IS LAND GIVEN DURING MARRIAGE COMMON OR SEPARATE PROPERTY?

Question: After getting married, my biological father gave me a house and I was named on the ownership certificate. Now my husband and I are in conflict, leading to divorce. The common property has been agreed upon, but my wife wants to divide the house on the grounds that it was given to her during the marriage. How can I prove that it is separate property? Thank you.

Answer:

According to Article 33 of the 2014 Law on Marriage and Family:

“Article 33. Common property of husband and wife

 1. Common property of husband and wife includes property created by a spouse, incomes generated from labor, production and business activities, yields and profits arising from separate property and other lawful incomes in the marriage period; except the case prescribed in Clause 1, Article 40 of this Law; property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property.

The land use rights obtained by a spouse after marriage shall be common property of husband and wife, unless they are separately inherited by, or given to a spouse or are obtained through transactions made with separate property.

2. Common property of husband and wife shall be under integrated common ownership and used to meet family needs and perform common obligations of husband and wife.

3. When exists no ground to prove that a property in dispute between husband and wife is his/her separate property, such property shall be regarded as common property.”

According to Article 43 of the 2014 Law on Marriage and Family, it is stipulated that:

“1. Separate property of a spouse includes property owned by this person before marriage; property inherited by or given separately to him/her during the marriage period; property divided to him/her under Articles 38, 39 and 40 of this Law; property to meet his/her essential needs and other property under his/her ownership as prescribed by law.

2. Property created from separate property of a husband or wife is also property of his/her own. Yields and profits arising from separate property during the marriage period must comply with Clause 1, Article 33, and Clause 1, Article 40, of this Law.”

Thus, the right to use land that the husband and wife acquire during the marriage is the common property of the husband and wife, except in cases where the husband and wife inherit separately, are given separately or acquire through transactions using separate property. Therefore, in the above case, if the current house is only in your name, and at the same time it can be proven that the right to use this land was acquired during the marriage as a separate gift, your wife has no right to request a division of this house. On the contrary, if you cannot prove it, this is determined to be the common property of the couple, and the wife still has the right to request a division upon divorce.