In any given jurisdiction, the matrimonial property law, while overlapping local property law in many aspects, does have its own features and hence special rules. In some cases, it is crucial to understand the dynamics between the two types of interrelated laws.
I. The Framework of China Matrimonial Property Regime
(1) Joint Tenancy/Co-ownership
The default matrimonial property regime in China can be described as "community property regime" whereby assets acquired after marriage by one spouse is considered automatically as "community property" jointly owned by the couple, thus to a large extent, a property of joint tenancy in most common law jurisdictions despite that the title may be vested in the name of one spouse only. For example, a foreigner marrying a Chinese lady may find that he is prohibited from purchasing a home in his name due to Chinese restrictions on foreigners purchasing real properties in China, thus the title of the property can only be registered in the name of his Chinese wife, but legally speaking, the property is considered community property of the couple, and the foreign husband is automatically entitled to half of the value of the property.
As always it must be singled out that under Chinese matrimonial property regime, the gift or inheritance received by a spouse during their marriage is considered as "community property" instead of non-matrimonial separate property, a big shock to many foreign family lawyers.
(2) Equal Right in Managing Communty Property
Where a piece of asset belongs to "community property" under Chinese matrimonial property regime, it is deemed as "co-owned" by the couple in respect of the entirety of the asset, regardless of title registration; in other words, each spouse's ownership attaches to the whole property instead of half, and accordingly and also as a result of gender equality, Chinese Civil Code (inherited from prior China Marriage Law) expressly prescribes for equal right in the management of community properties, unless the law provides otherwise. Such equal management right is often understood as "mutual consents of both spouses required" in judicial practice.
（3）Division of Matrimonial Properties upon Divorce: Starting point 50:50
Under Chinese matrimonial laws, upon divorce, the courts will split the community properties of the couple unless there is a pre- or post-nuptial agreement stipulates otherwise (in short-life marriage, nuptial agreement may not prevail). Chinese courts generally presume a 50:50 division of community properties in divorce proceedings unless evidences prove the fault one the part of one spouse or otherwise as required by the law.
It is my opinion, probably shared with most foreign family lawyers, that when people talk about matrimonial property regime, the concept should emcompass the pertinent rules during the life span of the marriage but also those rules related to division or equitable distribution upon divorce. I particulary discuss this point here for the reason that in China judicial practice, as a result of ambiguous provision in China Law on Choice Laws, Chinese family lawyers and courts may narrowly interpret the concept to cover only the rules during the life of marriage, which doesn't seem correct to me.
II. The Framework of China Property Law
As in most other jurisdictions, there exists a set of rules as property law, a distinctly different but related body of rules from China matrimonial property law.
Like other civil law jurisdictions, China used to have a statute called "China Property Laws" which was merged into China Civil Code with most provisions remaining intact after migration.
Strictly speaking, to people who understand both civil law and common law systems well, the word "property" is not exactly equivalent to the idea "in rem right" which is closer to "wuquan" in Chinese Pinyin. Nonetheless, let us just use "property" here to mean "in rem right" or "real right" in the Chinese laws.
The basic rules are:
(1) for movable properties, real rights therein are created, alienated upon delivery unless otherwise provided by law; in practice, registered equity interests in a limited liability company, and vehciles are movable properties, and failure to register such movable properties properly shall result in deprivation of protection against bona fide third parties;
(2) for immovable properties, real rights therein shall only be created, alienated or terminated upon registration with real estate register; in other words, registration is critical and essential in creating or altering or transferring real rights in real properties, which is not just for purpose of filing against bona fide third parties. The same is true of co-ownership in real properties in China.
In the case of real properties, as connoted in the rules above, absent the matrimonial property rules, a real property registered in the name of a spouse is considered as his or her own property, not co-owned by the other spouse, simply because the other spouse is not registered as on the title deed.
III. Your Takeaways
Now, there is apparently a loophole for matrimonial real properties (say, real estates) whose titles are registered only in the name of one spouse: despite that the matrimonial property law recognizes the non-title holder spouse's interests in the properties, the China property law doesn't recognize such matrimonial interests.
In real estate transaction practice, in most cities in China, transfer of title of real properties doesn't require the consent of of the non title holding spouse; in other words, the spouse whose name is registered alone on the title deed of a real property can dispose of the property by himself or herself, legally.
However it shall be noted that in the course of a real estate transaction, tax authority in China often requires the registered owner to prove his or her marital status for purpose of individual income tax calculation. For foreigners, a statement of being single will generally suffice as Chinese tax authorities don't really have any effective way to verify the actual marital status of a foreign owner of Chinese real properties.
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