CHINA’S LATEST MARRIAGE LAW AMENDMENT AND FAMILY PROPERTY： TRADITION AND MODERNITY

Abstract

China’s latest Marriage Law amendment illustrates how tradition contributes to China’s modernity. Traditionally, a house was a necessity for a marriage in China. This is because in ancient China, marriage secured the continuation of the family line and provision for ancestors. In modern China, the one child policy and soaring housing prices collectively force the “three families” to buy a house for the new couple. However, what happens when the couple divorces? Shall the house then be considered community property? The 2011 Judicial Interpretation of the Supreme People’s Court of Several Issues on the Application of the Marriage Law of the People’s Republic of China, provides that where real estate is purchased by the parents of one party, and after the party’s marriage is registered under the party’s name, such real estate shall be deemed as a gift given by the parents to the party and the party’s personal property. This interpretation represents a compromise between tradition and modernity. The article will firstly introduce the marriage system in ancient China, illustrating that under the doctrine of li, the real purpose of marriage was to be a bond of love between two (families of different) surnames. Retrospectively, this secured observance of ancestral rituals in the ancestral temple, and prospectively, continuation of the family line. The house was a necessity for marriage because one of the six ceremonies required for marriage under li was the procession, and then welcome of the bride at the groom’s home. (Other ceremonies involved a matchmaker securing a proposal, matching auspicious birthdates, exchanging gifts between the bride’s and groom’s families, setting an auspicious wedding date, honoring ancestors and deities, and having an elaborate banquet). The article will then analyze the marriage law in the of Republic of China, in which even the post-dynasty marriage law adopted the western marriage system, the strong resistance of the old tradition forced the law-maker and the court to blend into the marriage law some traditional elements, making it a hybrid of tradition and modernity. The article also pointed out that the Marriage Law of People’s Republic of China wiped out textually almost all the traditional influence. However, the generally accepted rule which considered post-marriage assets as community property, led to intergenerational social, economic, and legal issues that could not reconcile tradition with China’s rapid urbanization. This urbanization has been compounded by the one-child policy and rising divorce rates. The article will then explain how due to the tradition of the bride’s welcome at the groom’s home, even today people are unwilling to have a “naked marriage” (getting married with no house, no car and no thick wad of banknotes). The latest judicial interpretation of the marriage law pragmatically responded to the phenomenon in the new era with a strong tradition embedded in it. In sum, judicial interpretation indicates that in a country with a long history such as China, traditional legal culture is a necessary lens to examine contemporary social changes.

RIGHTS & PERMISSIONS

2014 Higher Education Press and Thomson Reuters