Research On The System Of Property Joint Ownership In Non-marital Cohabitation

The special nature of non-marital cohabitation relationship makes it complicated to determine the property ownership that occurs during the cohabitation.The determination of property ownership can be categorized into two types of issues:whether it constitutes community and what kind of community.By sorting out the current legal provisions on these two issues,it can be found that the logic established by the current law in solving the issue of whether property constitutes community is judged from the source of property,if the property comes from the individual,it belongs to the individual;if the property comes from both parties,it belongs to both parties jointly.In the special relationship of marriage,the same logic of attribution of source theory is chosen.The community property regime,which attributes the income earned by one party during the marriage to both parties,is based on the logic that the property earned by one party during the marriage cannot be separated from the contribution of the other party.In other words,one party’s income is earned based on the joint efforts of both parties.The logic established by the law in resolving the question of what constitutes community is to define whether there is a joint relationship.If there is a joint relationship,it constitutes joint tenancy;if there is no joint relationship,it constitutes tenancy in common.In a non-marital cohabitation relationship,due to the special intimacy of the parties,there is close economic interaction between the parties during the cohabitation period,which leads to the phenomenon of commingling of property to the extent that it is impossible to identify the source of the property.The existing legal system,which takes the origin theory as the core logic of distinction,is at a loss to solve this problem.At the same time,property commingling also affects the determination of the nature of community.On the one hand,commingling of property means that the shares are not clear.On the other hand,the degree of property commingling also represents the degree of intimacy between the parties to a non-marital cohabitation.Whether this degree of intimacy is sufficient to reach the degree of intimacy required for a joint relationship still requires a specific analysis.A search of relevant cases reveals that the judiciary,when faced with a situation of mixed property,chooses the adjudicative logic of presumption of community of the parties.Although this approach can ultimately establish the ownership of property,its justification or empirical rationality still needs to be argued.In this regard,the types of intimate practice and the corresponding types of property practice in today’s non-marital cohabitation in China should be thoroughly explored.Combining the existing studies,we can find the following three types of property practices in the current non-marital cohabitation relationship in China: the property practice with clear boundaries under "love without marriage" cohabitation;the property practice of intimate cooperation under "moving toward marriage" cohabitation;and the property practice of "alternative marriage" cohabitation.The property practice of cohabitation and common property under "alternative marriage".These three types of practices are the products of the current "combined force" of individualism and familism,showing a process in which individualism gradually decreases while familism gradually increases.In this process,the parties have more joint consumption and joint business expenses,resulting in an increasing degree of property commingling between the parties.Finally,on the basis of the above analysis,the rules of property ownership recognition under different types of non-marital cohabitation are established.In the non-marital cohabitation relationship of love but not marriage,the ownership of property is defined only by the rules of general property law in terms of the source of property,and the nature of community is established in accordance with the rules of presumption of the nature of community established in Article 38 of the Civil Code.In non-marital cohabitation relationships leading to marriage,in addition to the establishment of joint ownership according to the theory of origin,if property is mixed during the cohabitation period,it shall be presumed that the property is jointly owned by both parties,and in the case of such cohabitation relationships not living as husband and wife,the presumed joint ownership due to the mixing of property shall be considered as joint ownership,and the specific share can be determined according to the duration of cohabitation,respective contributions and living habits.In the case of non-marital cohabitation of "alternative marriage",if the property is mixed during the cohabitation period,it shall be presumed to be jointly owned by both parties,and in the face of such cohabitation relationship in the name of husband and wife,the presumed joint ownership due to the mixed property shall be deemed to be jointly owned.