The common property refers to the property acquired and owned by the wife and the husband through the duration of marriage. The duration of marriage starts from the date of marriage to the date either party dies or the date of divorce.

1. What is common property under China Marriage Law?

The common property refers to the property acquired and owned by the wife and the husband through the duration of marriage. The duration of marriage starts from the date of marriage to the date either party dies or the date of divorce. Except as otherwise agreed, all and any property acquired in the duration of marriage shall be deemed as common property. Such agreement for exception refers to agreement such as prenuptial agreement.

To identify the common property, the following shall be noted:

a) Common property only exists in the duration of marriage. There is situation where the boy and girl cohabit but don’t register marriage, or the wife or the husband cohabit with a third party in the duration of marriage. The property acquired during the period of cohabitation shall not be deemed as common property;

b) Any property acquired before marriage shall be personal property;

c) Either the wife or the husband has the equal right to deal with the common property for daily life. However, for any substantial disposal, like selling the apartment, the couple shall discuss together and make an agreement.

2. The scope of common property

The scope of common property may include:

a) Salary & bonus;

b) Proceeds from business, such as renting out the apartment, engaging in company business, investing in stocks;

c) Proceeds from intellectual property, such as copyright, trademark, patent, etc

d) Property from succession or property obtained as gift. However, if such kind of property is inherited or sent only for the husband or the wife, it shall be the husband or the wife’s personal property;

e) Any proceeds one party gains making use of his/her personal property;

f) Any house subsidy, pension or severance payment due to bankruptcy.

3. The following property shall be personal property:

a) Either party’s property before marriage;

b) Any compensation for medical expense or disability due to personal injury;

c) Any living items special for one party, such as clothing, books, etc.

4. How to divide the common property between the couple in case of divorce

Generally speaking, the wife and the husband have the equal right to the common property. In case of divorce, such common property shall be divided equally between the couple.

However, in the following situations, the court may consider and divide the common property in favor of one party:

a) If any party, after divorce, may have difficulty in managing the life, for example, having no house for living with no income, the court may divide in favor of such party;

b) If the divorce is caused due to one of the following situations, the innocent party can ask for compensation against the faulty party:

(i) double marriage;

(ii) cohabitation with a third party;

(iii) use of family violence;

(iv) abuse or abandon of family members.

c) If any party is found to transfer the common property or create debt in a bad faith to transfer the common property, the court may reduce his/her part of divided property from common property.