The Legal Analyse Of Returning Betrothal Gifts Due To Division Of Assets Based On Cohabitation Relationship

The two suits of laws of marriage, which were made after China was founded and the amendments on laws of marriage issued in2001, highlighting the protection of freedom of the marriage and abandoning the traditional views on marriage fail to express regulations on betrothal gifts. In2003, Explanation (Ⅱ) on Many Issues Applicable to Marriage Law of the People’s Republic of China by the Supreme People’s Court was issued and in its Article10clear regulations are made on how to handle the marriage betrothal gifts in practices. And as a result for the first time the marriage betrothal gift issue has been transformed into a legal way with the judicial interpretation from the folk way. Now in our country, especially in most country areas, the custom of betrothal gift before marriage, which was originated in West Zhou Dynasty in "Six Courtesies", is still widely recognized and observed by the public. But compared with that in before liberation the nature of the betrothal gift has changed fundamentally. It is no more than a custom existing in the social life rather than a symbol of buy-sell marriage, and it cannot interfere with the marriage freedom of the parties which are engaged in the marriage as in the past.At present in the countryside, for factors such as considering the ideas of preferring boys to girls, short time due to work out of hometown depriving the time for marriage registration and avoiding pregnancy check for family birth planning, some persons who are suitable to be married will live together as husband and wife after holding a wedding ceremony according to the traditional customs after delivering marriage betrothal gifts and settle the engagement relationship, without making registration in the civil administration department. After living together for a period of time, due to weak base of emotion and affection, social lures and many other reasons, any one or both parties come to the court to demand to split the cohabiting relationship, paying back the marriage betrothal gift presented before and solving the problem of raising children based on this stuprum relation, and so comes the marriage assets dispute. In actual lawsuits, the explanation that betrothal gift shall be returned to the man due to division of assets based on stuprum relation by the Supreme People’s Court conflicts with the practical betrothal gift custom in life. If this case is settled as per the regulations in the laws, the betrothal gift receiver (usually the wife) often cannot accept the judgment compared with the husband, as in the actual life she is in the weak position especially when she is pregnant and lives together several years with the betrothal gift payer (the husband). If the wife has to return the betrothal gift after giving birth to a baby, she cannot accept mentally, which consequently will cause unfairness in legal appliance and failure in the harmony between the legal effect and the social effect. The study on this issue undoubtedly brings important theoretical and actual significances.This paper, first introduced and analyzed two cases on requesting to return betrothal gift due to division of assets based on stuprum relationship. Then, it reviewed the history of the marriage gift custom in our country, analyzed the meaning of betrothal gift due to division of assets based on stuprum relationship, its legal nature and its relationship with other assets, making clear the practical base of betrothal gift phenomenon and its origin, and elaborated the detailed problems and disadvantages in marriage gift repayment. Next, it elucidated the necessity of legislation on marriage betrothal gift return to coordinate the conflicts between the legislation and customs. Taking the present customs and social practice involved, it proposed some detailed legislation advices on marriage betrothal gift in the cases of marriage betrothal gift, division of assets and children raising based on stuprum relationship, to make regulations on the amount of the betrothal gift under the protection of the laws and to avoid the adverse affects caused by high amount of marriage betrothal gift. At last, this paper recommended that the legal explanation on betrothal gift by the Supreme People’s Court shall be amended so as to unify the social effect and the legal effect of the laws during judicial practices and maintain the judicial authority.