihun. Footnotes 1 The main industry in this county is agriculture. The GDP in this region in 2014 was nearly 10 billion RMB and it has a population of approximately 0.52million, with agricultural population of 0.46 million. Peasants’ income per capita income was about 6,700 RMB and urban citizens’ disposable income per capita income was more than 18,000 RMB. 2 The value of some property was unknown so its proportion in the community property couldn’t be determined. 3 This is the property brought into the marriage by the wife or from her family, or both. In accordance with Article 18 of the Marriage Law Amendment2001, pre-marital properties are one’s personal properties. The court has no power to divide these personal properties at the divorce. But a spouse has the right to give his or her personal property to his or her spouse or their child. The court would not step in either. 4 Even if the children stay with the wife, there is some difference regarding wife’s rights over these properties. Article 39 of the Property Law 2007 provides that the owner of a property is entitled to possess, utilize, seek profits from and dispose of the property in accordance with law. When one parent donates his or her property to the child, he or she can only possess, utilize and seek profits from the property for the child, but has no disposal right unless for children’s benefits. And if parents’ disposal of the property damages the children’s benefit, they will have to compensate for this. 5 See Chen and Shi (2013). 6 For more information on child care issues upon divorce, we carried out other surveys both in the courts and at the marriage registration offices in Chong Qing, China. See Chen and Zhang (2016). Chen et al. (2017). 7 Shi. (2015). 8 See French Civil Code, translated by Luo Jiezhen (Peking University Press, 2010) 368. References Chen W., Shi L. ( 2013) ‘Divorce procedure in China’ in Eekelaar John, George Rob (eds), Routledge Handbook of Family Law and Policy , Abingdon: Routledge, 111. Chen W., Zhang Q. ( 2016) ‘ The juridical practice of child-rearing questions in divorce proceedings and proposals for improvement’, The International Survey of Family Law  105– 128. Chen W., Shi L., Zhang W. ( 2017) China’s divorce registration from the perspective of children’s rights, Bristol, UK: LexisNexis and Jordan Publishing, 22– 37. Shi L. ( 2015) Research on the Modern Divorce System in England and Wales , Beijing: Qunzhong Press, 209– 215. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Journal of Law, Policy and the Family Oxford University Press

Empirical Research on Protecting Women’s Property Rights in Divorce Proceedings in China

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Abstract

Abstract The authors carried out a survey of divorce cases heard by a local People’s Court in Chongqing, China from 2011–2013. Some shortcomings were revealed from the survey. First, when dividing community property, the principle of caring for the wife was rarely applied. Second, in a large majority of cases involving distribution of pre-marital property, the wife gave her dowry and other personal properties to the husband or their child (or children). Third, in determining the couple’s joint debts, the judges applied different legal provisions or judicial interpretations. Fourth, some judges did not carry out a judicial review of the divorce agreement reached by the divorcing spouses, and some judges show lack of gender consciousness. Accordingly, we make some suggestions for improvement. І. INTRODUCTION: DISPOSITION OF MARITAL PROPERTY ON DIVORCE The matrimonial property regime in China is a default system of community of property acquired during marriage. Therefore, if the spouses do not opt out, this default regime applies. Article 17 of the Marriage Law Amendment Act 2001 states that the following property acquired by the husband and the wife during marriage shall be counted as community property: (i) wages and bonuses; (ii) proceeds of production and conducting a business; (iii) income from intellectual property rights; (iv) property acquired from inheritance or gift unless it is stated in the will or the gift contract that the inheritance or gift is given only to one spouse; (v) other property which should be community property. Article 18 stipulates that the following property is a party’s personal property: (i) pre-marital properties; (ii) compensation for medical bills incurred due to physical injuries or life subsidies to the disabled etc.; (iii) inheritance or gifts given only to one spouse in the will or the gift contract; (iv) articles for daily use especially used by one party and other property which should be personal property. Community property therefore has these features: (i) the owners of the community property should be legal spouses (it does not apply to partners without a marriage or those in a void marriage); (ii) Community property is only acquired during the marriage; (iii) Community property could be acquired either by one spouse alone or by both spouses together, unless otherwise provided. In the case of divorce, Article 39 of the Marriage Law Amendment Act 2001 stipulates that the husband and the wife shall seek agreement regarding the disposition of their jointly owned property. If they fail to reach agreement, the People’s Court shall, on the basis of the actual circumstances of the property and on