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What property items are personal to either spouse under the Marriage Law?

  • Time:2020-05-05
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What property items are personal to either spouse under the Marriage Law? 

According to the provisions of the Marriage Law on the legal property system, any of the following property items of either spouse shall be deemed as the personal property of such spouse: (1) the spouse's prenuptial property; (2) any cost for medical treatment, subsidy for disability, or any other benefit for such spouse due to his/her bodily injury, if any; (3) any property to be inherited or received by such spouse as provided for under any will or gift contract; (4) such spouse's special articles for daily use; and (5) other personal property items. 


Before the Amendment of Marriage Law (2001), "the spouse's prenuptial property" might be recognized as community property under certain conditions, in the judicial practice of the PRC. According to the Opinions of the Supreme People's Court on the Division of Property in the Trial of Divorce Cases (1993), Any house or any other valuable means of production owned by either spouse before marriage but used, operated and managed by both the spouses after marriage shall become community property after eight years since the date of registration of their marriage, or after four years in case of a valuable article for daily use. Such practice is abandoned in the new Marriage Law. According to the Interpretations of the Supreme People's Court on Issues Concerning the Application of the Marriage Law of the People's Republic of China (I) enacted in 2001, any property owned by either spouse according to the Marriage Law shall not become community property as the result of the continuation of the marriage relationship, unless otherwise agreed by both the spouses. And according to the Interpretations of the Supreme People's Court on Issues Concerning the Application of the Marriage Law of the People's Republic of China (II) enacted in 2003, the financial assistance provided by the parents of either spouse for the purchase of a house for both spouses shall be deemed as the prenuptial personal property of and a gift to the spouse which is their child, unless the parents clearly indicated that the gift was given to both the spouses. 


"Other personal property items" shall be interpreted as "property strictly defined as personal in nature in terms of ownership", i.e., such property item shall only be owned by a specific person but not others, otherwise it will deviate from the nature or purpose of the property. According to the Interpretations of the Supreme People's Court on Issues Concerning the Application of the Marriage Law of the People's Republic of China (II) enacted in 2003, The compensation under a casualty policy, disability allowance and medical and living allowance paid to a retired service member shall be his/her personal property; Of the one-time compensation items like military retirement pay, self-employment pay, etc., paid to a retired service member, the amount calculated by multiplying the number of years of the marriage relationship by the annual average amount (which is the result by dividing the total amount of the above items by the difference between the average life expectancy of 70 years and the actual age of such retired service member in the year of retirement) shall be deemed as community property, and the rest shall be deemed as personal property and owned by such retired service member. In addition, it is generally believed that the damages for personal injury and mental injury, etc., are also "other personal property items". 


In addition to the above property items which are deemed personal property according to the legal community property system, the spouses may also agree according to the law that certain property items during and before their marriage shall be deemed as personal property and owned by either spouse. 

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