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Concept of equality not only means treating everyone by the same manner. The same treatment to persons in different positions can do nothing but cause unjust existed timeless. Endeavors should be made to resolve and modify this inequality to bring forward genuine equality. Just this extended idea of equality has turned into guideline and final goal in struggle of striving for recognition and acceptation of female’s human rights.
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Property right of female is an important component of female’s human rights, also is the base of exercising of other rights of female. Inequality of property right locates female on a lower economic status generally in marriage and family relationship and communities and plays as an important causation for family violence. International laws of human rights, especially “ Convention on the Elimination of All Forms of
Discrimination against Women”, become powerful tools for examination of current provisions of domestic laws and for challenging in inequality property right status woman faced by formulating criterions and protection mechanism recognized by international community.
Equal division of Property in the joint possession of husband and wife provided in
Chinese marriage law fails to fully consider inferior financial position of woman faced during economy transformation period and special difficulties divorced woman encountered in traditional culture and customs. Meanwhile, adequate evaluation and recognition have not been given to functions of woman‘s housework, which contributes to development of family, development of the spouse and causes restriction on self-development. Therefore, we should re-examine and re-consider
China’s property division means in case of divorce under the framework of international human rights.
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Financial Status of Woman and Poverty Situation of Divorced Woman
Along with increase of divorce rate on years in China, numbers of divorced woman are rising. Though society gradually regard divorces as a normal family structure or life style and no more discriminate divorced woman, we should never neglect problems and living predicaments these woman faced.
1 Professor of China University of Political Science and Laws.
2 The third paragraph of “discrimination problem on female: convention and committee”,edited by human right office of U.N.,2001 edition.
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Compared with male’s special right to divorce symbolized by “compelled divorce” in
Chinese feudal society, by eras of efforts, modern female have broken through obstacles of traditional mind eventually and have enjoying equal right of divorce same as that of male not only in law but in social opinion and morality evaluation. No matter in international or domestic, statistics show woman accounts for 70% in divorce cases as plaintiff and have signified independent right woman enjoyed in divorce issues. But equal right to divorce of woman as man can not conceal embarrassment and predicament they faced after divorce. A survey report named
“concern for female with single parent” in recent released upper of an iceberg of living predicament of divorced woman. Using layered and multi-phase probability sample measures, a household survey carried out in 440 families with single parent and 500 families with parents in 50 resident communities in Shanghai revealed: average yearly income of female with one parent constitutes 79% of that of male, including income of divorced woman accounts for 81% of that of the counterpart. For a divorced mother with a child or children, even if alimony of the child or children has been paid by the father, the family yearly per capita income accounts for 55% of that of family with parents. 44% of divorced woman expressed their material living standard has somewhat fallen or dropped significantly. This result stands for same results of similar surveys by foreign scholars. Weizmann, an American scholar, investigated and found out: standard of living of male raised 42% during a year after divorce, while female dropped 73%. She believes that it is a wrong conclusion judge made based on the principle of equality of man and woman that woman will be able acquire income equalized to her ex-husband after divorce, which results in depriving financial interest of divorced woman in marriage, especially old age housewives and woman with little child or children.
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A survey carried out on local urban residents between 18-69 in 31 provincial capitals, autonomous region capitals and municipalities directly under central government by
Beijing Meilande Information Company showed that certain gaps existed between male and female in power ,wealth and opportunity, and female still stands inferior position to male in occupation, social class, income and education level. Numbers of
Woman engaged in semi-technical occupation, service industry and woman laid off, unemployed and awaited job assignment are obviously larger than that of man, while numbers of woman with monthly income over 5001 RMB only accounts for 14.1%, significantly less than that of man. Proportion of woman received university education or above was 5.5% less than that of man.
4 Major information in report of the second social status survey of Chinese female in 2001 indicated that: yearly per capita income of female employees in urban area is only 70.1% of that of male. Among
3 See also “ concern on female with single parent” on “China Female Newspaper” on Apr.29,2003.
4 See also “modern marriage and family system in U.S.A.”, Xia Yinlan, China University of Political Science and
Laws Press, 1999edition, page 148 th.