the principle of taking into consideration the rights and interests of the child and the wife, make a decision. In 1993 the Supreme People’s Court’s Several Opinions on Dealing with Property Division in Divorce Cases further provided that, when hearing community property disputes in divorce cases, the following principles should be adhered to: gender equality; protecting the rights and interests of the wife and children; caring for the innocent party; benefiting production and lives. Accordingly, the court should keep to the principles of gender equality and listening to the parties. Where spouses cannot reach an agreement on dividing community property, the court should not always adopt equal sharing but find a resolution case by case under the guidance of the principle of caring for the wife and children. If the spouses reach agreement on division of community property, they can give some, or even all, of their share to their children. It matters not how old the child is or with whom the child lives. Obviously the child’s age and residence are important considerations when a parent decides to donate property to the child, but we could not trace information about this in the case files. And in judicial practice, the community property can only be divided between spouses rather than the child. The judgment will also state with whom the child is living and who should pay child support. Article 37 of the Marriage Law Amendment Act 2001 stipulates that if, after divorce, one parent has been given custody of a child, the other parent shall bear part or the whole of the child’s necessary living and educational expenses. The two parents shall seek agreement regarding the amount and duration of such payment. If they fail to reach an agreement, the People’s Court must make a determination. Accordingly, even if the wife donated her property to the husband or to the child, the property would not be counted as child support. She needs to pay child support too. However, if both parties reach agreement that these pre-marriage properties are counted as child support, they cannot be regarded as gifts to the child or children. The liquidation system of the couple’s property upon divorce consists of dividing community property and paying off joint debts. Article 41 of the Marriage Law Amendment Act 2001 stipulates that debts incurred for the cohabitation in a marriage shall be paid off jointly by both spouses. In practice, when deciding who has the duty to pay off the common debts, the court will usually consider the following two important factors: (i) who has more money (more share in community property) and income-earning ability; and (ii) who lives with the children and directly raises them. For divorced women, the property allocation after divorce is important in enabling them to start a new life, and also safeguards their basic human rights of survival and development. In accordance with the national basic policy of gender equality, the current divorce property liquidation system and judicial practice needs to be examined in order to test whether it realizes substantial justice and gender equality. Thus, we carried out a survey in a Peoples Court (hereinafter referred to as ‘this court’)1 in a suburb of Chongqing in January 2014. 120 divorce cases were randomly selected annually from this court between 2011 and 2013. A total of 360 cases were sampled. Based on the survey, we summarize the achievements and the shortcomings in the trial and propose suggestions for improvement. II.THE STATISTICS OF THE SAMPLED DIVORCE CASES 1. The division of property upon divorce A. Analysis of the cases where one party gained a larger share In all the 360 cases the spouses had adopted the community property system which accords with Chinese custom, especially for the rural community. Of the 360 sampled divorce cases, there were 249 in which the court resolved disputes concerning community or personal property either by mediation or judgment (excluding cases where property problems were dealt with separately, that is, heard in another case because it involved a third party’s interests). 160 of the 249 cases only divided community property; 15 cases involved the disposition of both community property and personal property and the other 74 cases involved disputes about personal property only (see Table 1). Table 1. Basic information concerning the marital property disposed in the surveyed cases   Cases involving disposition of community property only  Cases involving disposition of both community property and personal property  Cases involving disposition of personal property only  Total  Quantity  160  15  74  249  Percentage (%)  64.3  6.0  29.7  100    Cases involving disposition of community property only  Cases involving disposition of both community property and personal property  Cases involving disposition of personal property only  Total  Quantity  160  15  74  249  Percentage (%)  64.3  6.0  29.7  100  The authors regarded the former two groups (175 in total) as a single category in order to analyse judicial practice in community property disputes. In community property disputes, 21 of the 175 (12%) were resolved by a judgment made by the court, and 154 (88%) by mediation. In addition, in 20% of the total (35 cases) divorcing couples gave all the marital properties to their children. In 8.6% (15 cases)2 the percentage of the property assigned