No Gold Diggers: China's Protection of Individual Property Rights in the New Marital Property Regime

Article excerpt

I. Introduction

"I'd rather cry in a BMW car than laugh on the backseat of a bicycle." After infamously rejecting a potential suitor on a popular Chinese dating show in May 2010,1 Ms. Ma, a then 22-year-old model from Beijing, instantly became one of the most widely talked about women in China.2 Many Chinese expressed outrage towards Ms. Ma's cavalier comment and condemned her "money worshipping" attitude.3 Yet, many would also agree that Ms. Ma's statement was an accurate depiction of the materialism prevalent in modern Chinese society.4

Today, men5 (and their parents) fear "gold diggers" like Ms. Ma and the accompanying "flash divorces," in which a woman would "[w]oo the man, move into the house, divorce the man, take the house."6 This fear is not exactly unfounded: the notion of home and car ownership as marital prerequisites is deeply engrained in Chinese mentality.7 Meanwhile, divorces-most of which involve property disputes8-have been increasing at an annual rate of 7.6% over the past eight years.9 As real estate prices in China also continue to soar,10 parties entering into marriages with property now risk losing much more coming out if their spouses take half of the property upon divorce.11 More accurately, the parents of divorced males now risk losing much more, since parents in China traditionally purchase homes for their sons to improve his marital prospects.12

Chinese citizens are not the only ones concerned: gold diggers have also caught the attention of the Chinese government.13 The government of the People's Republic of China (PRC) often uses law as an instrument to target undesirable social conduct and shape citizen behavior.14 In the case of Ms. Ma's outburst, for example, the government quickly responded with a new set of harsh rules governing China's dating shows.15 The government restricted the broadcasting of "[i]ncorrect social and love values such as money worship" and cautioned the contestants against "mouthing venturous remarks."16

On August 12, 2011, China's Supreme People's Court (SPC)17 responded to mounting concerns regarding marriage, property, and gold diggers by issuing a new interpretation18 of the Marriage Law of the PRC (Third Interpretation). This new interpretation clarified the manner in which a marital home19 should be divided during a divorce.20 Before this interpretation, the marital home was presumed to be marital property (i.e., propertyjointly acquired during marriage and subject to division between divorcing par- ties),21 regardless of when it was purchased or which party held title.22 The Third Interpretation replaces this presumption with one in which a home acquired by and registered to one party before marriage is now considered the separate property of that party, not subject to division upon divorce.23

This new interpretation sparked heated debate among the Chi- nese citizenry,24 as well as in academic and professional circles.25 Because this change in the law would affect mostly women,26 some advocates of gender equality condemned the new interpretation as a reversion back to the feudal era of gender inequality.27 Others, however, saw it as a clarification of the law and a laudable step by the government for greater protection of individual rights.28

This Note will focus on the two most contentious provisions of the Third Interpretation, Article 7 and Article 10. Article 7 classi- fies any real property given to a party by his parents as that party's separate property.29 Article 10 concerns property that one party purchased with a loan before marriage, but for which both parties paid the mortgage using marital property.30 Article 10 stipulates that in the event of a divorce, this type of property shall belong to the party that purchased the home prior to the marriage, subject to that party's compensation of the other party for mortgage contri- butions and appreciation in value.31 This Note will argue that Arti- cle 7 is a consistent extension of China's legal movement toward greater protection of individual rights while effectively addressing the social problem of gold digging. …