A Discussion Of The Division In Marital Common Housing Property In Divorce Cases

After the founding of the People’s Republic of China, the latest Marriage Law in thePeople’s Republic of China (hereinafter to be referred as Marriage Law) was published in1980, and modified in2001. More than ten years ago, the rules on property only took littleparts in marriage law; and most of them were principle clauses. Since2001and2003anduntil the end of2011, China had issued three judicial interpretations of the marriage law,which related to the terms of the marriage property gradually increased. The dispute ofproperties division cannot be avoided in divorcing cases that are sued in court at the most ofthe time. So the marital property relationships which ruled by legal adjustment is particularlyimportant.No families can depart from the issues of houses. In nowadays, the price of the house istoo high for every family to afford. Especially after the Judicial Explanation of the MarriageLaw (Three)(hereinafter to be referred as Explanation Three of Marriage Law) came out, therules of the personal property between husband and wife has become more perfect as them inthe Judicial Explanation of the Marriage Law (Two)(hereinafter to be referred as ExplanationTwo of Marriage Law). Meanwhile, the power of protection for personal property of housingis becoming more and more strictly by lawmakers. The results of the cases could havechanged after the appearance of Explanation Three of Marriage Law; for instance, the litigantcould get some rights of the housing property according to the previous clauses but cannotnowadays.In many divorcing cases, the dispute of housing property division, the litigants seldompredetermined the ownership of property, or signed a prenuptial agreement. As it to normalcases, the provisions are automatically applied to the legal property system in the marriagelaw to identify the ownership of personal property or the common property. Therefore, in theterms of the Marriage Law and the latest explanation on the provisions of building propertyright, to the divorce, is the basic standard of the judgments. Therefore, it will be deeplyanalyzed with split housing property right of divorce property dispute from many sides;expounding the relevant legal issues of housing property in marriage relationship; pointingout the shortcomings of the housing property system in marriage in China while referencing the rules in other countries; suggesting in some aspects and hoping to arouse a deeper level ofdiscussion in this dissertation.The following four parts are concluded in this dissertation:In the first part, we try to draw out the outlines of the topics discussed in this dissertationand find out direction from the literature review of several simple property cases of divorce.Some question will be put forward in splitting housing property of divorce by summing up thedispute points from cited cases in this part.In the following part, basic theories about the division of housing property of divorcewill be discussed. In this part, the disputing problem of building property right in divorcingcases will be analyzed from the aspects of historical reason, social status and economicattribute etc.In part three, the introduction and analysis will be taken in the principles of buildingproperty within the marriages in China; and it will be compared with the principles in othercountries. Through comparing the ownership of property in divorcing between the CommonLaw and the Civil Law, especially the relevant clauses of the segmentation and practices inthe house property cases of divorcing, make a better explanation of the divisions of theprinciples and rules in housing property and the right of divorce proceedings.In the last part, the imagination of the system of division in the right of marital buildingproperty in divorcing will be taken. In this part, discussion will be taken according to theconflicts of interests between the existing laws and complex social reality in the cases. At thesame time, referencing the principle of other countries and then putting forward suggestion ofrights division of housing property of divorce will take a large account in this part.