is not indicated (see Table 2). Table 2. The distribution of community property   Husband assigned greater share  Wife assigned greater share  50–50 Split  Total community property given to child  Others  Total  Percentage (%)  Mediation  54  25  25  35  15  154  88  Judgment  7  3  11  0  0  21  12  Total  61  28  36  35  15  175    Percentage (%)  34.8  16  20.6  20  8.6  100      Husband assigned greater share  Wife assigned greater share  50–50 Split  Total community property given to child  Others  Total  Percentage (%)  Mediation  54  25  25  35  15  154  88  Judgment  7  3  11  0  0  21  12  Total  61  28  36  35  15  175    Percentage (%)  34.8  16  20.6  20  8.6  100    Among the 28 cases where wife acquired a greater share of the community property, in 19 (67.9%) she acquired a smaller duty to pay off common debts than the husband. Thirty-five husbands obtained more community property than the wife and also assumed a smaller duty, which was nearly twice the number of cases (19 in total) where the wife received the same favourable treatment. Hence one can see that some wives are in a weak position after property is divided upon divorce (see Table 3). Table 3. Analysis of cases where a spouse was assigned a greater share of the property   Husband assigned greater share   Wife assigned greater share   Greater share and larger duty  Greater share but smaller duty  Total  Greater share and larger duty  Greater share but smaller duty  Total  Mediation  25  29  54  9  16  25  Judgment  1  6  7  0  3  3  Total  26  35  61  9  19  28  Percentage (%)  42.6  57.4  100  32.1  67.9  100    Husband assigned greater share   Wife assigned greater share   Greater share and larger duty  Greater share but smaller duty  Total  Greater share and larger duty  Greater share but smaller duty  Total  Mediation  25  29  54  9  16  25  Judgment  1  6  7  0  3  3  Total  26  35  61  9  19  28  Percentage (%)  42.6  57.4  100  32.1  67.9  100  B. Analysis on the cases of the fifty-fifty split of the community property The authors mainly explored this group of cases from the perspective of equal distribution of obligations between the wife and the husband. In cases of equal sharing of community property, the wife generally incurred the same obligations (or no duties) as the husband. That said, the wife was more likely to give her share to the child or children, which is a voluntary act without any obligations. Therefore, these wives actually didn’t acquire any property upon divorce (see Table 4). Table 4. Analysis of the cases with a fifty–fifty split of community property   Equal property distribution and equal duty performance (no duty included)  Equal property distribution with wife’s share given to child  Equal property distribution with husband’s share given to child  Others  Total  Mediation  9  10  2  4  25  Judgment  10  0  0  1  11  Total  19  10  2  5  36  Percentage (%)  52.8  27.8  5.5  13.9  100    Equal property distribution and equal duty performance (no duty included)  Equal property distribution with wife’s share given to child  Equal property distribution with husband’s share given to child  Others  Total  Mediation  9  10  2  4  25  Judgment  10  0  0  1  11  Total  19  10  2  5  36  Percentage (%)  52.8  27.8  5.5  13.9  100  C. Analysis of the rationale behind the judgment regarding property division As mentioned above, there were 21 cases in which this court gave a judgment dividing the community property. Our survey shows that two of the 21 cases (9.5%) adopted the principle of ‘caring for the wife’ and 11 (52.4%) adopted the principle of ‘equal sharing’ (see Table 5). Table 5. Analysis of the rationale behind the judgment regarding property division   Caring for wife  Caring for wife, child and no-fault spouse  Equal sharing  Caring for child  Caring for no-fault spouse  Benefit- producing  Caring for sick husband  Others  Total  Quantity  1  1  11  2  1  2  1  2  21  Percentage (%)  Cases adopting the principle of caring for wife total 2 (i.e.9.5%).  52.4  9.5  4.8  9.5  4.8  9.5  100    Caring for wife  Caring for wife, child and no-fault spouse  Equal sharing  Caring for child  Caring for no-fault spouse  Benefit- producing  Caring for sick husband  Others  Total  Quantity  1  1  11  2  1  2  1  2  21  Percentage (%)  Cases adopting the principle of caring for wife total 2 (i.e.9.5%).  52.4  9.5  4.8  9.5  4.8  9.5  100  D. The disposition of premarital personal property Four of 89 cases involving dividing premarital properties concerned the disposition of the husband’s premarital personal property, and the judicial decisions in these four cases indicated that the husband’s premarital property was still held by the husband. There were 85 cases involving disposition of the wife’s properties such as dowry3 or other properties. These included 56 cases (65.8%) where the wife gave her premarital personal property to the child (or children) or to the husband, which is more than twice the cases where the wife retained her premarital property (see Table 6).4 Table 6. The disposition of the wife’s premarital personal property   Retained by wife  Given to child  Given to husband  Others  Total  Quantity  26  28  28  3  85  Percentage (%)  30.6  32.9  32.9  3.6  100    Retained by wife  Given to child  Given to husband  Others  Total  Quantity  26  28  28  3  85  Percentage (%)  30.6  32.9  32.9  3.6  100  2. Considerations