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high-income group, female constitutes 33.5%, while male 66.5%. In lowest-income group, this trend reverses. At the same time, though both average income of male and female increases along with education level, for group of the same education level
(e.g. high school or university), average income of female is significantly lower than that of male without exception. The survey also discovered income gap between male and female employed in past ten years has been increasing with the introduction of marketing mechanism. Impact of housework on income is negative. Affected by traditional mode of social division on labor, female employees spend nearly twice times in housework than male (female spend 173.69minutes/day, male is
74.68minutes/day). The impact of housework on female employees is an interactive process. Spending longer time on housework may affect quality and quantity of their labor input, while underestimation of female working may bring negative influence on female workers and may cause them use much more time for housework. As a result, working capability of female may drop with income decreasing.
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This general situation of inferior financial status of woman to man may not be changed fundamentally after divorce, so, poverty of divorced women is determined by the general situation. Without special legal protection after divorce, living standard of most female have to drop significantly compared to that during marriage.
At the same time, children, especially little children, usually live with their mothers after divorce. Therefore, majority of divorced mothers would have to shoulder both family and work, i.e. she shall not only do well as a mother and look after children and support the whole family, but also do well in job, even have to do part-time job to improve children’s living standard. Many of them are hard up in economy as well as overloaded in physical strength and energy. Furthermore, middle-aged divorced women do not have adequate education background and economic resources, they even will face re-marriage problem.
Thus, at the time of assuring freedom of divorce, only legal remedy measures and protection mechanism be established for the disadvantaged party of the marriage and party fostering children (mainly are female), should fairness and equality of law be achieved, and value and spirit of human right protection for assisting the disadvantaged party be reflected, and freedom of divorce to true meaning of emancipating of human nature be actually achieved.
2. Equal Division of the Property in the Joint Possession of Husband and Wife can not Realize Fair Result
Under Chinese marriage law, the disposition of the property in the joint possession of
5 See also “survey on condition of sexual equality” on “China Female Newspaper” on Mar.31,2003.
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husband and wife shall be based on the principle of equal division, caring for the rights and interests of the wife and the child or children, the principle of equality between man and woman and principle of protecting legal rights and interests of female and child. But it is undeniable that this provision is too abstract without sufficient consideration for interests of the disadvantaged party in marriage relationship. Therefore, the result of specific implementation of this superficial fair principle often caused unfair feeling to parties and breach theory of justice.
In relation to the meaning of justice, Pro. Rawls, a famous philosophy, defined in
“Theory of Justice” as: a justice society, should comply with two principles: one is principle of freedom, another is principle of disparity. Justice of society should be distributed as this: under the premise of everyone enjoys rights of equality and freedom, the advantaged group are obliged to make compensation to the disadvantaged group to enable them to have equal opportunity to participate into social competition.
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Protection of the disadvantaged group is an important value theory all the time. So, the interests of disadvantaged party in marriage and family shall be protected in order to guarantee social value of marriage and social function of family, in which justice of marriage laws lay. Justice of legal provisions concerning divorce means under premise of protection of freedom of divorce, the interests of husband and wife shall be balanced through remedies and compensations made to the disadvantaged party.
Development of system of property division reflects constant improvement of woman’ social status and gradual achievement of social justice worldwide. From “property merger system” of wife’s penniless to “unified property system” of wife carrying back parts of dowry after divorce, and to “separate property system” and “share increased value of property” in case of divorce, many countries have accepted theory that marriage is partnership, valuing housework same as professional work. No matter if both parties are employed or have financial income, their contributions to family are regarded as same. Therefore, even if separate property division system was adopted during period of marriage, one party still is entitled to share the other’s property based on the equal division of property.
System of equal division of property emphasizes on particular situations and actual requirements of parties instead of considering property status and their sources during marriage in order to reach and achieve justice of result. Thus, the disadvantaged party may not only enjoy half of common property or share the increment of another’s property but may enjoy more than half, even the full. By doing this can we comply with theory of justice and equality. American scholars believe that many women shall enjoy more property than that obtained through traditional means of equal division of
6 See also “income disparity of male and female on China urban areas and analysis on reason” on “social status of
China’s female during century transformation”, Jiang Yongping, Modern China Press, 2003 Edition, Page 42 nd -57 th
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property to achieve result of financial equality of divorced parties. Traditional means of property division defines marriage property based on traditionally reasonable and narrow methods, and strict equality concept was applied for property division. In this regard, victory of principle of equality of man and woman before the law is at the cost of fairness and justice. 7 Application of principle of equal division of common property implies theory of protecting interests of the party mainly devoted to housework and without work, but this only recognizes value of housework to certain degree and repays efforts made for housework. True evaluation and compensation have not been made on value of housework , devaluation of manpower capital resulted from the housework and expected interests of the party who both takes a job and housework. Therefore, this so called equality conceals actual inequality by surface equality.
