Landmark Gay Rights Property Dispute in Shanghai? Not Quite

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Very provocative headline in China Daily:

Court Favors Gay Partner in Pioneering Property Dispute

Wow. Someone write a law journal note quick! The reality of course is much less exciting than the headline would suggest. Right off the top, I should point out that the disputants in the case, co-owners of an apartment in Shanghai, are the only two parties to the case. Therefore of course any ruling would have resulted in the court favoring one of the “gay partners.” Someone didn’t think that one through very well.

OK, here are the basic facts:

The dispute is over a 50 sq m apartment now worth about 600,000 yuan ($87,800) in the city’s Pudong New Area. The defendant, Zhang Bin, and the plaintiff, his companion surnamed Zhan, bought the apartment together in 2004 with both their names on the ownership certificate.

The couple broke up, Zhan sued challenging Zhang’s ownership rights, and he won. The key piece of evidence was a note written by Zhang in 2007 stating that he had not paid for his stake in the apartment. I assume this means that Zhan paid for whatever equity they had.

So what’s the gay rights/marriage issue here? Well, there really isn’t one. As one lawyer quoted in the article pointed out:

“When it comes to gay couples, disputes can be dealt with as if they are two separate investors in an investment. But, practically, the problem could become very complicated and hard to solve, as it’s hard to tell who paid how much for what.”

[Side note: the lawyer quoted is referred to as a lawyer with “broad experience in homosexual cases.” Given the state of the law in China and extraordinarily small number of relevant cases, I doubt the veracity of this claim very much. But that’s what we lawyers do, claim expertise for just about any type of work we can conceivably obtain.]

The court’s ruling was based on the note, and the judge had to determine the validity of the document. Zhang claimed that he had written it under duress, and apparently he had some evidence that he did pay for part of the apartment. The judge thought the note was better evidence.

So the case is not exciting in and of itself, making the China Daily headline a bit over the top. But there is an issue here. What might have happened if China’s Marriage Law allowed for gay marriage? If the couple had been married, Zhang would have had spousal rights and the whole payment/note issue might not have been relevant or determinative.

Perhaps this case, and others like it, can be used to argue for legal reform. I’m not so sure we will see anything meaningful in the area of gay rights/marriage for a while here, but perhaps public opinion is on the side of liberalization?

A 2008 survey by well-known sexologist Li Yinhe showed 91 percent of respondents said they agreed with homosexuals having equal employment rights, while more than 80 percent of respondents agreed that heterosexuals and homosexuals were “equal individuals”.

I’ve never heard of the word “sexologist” and thought it was something the writer mistranslated. Imagine my surprise.