regarding responsibility for debts The survey shows that among the 360 sampled divorce cases, 87 involve determining responsibility for debts. A. Determination of the nature of the debts Among 87 cases involving debt disputes, 59 ended by mediation, reflecting the parties’ right to exercise their autonomy in resolving the issue (see Table 7). Thus we will focus on the 20 cases where the debt dispute was resolved by the court’s judgment. Table 7. Handling of cases involving responsibility for debts Item  Joint debts  Partly joint debts  Non joint debts  Handled separately  Total  Mediation  55  1  3  3  62  Judgment  19  0  1  5  25  Total  74  1  4  8  87  Percentage (%)  85.1  1.1  4.6  9.2  100  Item  Joint debts  Partly joint debts  Non joint debts  Handled separately  Total  Mediation  55  1  3  3  62  Judgment  19  0  1  5  25  Total  74  1  4  8  87  Percentage (%)  85.1  1.1  4.6  9.2  100  In these 20 cases, in 11 (55%) the court determined the nature of the debts based on the common intent of the couple (that is, whether the couple agreed to incur the debt jointly or not), while in eight cases (40%) the test that was applied was whether the debts were used for the cohabitation or not (see Table 8). Table 8. Considerations in determining the nature of the debt   Common intent  Cohabitation purpose  Others  Total  Quantity  11  8  1  20  Percentage (%)  55  40  5  100    Common intent  Cohabitation purpose  Others  Total  Quantity  11  8  1  20  Percentage (%)  55  40  5  100  B. Determination of the debt responsibility In the 24 cases determining debt responsibility, 11 husbands were judged to take more responsibility to pay off the joint debts (accounting for 45.8%), compared to five cases (20.8%) where wives were allocated more debt responsibility, thus more than twice as many husbands were allocated a larger responsibility. III. DISCUSSION 1. Adhering to the principle of gender equality The survey shows that this court adopted the equal share principle in 11 cases (52.4%) when hearing divorce cases (see Table 5) and it adopted the test of common intent to determine the nature of a debt in 11 (55.0%) of cases. Dividing common properties equally, and also allocating responsibility for joint debts equally, helps to safeguard the equal legal status of husband and wife in a family and protect women’s property rights where both spouses are in a similar position in terms of income, health and fulfilling child support duties. 2. Less responsibility for paying off joint debts for women The survey also shows that in the cases involving settlement of joint debt only, the husband assumed a greater responsibility in 45.8% of cases, more than twice as many than where the wife bore the greater duty (20.8%) (see Table 9). It is clear that the wife’s liability for the debts is reduced to some extent. According to Article 41 of the Marriage Law Amendment 2001, spouses should bear joint responsibility to pay off the common debts. We think that when the court allocated a greater duty to the husband, the wife had less ability to pay off these debts. But even if the court might have given this judgment based on the husband’s better economic position, the wife’s duties to pay off these debts were nevertheless reduced. This actually reflects the principle of caring for the wife stipulated in Article 39 of the Marriage Law Amendment 2001. Table 9. Determination of the debt responsibility Item  Equal responsibility  More responsibility for the husband  More responsibility for the wife  Total  Mediation  2  8  4  14  Judgment  6  3  1  10  Total  8  11  5  24  Percentage (%)  33.4  45.8  20.8  100  Item  Equal responsibility  More responsibility for the husband  More responsibility for the wife  Total  Mediation  2  8  4  14  Judgment  6  3  1  10  Total  8  11  5  24  Percentage (%)  33.4  45.8  20.8  100  4. Inadequacies in protecting women’s rights in liquidation of property upon divorce A. The principle of caring for the wife randomly applied in division of community property This survey indicates that in the cases concerning dividing community property, the principle of caring for the wife was applied in less than 10% (9.5%) of cases (see Table 5). Moreover, 35 husbands were awarded more property but were not required to assume a higher duty to pay off debts, while only 19 wives were awarded more property with less debt responsibility. The former is about twice the latter (see Table 3). In terms of donation to one’s child, spouses in 35 cases agreed to donate their common property to the child (or children) (see Table 2), and in another 10 cases the wife who acquired half of the common property donated her share to the child (or children) (see Table 4). These cases, 45 in total, accounted for 25.7% among the 175 cases. Although the donation embodies the care for minor children, it will result in the wife not actually acquiring any property upon divorce, which may disadvantage her in her post-divorce life. In sum, random application of the principle of caring for the wife probably leads to poverty after divorce among divorced wives. B. Many wives waiving personal properties such as dowry In 85 cases involving the wife’s dowry or other premarital properties, more than 65.8% of the wives gave up their dowries or other pre-marital properties (see Table 6). Interviews with judges gave us a possible explanation: the dowries are