In China, financial status of female still lags behind of that of male. In majority divorce cases, a child or children usually live with their mothers after divorce. Under this situation, adoption of the principle of equal division of common property would result in real inequality, which is an important and direct factor causing poverty of divorced female. Thereby, we shall adopt a principle for fair division of common property instead of the principle of equal division of common property, i.e., in case of divorce, we may equally divide the common property, or we may also divide the common property according to the actual situations of husband and wife, say, may divide more than half or even all property to the disadvantaged party, in order to realize equality and justice.
In order to assure adequate exercise of discretionary power by judges and protect interests of the disadvantaged party, legal provisions shall be worked out as concrete as possible, i.e. to work out quantitative criterion for application of the principle of fair division of common property. Based on the experiences of foreign countries, the application of the fair division of the common property shall take into account following factors: (1) ability and business opportunities of husband and wife ;(2) education level and financial conditions of husband and wife;(3) physical conditions and age of husband and wife;(4) quality and quantity of individual property;(5) duration of marriage and contribution to family respectively. Some countries also consider fault of one party and damage to another party caused by that fault.
3.Fully evaluate impact of housework on manpower capital and expected interests of husband and wife
Clause 16 of
“
Convention on the Elimination of All Forms of Discrimination against
Women”provides that: signatory states shall adopt every certain measures to eliminate
7 see also “the theory of justice” John Rawls , translated by He Huaihong, China Social Science Press, 2003
Edition, page 3 rd -62 nd.
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discrimination on female in every affairs concerned with marriage and family relationship, especially to guarantee female , on the base of sexual equality: ……
（ h
） both parties shall enjoy the same rights on possession, acquisition, operation, administration, enjoyment and disposition of property, no matter it is free or valued.
Housework is free work, but it lays important means to development of family and society. Therefore, the convention provides equal right on marriage property to those engaging in free work and those engaging in valuable work.
However, our research found that adequate attention has not been paid to evaluation of manpower capital and division of expected interests of husband and wife during marriage both in legislation and judicial practices. The so called manpower capital refers to ability that can produce financial benefit, such as employment opportunity, working skills. It is an intangible property.
Marriage relationship is partner relationship, marriage treats living together permanently as goal, either party in marriage is convinced that development of another party in marriage is development of whole family, and the party itself may enjoy achievement acquired by development. One party sacrifices opportunity of improving man power capital of his/her own or give financial and life support to improve human power capital of another party, for he(she) in confident he can enjoy benefit brought forward by improved man power capital of another party in marriage.
Though during this intimate relation in marriage, altruism may play certain function, but expected interests in current and in future still play as a strong impetus on impelling couple’s decision on this scarifications.
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If this couple have reasons to believe that they will get repay in future, then they may make decision for this scarifications. On the contrary, if devaluation of man power capital of one party caused by scarification and increase of human power capital of another party on the base of scarification of one party can not be recognized and distributed reasonably while divorce, neither party of couples may make scarification to family, or even unwilling to marry. Therefore , neglect of expected interests produced by man power capital in laws neither comply with justice theory of divorce nor benefitial for promoting development of family and marriage relationship.
Theoretically speaking, maybe husbands pay more for family than wives or vise versa.
In fact, though Women’s Liberation Movement has developed for many years, but in almost all countries it is still wives who give up career development but to bear the responsibility to raise children, do housework in the family. The wives take a special way to make investment in their husbands’ success and social class.
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According to
8 “divorce in American and it’s economic aftermath” committee information of female right and interest protection.
9 The ALI Principles and Marital Quality ， Allen M. Parkman ， Duke Journal of Gender Law & Policy ， Spring /
Summer, 2001
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the statistics of the 2nd sample survey Report on Chinese Women’s Social Status, over 85% of wives take the responsibility to do housework such as cooking, dishes-washing, laundry, and cleaning up, with average time input 4.01 hours per day.
