Marriage, Gender & Housing: Is the Supreme Court Sexist?

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Image via chinaSMACK

The other day, I talked about marriage and how China’s housing market has been effected by recent trends. An even hotter topic these days, however, is divorce, or to be more specific, what happens to all those assets when the marriage is over.

There is still a huge amount of talk out there about the 3rd Judicial Interpretation to the Marriage Law, issued by the Supreme People’s Court (SPC) last Friday. This has been pored over in great detail and been debated for months (a lot is at stake for families, after all), but the most attention seems to be focused on acquisition and disposition of real property.

No big surprise there. As I discussed a couple days ago, the ownership of major assets is the underpinning of marriage in China today. Couples that get hitched without a home or car and an expensive ceremony are referred to as entering into a “naked marriage,” which is definitely a pejorative term.

OK, so let’s get into the details. Consider a few different scenarios and how the new Judicial Interpretation would handle disposition of marriage assets in the absence of an agreement between the parties:

1. Groom’s parents buy house, which is put in his name.

The SPC tells us that the husband gets the house under these circumstances. (I’ll get back to why this has caused an uproar in a minute.)

2. Groom’s parents make down payment, house is in his name, and husband makes payments “from his own funds.”

Again, the husband will get the house upon divorce. You may be asking how the court determines what are his own funds and which are community property. Good question. I consider that to be a huge flaw; there are too many ways for folks to move funds around fraudulently. I also personally believe that once you get marriage, the notion of separate incomes is ridiculous.

3. Groom’s parents make down payment, house is in his name, and payments are made jointly.

Slightly more complicated. The house would go to the husband, but both the value of the joint payments plus a pro rated share of any capital gain would go to the wife.

With me so far? The attempt of the SPC here is to apportion value based on which party (or their parents) put in the money. There are many other fact patterns I could throw out here, but the three above give you the general idea.

Now, why has this freaked out so many people, particularly women, and is the criticism fair?

The system confirmed by the SPC certainly seems neutral at first glance, and I’ve read many attempts made by (predominantly male) lawyers to defend it. But ultimately I think they’re wrong, and the SPC is not living in the real world.

As the debate over “naked marriages” illustrates, the ownership of major assets is increasingly the price of marriage these days. In other words, many brides are choosing husbands in part because of their wealth. Whether you think that’s good or bad is another matter.

Why should women care about such assets? Home ownership signals financial stability, or security. Someone who is thinking about starting a family wants to know that there is a stable platform upon which to build. Makes sense.

But what is the expectation after the couple get married? Here’s what could happen under the new rules:

1. Couple meets. She is impressed by the size of his . . . assets.

2. They get married.

3. Feeling secure because of those assets, they have a child.

4. Several years later, things go sideways and they get a divorce. Husband retains ownership of the house.

Hey, it’s fair. He paid for it, right? Well, let’s see. Do you still think it’s fair if the wife sacrificed her career for the marriage, devoted a great deal of time doing (uncompensated) domestic work, and is now X years older, single again and homeless?

Some have said that the new rules are geared towards mistresses. Indeed. Under the above fact pattern, that husband can walk away from his marriage with his assets and marry his (probably much younger) mistress, in essence casting away the older wife with a limited financial penalty.

I can understand why women are pissed off. They perform their intensive due diligence on a potential husband, ensuring that he is loaded and has a nice home, but then it turns out that she won’t be able to hold onto that asset anyway. What’s the point, then?

To add insult to injury, the system is not set up to accommodate spouses looking to avoid trouble. For example, let’s say a nice couple reads about all this and says, “You know, the house is in my name only. Let’s add yours to it as well and make it community property.” Great! But oops, if they are still paying off a mortgage, they can’t make that change until the note is paid off. Not a very user friendly system.

There is an easy fix to all this of course, and it’s called a contract. The Judicial Interpretation allows the spouses to proactively dispose of assets by agreement. On the other hand, do we really want all marriages to begin with the inherent cynicism of a pre-nuptual agreement? Kind of a buzzkill, if you ask me.

So what are we left with? A new set of rules that look fair but in reality favor men (and their mistresses) and make it more likely that wives will be left in the lurch. The SPC either doesn’t understand why homes are so important to potential brides or they purposely discounted those concerns. Either way, these judges need some gender discrimination sensitivity training.

12 responses on “Marriage, Gender & Housing: Is the Supreme Court Sexist?

  1. Tim

    I agree that this interpretation of marriage law is easily manipulated to favor the homeowner (I assume it’s gender neutral in terms of the down payment and mortgage payments?); however, you intentionally ignore the original intent of the woman upon acceptance of betrothal but then argue about her opportunity costs at the divorce.

    If a woman (or man for that matter) who has little to no career prospects or interests, primarily seeks material gain from a relationship, then contributes very little to the marriage itself (other than having a child that is then given to the grandparents to raise) is being divorced; what is a fair way to determine a value for her time in the relationship? Or is it really that common that these women are generally very ambitious with strong career prospects that they throw away for assets that they themselves could likely afford?

    1. Stan Post author

      It is neutral on its face, so yes, the homeowner in that fact pattern could be a woman. Just doesn’t happen as often, of course.

      Are there lots of gold diggers out there? Sure. I’m assuming that more often than not, each spouse is contributing to the marriage in some way. Historically, a woman’s contribution to her marriage has been grossly undervalued in terms of child rearing, domestic work, etc. If we want our law geared towards those situations where a money grubbing girl marries a rich guy, has a kid and let’s the grandparents raise it, and contributes nothing to the marriage, then yes, we can do that. Depressing, though, and I’d question the basis for doing it that way. Do we need some sort of statistical evidence here?

