Research On The Legal Basis Of The Marital Property Distribution

Depending on the applicable cases, conjugal property system is divided into general community property and special community property. In normal case, community of property is sufficient to adjust marital property relationship. However, community of property is difficult to protect the private property of husband and wife under special conditions for its inherent defects. Most countries stipulate special community property to surmount the disadvantages of community of property. Special community property is used to guide the judicial practice of common property partition in the marriage in these countries. Whether the couple are allowed to divide the common property in the marriage or not is not clearly prescribed in the Marriage Law of China which stipulates married couple’s common property as legal husbands and wives property system. In realistic life, sometimes it happens that one of the spouses seriously infringes marital common property by various means. The couple petitions the court to divide the common property in the marriage under these particular cases. At this background, the Third Judicial Interpretation of The Marriage Law of China formulates some necessary conditions in which the couple can petition the court to divide the common property in the marriage. The judicial interpretation is on the base of the provisions of joint ownership in real law and common regime after marriage in the Marriage Law of China. The judicial interpretation is regard as an additional regulation to community of property. There are some defects of the judicial interpretation due to the absence of the unusual property system. First, the range of legal causes is too narrow. Second, it has no effect of applying respective property system. Third, there is no effective relief channel to the creditors. Comparatively speaking, special property system provides more legal causes for the couple or their creditor, while providing their creditors specific remedy approachs. Besides, special property system can repeal community of property. Therefore, it can be seen that special matrimonial regime can overcome the disadvantages of the husband and wife mutual property system thoroughly, protect the spouse’s common property rights and maintain marital harmony and stability. In order to improve the defects of the Third Judicial Interpretation of The Marriage Law of China, I suggest that The Marriage Law of China should establish special property system to supply legal basis for dividing the common property according to relative legislative experience. In this paper, I use comparison methods, case methods and legal hermeneutics research methods of legal interpretation to study the subject.