Author: Yan Xueming December 28, 2016

Article 7 (1) of the recently issued Interpretation of the Marriage Law stipulates that "real estate purchased by one parent for their children after marriage, with the property rights registered in the name of the child of the investor, can be regarded as a gift only to one of their own children in accordance with Article 18 (3) of the Marriage Law, and the real estate should be recognized as the personal property of one spouse." This has caused a great uproar in society, I personally believe there is ample room for discussion.

Firstly, does' deemed gift 'refer to a gift of a house or a gift of money? These are two completely different things. Parents who transfer their house to their children are a gift of the house; Parents' contribution to buying a house for their children is a gift of money. According to the description of the law, "the real estate purchased by one parent for their child, with the property rights registered in the name of the investor's child," is clearly not a gift of a house, but a gift of money. Does the property naturally belong to a child who uses the money donated by their parents to buy a house? Can the source of money determine the ownership? According to the provisions of the Marriage Law, during the existence of a marriage relationship, if there is no special agreement on the purchase of immovable property, it is the joint property of the couple, and it is not important where the money comes from. It is very inappropriate to use the source of funds as a requirement for defining property rights in Marriage (III) 7-1. Not only does it confuse the different legal relationships between price and ownership, but from a practical perspective, it is likely to create new confusion. For example, if one party buys a house after marriage and falsely claims that the money was given by their parents and is registered in their own name, they can openly turn their shared property into their own, which is extremely detrimental to the party who does not control the family's property.

Secondly, can the registration act be regarded as an agreement between the husband and wife regarding the property rights of the house? Only when 7-1 of Marriage (III) holds a positive attitude towards this can there be a provision that "if registered in the name of the investor's child, it should be recognized as the personal property of one spouse". The key to the question is whether this logic can hold true. According to Article 18 (3) of the Marriage Law, the property donated after marriage is only personal property when it is determined in the gift contract that only belongs to the husband or wife. This means that the donor must clearly indicate it, and if there is no such indication, it can only be considered as joint property. Marriage (III) 7-1 avoids this key point and replaces express expression with registration, which is suspected of grafting flowers and trees.

Real estate registration is a public disclosure of property rights, but it cannot be regarded as an agreement between the couple regarding property rights externally or internally. In real life, it is very common for couples to only write one person's name when buying a house. On the surface, the reason is that writing two people's names is too complicated. When signing a contract or handling a transfer, the two people must personally sign in person, and in the future, both parties need to be present when handling mortgages and transfers; The most fundamental reason is that according to the Marriage Law, when buying a house after marriage, no matter where the money comes from or whose name is written, the house purchased is jointly owned by the couple, so it does not matter whose name is written. Before the introduction of "Marriage (III)", everyone knew that buying a house during marriage was a shared property. Therefore, the lack of a name on the property certificate does not mean that this house has nothing to do with me. Now suddenly saying that it is the other party's personal property actually changes the existing property order and undermines people's expectations of the consequences of legal actions based on marriage law. This provision should be considered a significant revision of the Marriage Law. It is not without reason that people call it the "New Marriage Law".

What exactly does Marriage (III) 7-1 want to protect? The person in charge explained that not doing so would violate the original intention of the contributing parents. This reason is quite farfetched. Legally, only the true expression of intention is considered, regardless of the "original intention". If parents give money to their children, the true meaning is already expressed. However, if they are not filial, can they claim back the house or the payment for the house in violation of their "original intention"? In addition, it is also unreliable to infer the true meaning through registration. If the parents of the man paid for the house and registered it in the name of their daughter-in-law because their son was abroad, can it be considered that the "original intention" of the parents of the man was to give the house to their daughter-in-law alone?

Originally, according to the principles of the Marriage Law, property acquired after marriage, if not specifically agreed upon, is considered as joint property of the couple. This is beneficial for protecting the non controlling party in the family and maintaining good customs. Article 22 (2) of the Interpretation of the Marriage Law (2), issued in 2004, stipulates that "if a party's parents contribute to the purchase of a house for both parties after marriage, the contribution shall be recognized as a gift to both parties, except for those whose parents clearly indicate the gift to one party." This is consistent with the principles of the Marriage Law. Why change after only 7 years? In recent years, the gap in property status among different social classes has been increasing. The existing regulations are not conducive to protecting the advantageous side of property status and the advantageous side of family background. Simply put, they are not conducive to the wealthy and official generations. It is worth pondering who the new regulations lean towards and whose interests they represent.

It is understandable that a party with a superior economic status should guard against borrowing marriage to cheat money, but as long as it is clearly agreed, it can receive legal protection. Pretending to be generous before marriage, regardless of you and me, and waiting until the relationship breaks down before revealing it, is it cheating marriage with money? If the law supports this practice, the economically disadvantaged party will only have the desire to cry without tears. This may not be in line with fairness and justice.