Obviously, considerable success and social class the husbands gained partly lie in their wives’ contribution and efforts. On the other hand, wives give up the opportunities of self development , which hinders normal increasing of their own man power capital while they are paying for their husbands’ achievement. If the marriage keeps going on, wives can get repay in sharing husbands’ success, in soulful comfort from husbands and children and in owning a steady marriage and family. But all the repay will be clear away by divorce. No doubt, it is unfair for the wives.
In some countries, contribution to housework is considered as a factor in property partition, i. e. the party who has lower income , take care of children and do housework in the family is entitled to getting more property in case of divorce.
Chinese Marriage Law also states that the disposition of the property jointly possessed by the husband and wife shall consider the principle of caring a child or children and protection of interest of the wife, but fails to provide specific provisions. The Law is trying to solve the financial problems that the divorced women face by providing financial support. If one party is in financial difficulty at the time of divorce and can not sustain local basic living standards, adequate financial support shall be provided by the other party if he or she can afford. Other countries also have similar provisions in order to protect interests of the disadvantaged party. However, this system actually implies unfairness to the disadvantaged party. Firstly, if success gained by one party
(usually the husband) at the cost of the other party’s contribution (usually the wife) has already changed into material wealth, the other party might get a sum of money at the time of divorce. It looks like a positive result. Yet, this turns the action of taking back her/his own property into sympathy and charity from the other party, furthermore, the sum of money obtained can not reflect true equality. The writer has made a survey on 1032 divorce cases during May 2001 to December 2002 that were handed in an intermediate court in Beijing city , only 63 judgments include of financial compensation, including 9 cases through providing housing accounting for
14.2%, and the remaining cases through money support. Furthermore, the amount of money support is quite lower compared to the amount in the complaint. Most of the compensation is below RMB20, 000, including 15.8% of them are below RMB3000,
32% of them are between RMB3000 to RMB10000, 19% of them are between
RMB10000 to RMB20000 while 19.1% of them are above RMB20, 000. This shows that at the time of divorce, on one hand, housing was not adequately provided to the party who has not a house, on the other hand, amount of money support is quite lower, which can not reflect fairness and equality.
Secondly, the unfairness is compounded in cases of the success obtained by one party at the cost of the other party has not been changed into tangible property. For example,
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the wife takes responsibility to do all or part of housework to support her husband to receive further education or training and the husband takes divorce after obtaining
Degree or career qualification. Based on the traditional identification of the marriage property, man power capital that would produce high income in future obtained by husband has not been turned into tangible property and cannot be divided as marriage property. Meanwhile, the party who made sacrifice supports education and training of the other party by using the common property obtained through her own work, which makes the common property much smaller at the time of divorce. For the divorce under this situation, fairness and equality can not be reflected even all the common property was ordered in the possession of the party who made sacrifice to the family.
Thus, we can see that denial of man power capital, a kind of intangible property, means denial of contribution and sacrifice of wives made, which makes divorce a kind of exploitation and robbery of the divorced women. It goes against the principle of the
Marriage Law that is aimed at realization of equality of man and woman and protection of the interest of the disadvantaged party. Therefore, It is critical to define the marriage property. Indeed, in a society in which knowledge economy and intangible assets are becoming most important property, it is wrong to limit division of marriage property with tangible property.
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If we defined man power capital as a kind of property, we may regard the effect of marriage on man power capital of husband and wife as a debt that is base on the sacrifice and consumable of the marriage. The existing of the sacrifice and consumable during marriage is the basis of the expected interests, while it will turn into the debt in case of divorce and division of common property, which will produce obligation of one party shall make payment to the other party. That is to say, the expected interests resulted from a change of man power capital at the cost of sacrifice and contribution to family shall be regarded as a kind of marriage property. The potential profit lies in payment should be divided fairly as a kind of marriage property. Firstly, the effect of housework on man power capital and expected interests of husband and wife should be adequately assessed.
Then when dividing the expected interests resulted from the increased man power capital of one party, the other party with decreased man power capital shall be adequately compensated. Only by this, can the division methods of marriage property realize substantial equality and truly protect property rights of female and achieve the objectives of fairness and equality in law.
10 “old look on marriage”, discussion on amendment of marriage acts”, Li yinhe, Ma Yinan, Guangming
Newspaper press, 1999 edition, page 44 t
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