MAINLAND MARRIAGE LAW - WINNIE CHOW

The recent interpretation of mainland marriage law by China's Supreme Court has sparked heated debate and widespread criticism.  It stipulates that a property brought into a marriage by one person will remain theirs on divorce, and the other spouse will have no rights to it.

From the perspective of a Hong Kong family lawyer, this ruling sets the clock back by decades, to a time when financial settlements often rewarded the financially stronger party, with no regard to sharing or fairness.  This runs counter to the concept of marriage as an equal partnership.

In November 2010, our Court of Final Appeal finally allowed us to embrace the principle of fairness and equality in the determination of financial claims in a divorce, displacing the earlier principle of reasonable requirements.  We are prohibited from discriminating on grounds of gender, or the roles played by the parties in a marriage, be it as breadwinner, or home-maker/child carer.

Our law specifically requires us to consider the contribution by each party - not just financial, but that to the home and the children.  The needs of all parties are the court's overriding concern. 

Making financial contribution the sole factor in determining property division is entirely inappropriate in a family setting.  This is not a commercial situation, and the facts of each case need to be carefully considered.  Divorce affects the lives of all the parties and more importantly, the children's welfare.  The matrimonial home is usually the biggest or only asset in a family.  Awarding it to one party regardless of any other assets, will inevitably jeopardise the other party, and the children. I fear this new interpretation creates more problems than it solves. 

Winnie Chow

Partner

Hamption, Winter and Glynn