      1. Sam

        It may not be fair to some women at this moment, but once established, gold diggers will quickly figure out a way, e.g., as the precondition of the marriage, the groom’s parents must make the down payment or pay it off then put the title at least under both names.

        You also need to consider the gender balance here. Women is not necessarily the weaker side of the two, and as far as I know, many men do at least half of the house work. I think, at least in the cities, the weaker, disadvantaged women stereotype is largely gone. Not many men can afford mistresses, and for those who can, their wives have many means to punish the husbands, with or without this interpretation, referring to a few recent high stake divorce cases.

        This new interpretation at least reduces the possibility of future disputes by making clear what belongs to whom right in the beginning.

      2. Tim

        I think that we do need some number to discuss this. If for no other reason than to understand the prevalence of naked marriages. The problem with anecdotal evidence in a country this large…, well you’ve already responded to that in a recent post. I am not convinced that the majority of men that are getting hitched these days have secured assets in their own name. I just do not see how this could be true if there is such an enormous disparity in the distribution of wealth.

        No doubt domestic work is undervalued and this interpretation of the law does not address this issue well. However, if society tell you that the man’s assets have to be the underpinning of your relationship with him isn’t that a form of sanctioned excavation of precious metals? It was always my understanding the grandparents often play a significant role in child rearing here and with domestic help being just as undervalued, it’s rather easy to see how a woman could easily marry wealth and contribute very little to the partnership.

        What is depressing here is not the law itself but society’s warped sense of how it defines a ‘good’ marriage. And for the successful, career minded women out there, it is even more depressing.

  2. Sam

    Throwing names like sexist is quite easy in a political correct world. But if the interpretation is geared towards “protecting women”, the obvious unfairness would have larger social impacts. Marriage will become a major asset transaction that unfairly tilted towards gold diggers. Whose parents in their right mind would want to give away upfront a large portion of their assets to a women they barely know, who can ask for divorce the day immediately after the wedding? The end result will be that the parents will not give away the houses. The title will be under their own names, the groom and the bride will have none of it, only allowed to live in it. Once established, people will react by either not marrying, marrying only among their ranks, or demanding prenups. Either way it will be a law induced, well intentioned social revolution gone bad.

  3. S.K. Cheung

    This law makes things ass-backwards. Whereas in some places (north America for instance) the law protects most marriages in terms of division of property, but where sugar-daddies and sugar-momma’s need to protect themselves with pre-nups, in China now the sugar-daddies are free and clear, while the majority of marriages should come with pre-nups. As Stan says, unpaid domestic work becomes totally devalued. Which intelligent wfe now would forgo her career to stay home with the kids?

    1. Patrick

      SKC – absolutely. And when you are earning more that what you would pay an Ayi – you pay an Ayi. Only fools stay at home with the kid(s). And *even* then you just need to stay at any of the upper stores to see that the wife will refuse to stay at home without an ayi. Or two (one for cleaning, one for the kid(s).
      Historically in China, housework is not seen as having any value, it’s what expected of you, as a woman. So, if you earn so little that you can;t afford to pay for an ayi, that’s your problem, if you have an ayi or two, then what is your problem?
      In the end it is always down to fights the most and is the most cunning. It’s quite sad. Being a good guy or a good woman is being a loser.

      1. Stan Post author

        Patrick–

        “Being a good guy or a good woman is being a loser.”

        Extremely good observation. Very common mindset out there, which is indeed sad.

  4. Patrick

    A quick response,

    Many ownership and title deeds are ficitious, it is not unusual for someone to use a ‘prête-nom’ so they can get the loan or a better placed appartment (ie guanxi), or even to get an appartment at all, ie that person has the option to buy an appartment and resells this option on to someone else. Also, you will have entire familes gang up to buy sets of appartments when for example a family is only allowed to buy one low-cost, they arrange their hukous to look as if they are all separated, and claim multiple appartments that they then resell or keep empty as investment.
    The owner (ie I own this place and live there) versus the actual owner on the legal deeds or the person supposedly paying the loan is a quagmire.
    I think that the number of deeds done like this is quite high, and many people will also hide their real value from husbands or wives, they have no desire to lose their money. This is esp the case as you move up the $ ladder, and as people have more and more incentives to also evade tax payments. This also means that if something goes wrong you only have lost maybe one car and appartment, but your 20+ other appartments are all safe. As you pile on mistresses you must also pile on safeguards.
    Now the gender imbalance means that the converse will also happen – someone who is desperate to find a wife will lay on all their wealth only to get stuffed by the gold digger. So in effect, these laws may be laws, but the reality on the terrain is that everyone is fighting to get or keep their slice of the pie or to keep it, and only the weak or foolish will lose.
    And finally – these are the `laws`, ie they set out what to expect if you end up going to court. I wonder what proportion of these cases actually get to court. The incentive is to solve this internally, then use thugs, then use guanxi (or guanxi then thugs), and finally when nothing is left, the police and the courts?

  5. David Thorpe

    Let’s be honest though China is run by mostly men and men make the rules/ laws so it is not unfathomable to think that the laws would be skewed towards men. In general I believe these rules would also keep women more submissive, because the repercussions of divorce are definitely not in the woman’s favor. Which in essence is more likely to keep marriages together and with much less ending in divorce. I think it would be interesting to see if the divorce rate in China begins to trend downward?

    1. Stan Post author

      Because of legal reform and recognition of property rights, divorce rates have trended upwards in recent years. If these new rules contribute to a lower rate, that would be a damn shame IMHO.

  6. Kevin

    Well, I think this is overblown. In Nanjing you can pay a tax and put the spouse that didn’t buy the house on the ownership certificate. Same with Chongqing and my guess is that since the tax is new, it will proliferate throughout the municipalities and provinces. My Chinese freinds are not losing any sleep over this as culture always takes over regardless of tax and/or the law.