Key takeaways:
- The husband and wife may negotiate to determine the property division plan.
- If there is no property division agreement, the personal property (non-marital property) remains the property of that spouse alone and the marital property (community property) may be split 50/50 between the couple.
- Under special circumstances, one party may be granted more than half of the marital property.
- The man is not required to pay alimony to his ex-wife after the divorce, but the party without child custody right is required to pay child maintenance allowance to the other party.
1.The couple negotiate to determine the property division plan.
The couple can sign an agreement to determine the property division.
In China, there are two kinds of such agreements:
(1) Agreement on the property classification
Such agreement refers to the one where the parties jointly agree upon which property is personal property (non-marital property) of each party and which is marital property (community property).
The agreement is not conditional on divorce. It may be concluded when divorce has not yet occurred. For example, it can be concluded before or during the marriage.
In the event of divorce, both parties only need to divide the marital property listed in the agreement. Personal property will not be distributed and each spouse still keeps his/her personal property.
Once such an agreement takes into effect, neither party may repudiate it.
(2) Divorce property settlement agreement
Such agreement refers to the one where the parties agree upon how to divide the property in the event of divorce.
Such agreement is conditional on divorce. It does not become effective and enforceable until the divorce becomes effective.
Therefore, either party may repudiate the agreement before the divorce takes effect. The court will then decide that the agreement is not valid.
2. The marital property and debt is split 50/50 between the spouses.
Among the property of the husband and wife:
(1) the personal property of the spouse shall remain in his/her own property after divorce;
(2) the marital property and debts of husband and wife shall be jointly owned by both parties before divorce, and shall be divided 50/50 each after divorce.
3. Under special circumstances, the spouse may receive slightly over 50% of the marital property.
If either party satisfies any of the following conditions, he/she may be granted slightly more marital property than the other party:
(1) during the marriage, he/she bears more burden of raising children, taking care of the elderly, and assisting the other party in work;
(2) during the marriage, the other party has faults, such as bigamy, infidelity, and domestic violence;
(3) during the marriage, the other party conceals, transfers, sells off, destroys, and squanders the couple’s marital property; or
(4) the party is responsible for bringing up the children after marriage;
Sometimes the wife may be granted more property, but not always.
In such cases, the court shall determine how much property the party may be granted.
4. Child maintenance allowance but not alimony for wife is required in China.
After divorce, if one party directly raises up the children, the other party shall bear part or all of the child maintenance allowance.
The amount and payment period of the child maintenance allowance shall be agreed upon by both parties. If they fail to reach an agreement, it shall be determined by the court.
However, the man is not required to pay alimony to his ex-wife who does not remarry after the divorce, as it is not stipulated under Chinese laws.
The Cross-border Family Matters 101 Series (‘CFM 101 Series’) provides an introduction to China-related cross-border family matters (marriage and succession), and covers the knowledge essential to cross-border family matter management.
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Photo by Qiyan Zhang on Unsplash
Contributors: Meng Yu 余萌
