On The Identification And Division Of Common Property Of Couples

With the rapid development of economy and stable improvement in the living standard of people in modern society of China, changes in both qualitative and quantitative aspects have occurred to family property. Property of new types not only injects new content into the relationship of marital property relationship, but also complicates the identification and segmentation of property in divorce. Meanwhile, the divorce rate is increasing year by year in China, which also applies to the less developed medium and small-sized cities and rural areas. In this case, the ownership of property in divorce becomes the focus of dispute on both sides. In view of public requirements, China has successively promulgated marriage law and three judicial interpretations, trying to provide legal basis for identification and segmentation of complex and controversial marital property.In fact, due to the simplicity of the marriage law system, it doesn’t make a clear regulation for loads of problems; in addition, some rules were made merely according to the samples in metropolitans. The ignorance of the special situation of medium and small-sized cities and rural areas leads to a highly frequent occurrence of the infringement on the rights of marital property. Therefore, by regarding the ownership of medium and small urban and rural divorced marital property as research objects, this paper comprehensively analyzes 121 cases which were brought to second instance in the intermediate people’s court of a mountainous area in Fujian province from 2010 to 2012. On the basis of the survey data, it points out the main problems in practice, and comparatively studies the similarities and differences of related regulations at home and abroad. Ultimately, taking the reality of our country into account, this study puts forward some legislative suggestions for identification and segmentation of community property, so as to further consummating the marriage law system of our country.The present study adopts a variety of research methods, such as empirical studies, case analysis, literature research method, comparative studies. The article consists of three parts excluding the foreword and concluding remarks.The part one summarizes the case research investigation. By way of charts and diagrams, it first presents the general situation in the investigation, including the domicile and age of litigants in divorce proceedings, whether the cases are related to identifying and dividing assets and so on. Second, it briefly describes the recognition circumstances of marital property by court in survey, for instance, determination of the community and personal property. Then, it mainly demonstrates the segmentation circumstances of community property in case by bar charts, taking the principles and residential property as an example. Finally, it summarizes and analyzes the data, and points out the problems of recognition and segmentation community property in practice.The part two makes an analysis of the specific problems in relevance to identification and segmentation community property in the survey. This part points out the three main problems of China and potential solutions. The first problem is the identification of the fruits of personal property after marriage. After investigating the real cases and comparing home and abroad legislation, the study accounts it for the drawbacks of current law regulation. The second is the division of housing property. The inapplicability of current laws to the two types of real estate:houses purchased by couples on mortgage, and without property right across the countryside. The third involves other aspects, including the unclear definition of the scope of jointly owned property, the controversy of principles applying to the segmentation of the couple’s assets, and the reflection on some cases that the court refuses to accept.With the aim to solve the above problems, the part three puts forward suggestions and solutions from the viewpoint of legislation. First, the fruits of personal property should be treated according to the specific case on its merits. Second, it should be amended that the regulation concerning house purchased by the couple on mortgage in article 10 of Judicial Interpretation Three. Specifically, it should not only take payment and house registration into consideration when the court determines the ownership, but also refer to marriageable age, economic capability. Besides, specific rules for one of the spouses who didn’t have register getting the house in divorce proceedings and institute the rules for compensate should be regulated. As to the houses without property registration, judgment should be given along with other matters in court. Third, our country law ought to set the rules that apply to community property after marriage, and limit Other issues to Other issues related to personal rights. Four, the study advocates abolishing the no fault principle in medium and small cities and rural areas, and replacing equal division principle with fair division principle, and, at the same time, setting three reference factors when it comes to suit fair division principle. At last, a different mode of trial for specific cases and actual requirements of the parties ought to be adopted by the jurisdiction, rather than rigidly splitting trial according to the provisions of judicial interpretations.