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  • Publication Data:2008-03-17

What is the difference between the new statutory system of separate property for spouse (the new system) and the old system of joint property (old system)?

Ans.:
1. Categorization:
New system: The property is categorized into pre-marital property and post-marital property.
Old system: The property is categorized into original property, special property, and joint property.
2. Ownership:
New system: Separately owned
Old system: Respectively owned
3. Management right:
New system: Separately managed
Old system: Jointly managed. In principle, it is managed by the husband but it may also be managed by the wife upon agreement. Special property shall be managed separately.
4. Burden of management expense:
New system: Burdened separately
Old system: For joint property, the expense shall be borne by the side with the right to manage it. For special property, it shall be borne separately.
5. Use and profit:
New system: to use and enjoy the profit separately.
Old system: The side that has the management right shall have the right to use the original property and enjoy its profit.
6. Disposal right
New system: Separately disposing their property
Old system: The side that has the right to dispose the original property can do so only under agreement from the other side. But the side having the management right can unilaterally dispose the property if the disposal is required in management.
7. Settlement of debts
New system: Both sides are responsible for settling debts.
Old system: Attribution of responsibility is based on the category of property, more complicated in nature.
8. Security measures:
New system: One party of the marital relations may ask the court for interdictum fraudatorium against the allocation of the other party’s surplus property.
Old system: none
9. Right to claim surplus property
New system:
a. When the statutory relations of property relations extinguishes, the post-marital property of the wife or husband, after deducting the debt, shall be divided equally.
b. Property not included in the allocation: The property or cash inherited or obtained gratuitously.
c. In the five years before the extinction of statutory property relations, the amount of property maliciously disposed of by a husband or wife shall be added to the calculation.
d. A husband or wife that deserves the allocation may demand a specific third party to return the insufficient portion.
Old system:
a. When the relations of joint property extinguishes, the original property obtained during the marriage shall be divided equally after deducting the debts.
b. Property not included in the allocation: Property inherited or obtained gratuitously
10. Burden of family expenses
New system: Unless otherwise provided for in the law or agreement, family expenses should be divided between husband and wife according to economic ability, housekeeping labor or other factors.
Old system: When the husband cannot afford to pay, the wife shall be responsible with her whole property.
11. Funds for free proposal:
New system: Besides the living expenses of the family, the husband and wife may decide through agreement to set aside a certain amount for free disposal by the husband or the wife.
Old system: None

  • Last updated:2008-03-17
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