Discussion On Identification Of Matrimonial Debt

Since beginning of modern times, concepts of freedom and equality have been becoming popular among people. With change in people’s world outlooks and values, divorce isn’t deemed as a new and rare issue. Because of rapid economic and social development, people are having increasingly frequent communications and exchanges in their daily life and an increasing number of debtor-creditor relationships. When a marriage is terminated, there is no longer personal right between the divorced couple and their property rights and interests are also being separated. When property rights and interests are being handled, identifying matrimonial debt is of important practical significance for resolution of civil disputes and balance of legitimate rights and interests of parties concerned. However, it is still very difficult to identify matrimonial debt based on the current laws, regulations and judicial environment in China.Marriage Law enacted by the National People’s Congress of the People’s Republic of China only has a general provision, namely that any debt incurred because of marital life should be deemed as matrimonial debt and jointly repaid by the divorced couple. However, such provision doesn’t clarify definition of matrimonial debt, circumstances under which a debt should be identified as matrimonial debt or how to assume liability as for matrimonial debt. As for how to understand and apply matrimonial debt as described in Marriage Law has been a continuing dispute in the theoretical circles and practical circles. Although it is commonly believed that matrimonial debt should be limited to any debt incurred for marital life based on the teleology, researchers and scholars have different understandings on marital life, which results in the difficulty in implementing uniform practice. Enacted by the Supreme People’s Court of the People’s Republic of China in 2003, Interpretation of Marriage Law(II) still included no clarification on the concept of marital life but stipulated the basic principle for identifying matrimonial debt, namely duration of marriage based on presumption theory, after which identification of matrimonial debt became easier to a large extent. As long as the fact that debtor-creditor relationship is established during a marriage can be proved, such debt should be identified as matrimonial debt. However, with continuing deepening of judicial practice, disadvantages of presumption theory are being revealed. Fictitious debt or fake divorce harms not only interests of parties concerned but also a great environment for rule of law. Generally, some factors such as unclear legal concept, judicial interpretation, disordered legal hierarchy and unclear responsibility assignment for burden of proof cause the judicial dilemma in identifying matrimonial debt.In this paper, based on the practical dilemma in identifying matrimonial debt and causes of such dilemma, unification of definition, nature and scope of matrimonial debt at the legislative level is put forward. From the perspective of judicial level, burden of proof should be reasonably assigned between parties concerned, and people’s courts should carry out appropriate informing and expounding procedures when hearing relevant civil cases in order to guide parties concerned to participate in legal proceedings and safeguard their legitimate rights and interests.