A Brief Discussion on the Matrimonial Property System in Mainland China

2023/09/13

When it comes to the property laws in the Mainland China, from time to time people would talk about the “joint property of husband and wife”. In this Article, we would briefly discuss this system.

According to the “Principles of Private International Law” by Professor Du Tao, among different countries the system of matrimonial property can be governed by statutory law or agreement. When the property is governed by statutory law, it can be further categorized into community property system and separate property system. Common law countries and a few civil law countries generally adopt the separate property system, while most civil law countries adopt the community property system. In our country (here refers to the Mainland China), the matrimonial law adopts the community property system in general.

Article 1062(1) of the Civil Code of the People’s Republic of China is the legal basis for joint property of husband and wife, which states that “the following property acquired by husband and wife during their marriage shall be the common property of husband and wife and shall be jointly owned by them”. Therefore, for a couple who domicile in Mainland China, the property acquired during the marriage will generally be regarded as joint property by law subject to agreement to the contrary among the couple.

In respect of the pre-marital property of one of the parties, according to the Civil Code and its judicial interpretations, in general it shall not automatically be converted into the joint property of the spouse simply because of the continuation of the marital relationship, unless the couple has agreed otherwise.

Given that community property regime is the regime for a couple’s legal property in Mainland China, the husband and wife have equal rights to dispose of their common community property. If one party of the couple disposes of a property of a large amount, such as real estate, acquired during the marriage, even if it is registered in the name of only one party of the couple, the consent of the remaining party (who is the co-owner in the eyes of the law) is required. Therefore, we should pay attention to the registered owner of the property when carrying out property transactions in the Mainland China. Even if only one person is registered as owner of the property, clients are generally advised to verify his/her marital status to confirm that such person may dispose of the assets himself/herself.

In addition to the above, the regime of matrimonial joint property has implications for personal life and investment. This is a typical illustration of the differences between the legal systems of the Mainland China and Hong Kong. As a result, when we assist our clients in cross-border affairs, we would pay extra attention to examine whether the clients’ demand could be achieved in light of the differences in legal system.

The information contained herein should be regarded for general reference only and does not constitute legal advice in any form for any matter. In case of doubt, please consider seeking formal legal advice on the laws of Mainland China or HKSAR as appropriate.