mainly items in daily use, including furniture and household appliances etc., which either have a huge loss of value on account of having been used jointly by the couple, or are inconvenient to take away. Thus the wife usually gives these personal properties to the husband or the child. It can be inferred that without compensation for such losses of personal properties, women’s property rights face further difficulties. C. Differences in determination of joint debts In the 20 cases where this court determined whether the disputed debts were joint debts or not, in 55% the common intent test was applied and the cohabitation purpose test in 40.0% (see Table 8). The different tests usually lead to different judgments and this obviously affects the protection of the property rights of divorcing parties, leading to doubts about the fairness of the decisions. The law should state which test is to apply. D. Lack of substantial review of the divorce agreement reached in judicial mediation In divorce proceedings in China the principle of prioritizing mediation in dealing with community property division is emphasized.5 When the parties reach a reconciliation agreement of their own accord during judicial mediation, the People’s Court will respect their autonomy and confirm this agreement accordingly. But judges should examine the content of the reconciliation agreement with a view to protecting the rights and interests of women and children. Judges should be aware of rural women’s weak status and consider it as a factor in dividing community property so as to provide economic protection for their post-divorce lives. However, as mentioned above, in the surveyed cases many wives were assigned little property. For example, in one divorce case closed by this court in 2011, both parties reached an agreement on property division and child support as follows: The wife was given custody of a 15-year-old daughter and would bear the responsibility of raising the child on her own. The community property, the marital house, was awarded to the husband. Again, in a divorce case in 2012, both parties reached a divorce agreement in judicial mediation: the marital house and family appliances were all awarded to the husband; the wife was given custody of a 14-year-old daughter and assumed all responsibility for child-raising.6 According to the personal information recorded in these two cases, both women were peasants. The agreements giving up her share of community property and caring for the child alone probably cause economic difficulties after divorce for single mother families so that their rights to development are hard to realize. E. Some judges lack gender consciousness Some judges failed to examine the content of the divorce agreement reached by both parties, and the principle of caring for the wife was rarely applied in the judgments dividing community property. So the property rights of the divorced wife were poorly protected in some cases. The underlying reason for these problems is that some judges lack gender consciousness to protect the weak. 5. Empirical research on the protection of women’s property rights in divorce property disputes The State Council of China issued the Programme of China’s Women Development (2011–2020) in 2011. It requires ‘protecting the property rights and interests of women in marriage and family relationships. In hearing divorce cases, women should be fairly compensated considering their contribution in caring for family members during the marriage, their post-divorce lives and development and raising-child tasks’. The survey finds that this court has made achievements in protecting women’s property rights, but that there is also some room for improvement. We suggest taking the following measures to improve the current legislation as well as judicial practice. A. Stipulating factors that the court must consider when applying the principle of caring for the wife in divorce property disputes Regarding the problem that some judges rarely use the principle of caring for the wife in divorce property disputes, the authors suggest that the lawmakers should explicitly stipulate the factors to be considered when applying the principle of caring for the wife in divorce property disputes, learning from the judicial experience of England and Wales.7 These factors include (i) The marriage life; (ii) The health of the wife; (iii) Contribution to the community property; (iv) The child-rearing tasks; (v) Other factors. B. Establishing a compensation system for the natural losses of premarital personal properties during marriage As mentioned earlier, there is no compensation system for the natural losses of pre-marital properties due to marriage life. The authors suggest learning from the French compensation system stipulated in Article 1433 of the French Civil Code which provides that as long as the community property benefits from one spouse’s personal property, the owner of the personal property shall be compensated from the community property.8 So the authors recommend establishing such a system in China’s Marriage Law: where one party’s personal property suffers an apparent decrease of the value due to marriage life, the spouse shall have the right to claim compensation from community property or the other spouse’s personal property for such a loss. C. Establishing the family agency system as a helpful tool to determine