Some people think that one spouse has only half of the right to donate the property, and therefore, the donation shall be partially invalid; as a result, half of the donated property should be returned.
The judicial practice holds that the common property relationship between husband and wife is a typical common property relationship. The co-owners should have the right to share the common property regardless of their specific shares. The co-owners can only request to split the joint property if the basis is gone. As for the circumstances under which the common property of husband and wife can be split within marriage,
Article 4 of the Interpretation III of the Marriage Law, clearly stipulates that the donation involved in extramarital affairs is not included. If the court decides to return half of the donated property, it will define the possibility to divide joint property without divorce. In addition, it's not precisely 50% of the joint property that shall be divided. In a divorce case, the joint property may not be divided equally due to factors, such as fault, contribution, use of the property, and the favor for women's interests. Therefore, the gift should be null and void in its entirety.
