The Range And Principle Of Division Of Common Property In Divorce In Chinese Law

Marriage law and Marital property system have a set of principles and policieswhich include maintaining the stability and harmony of the marriage, equality of thesexes, protecting the interests of the weak, taking into account both the interests of thespouse with a third person and so on. These principles and policies are determined bya series of factors: the nature of marriage, the development of the economy,traditional practices, and the status of men and women. Considering all these factorsand polices, China choose marital joint property system as the statutory maritalproperty system. The most popular opinion of the basis of this system is the jointefforts of husband and wife.As the quantity and the value of properties which are owned by private aregrowing significantly in this era, people’s attention to protect their ownership isstronger. In order to adapt to the changes, Marriage law needs to limit the range ofcommon property and to expand the scope of husband’s or wife’s personal property.But the legislation of China is not suitable for this. Comparing with other countries’legislation, we could find our Marriage law needs set a common clause of commonproperty and a clause about personal property which should be excluded from theformer. Of course, we also need the standard to distinguish a couple’s commonproperty and a party’s personal property.To the question of the separation of common property, some researchers appealto use the principle of fairness instead of average segmentation principle. In theiropinions, equally division of common property between the couples is not fair for the weakness which usually is the wife. This is untenable. The principle of fairness is thegeneral principle of Marriage law and every law. In the circumstance of dividing thecommon property, equally division is the fairest. Further, fairness will not obtainedonly if division system is accompanied with other systems, such as divorce damagescompensation, housework compensation, and economic aid and so on.But where is the proper border of the common property? The standard is acouple’s joint efforts. There is no joint effort in property obtained from inheritance orgift, so this property is private. Diploma or certificate is not even property, not tomention the division as a common property. They are just the identification of theirholder’s ability. The way leads to the fairness is the divorce compensation system.