joint debts The practical need for couples to incur debts for their cohabitation is the reason for treating them as a joint debt. Therefore it is crucial to define what debts the cohabitation covers. We suggest establishing the family agency system in China in which the scope of the daily lives for a couple and family agency power are stipulated. Accordingly, the liability for the debt will be clarified, and the burden of proof will be reasonably assigned. In addition, the court should consider the following factors when determining the liability for joint debts: the division of common property and child custody; the economic status and debt-paying ability of both parties (giving preferential treatment to the weaker party); the cause of debt (the party benefiting more from joint debts should assume a larger liability for the joint debts). D. Establishing family mediation counsellors in the people’s court As for the difficulties in divorce mediation in the People’s Court, we suggest learning from Australian family court system and establishing a family counsellor in mediation on family matters. We suggest that the court should appoint professional institutions or mediators specialized in family mediation as family counsellors to provide consultation services in divorce cases. Once a divorce agreement is reached by both parties with the help of family counsellors, judges need to carry out substantive examination in accordance with law on the basis of respecting their autonomy so as to promote substantive fairness of mediation agreements and protect the rights of the vulnerable. E. Strengthening the regular training of legislators and judicial personnel on gender consciousness The Program of China’s Women Development (2011–2020) issued by the State Council in 2011 requires strengthening training on gender consciousness and incorporating ‘the theory of gender into regular training courses for the legislative, the executive and the judicial departments, and improving their gender consciousness’. Therefore we put forward suggestions that courts at all levels should earnestly implement relevant documents issued by the government and take steps to incorporate the gender theory into the regular training of judges. Thus judges’ gender consciousness can be improved and the legitimate property rights of the wife in liquidation of divorce property can be better protected. Thanks should be given to the following postgraduate students in the Civil and Commercial Law School for their hard work in this survey: ZHANG Qinling, ZHANG Zhiyuan, SUN shuangshuang, LU Xiuping, LUO xibeibei, CHEN Zhao, REN Ding, YANG Yun, SI Yanlu, ZENG Na, YI Li, LU Shanshan, WU Qihun. Footnotes 1 The main industry in this county is agriculture. The GDP in this region in 2014 was nearly 10 billion RMB and it has a population of approximately 0.52million, with agricultural population of 0.46 million. Peasants’ income per capita income was about 6,700 RMB and urban citizens’ disposable income per capita income was more than 18,000 RMB. 2 The value of some property was unknown so its proportion in the community property couldn’t be determined. 3 This is the property brought into the marriage by the wife or from her family, or both. In accordance with Article 18 of the Marriage Law Amendment2001, pre-marital properties are one’s personal properties. The court has no power to divide these personal properties at the divorce. But a spouse has the right to give his or her personal property to his or her spouse or their child. The court would not step in either. 4 Even if the children stay with the wife, there is some difference regarding wife’s rights over these properties. Article 39 of the Property Law 2007 provides that the owner of a property is entitled to possess, utilize, seek profits from and dispose of the property in accordance with law. When one parent donates his or her property to the child, he or she can only possess, utilize and seek profits from the property for the child, but has no disposal right unless for children’s benefits. And if parents’ disposal of the property damages the children’s benefit, they will have to compensate for this. 5 See Chen and Shi (2013). 6 For more information on child care issues upon divorce, we carried out other surveys both in the courts and at the marriage registration offices in Chong Qing, China. See Chen and Zhang (2016). Chen et al. (2017). 7 Shi. (2015). 8 See French Civil Code, translated by Luo Jiezhen (Peking University Press, 2010) 368. References Chen W., Shi L. ( 2013) ‘Divorce procedure in China’ in Eekelaar John, George Rob (eds), Routledge Handbook of Family Law and Policy , Abingdon: Routledge, 111. Chen W., Zhang Q. ( 2016) ‘ The juridical practice of child-rearing questions in divorce proceedings and proposals for improvement’, The International Survey of Family Law  105– 128. Chen W., Shi L., Zhang W. ( 2017) China’s divorce registration from the perspective of children’s rights, Bristol, UK: LexisNexis and Jordan Publishing, 22– 37. Shi L. ( 2015) Research on the Modern Divorce System in England and Wales , Beijing: Qunzhong Press, 209– 215. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com

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International Journal of Law, Policy and the FamilyOxford University Press

Published: Apr 1, 2018

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