Recognition of Ownership of Maritally Gifted Real Estate upon Divorce

Abstract.Article 5 of the Interpretation on the Marriage and Family Chapter of the Civil Code addresses the issue of determining ownership of real estate gifted between spouses upon divorce, breaking through the traditional adjudicatory approach that treated such acts as ordinary gifts and emphasizing the need for comprehensive discretion in light of the special nature of marriage and family. Previously, under the rules of the Contract Chapter of the Civil Code, the donor could exercise the right of arbitrary revocation before the property rights were transferred. However, the new provision requires courts, in divorce disputes, to comprehensively consider factors such as the duration of the marriage, the party at fault, and the economic circumstances of the parties, to adjudicate the ownership of the real estate and determine a compensation plan. Only when the donee has committed fraud, coercion, or circumstances warranting statutory revocation will a request for return be supported. Academic opinion on this issue is divided: the ordinary gift theory holds that the rules of the Contract Chapter apply, permitting revocation; the marital property regime contract theory argues that the special nature of the personal relationship should exclude the right of arbitrary revocation, directly producing real rights effect; the special gift conditioned on marriage theory holds that it is fundamentally different from a marital property regime contract—marital gifts remain gifts but are based on marriage and cohabitation, possessing characteristics of long-term cooperation, reciprocity, and sharing. Article 5 of the Interpretation (II) on the Marriage and Family Chapter of the Civil Code, through refined differentiation between identity law and property law rules, balances "gratuitousness" with marital ethics, avoids imbalance of interests, and responds to the adjudicatory conflicts in judicial practice caused by divergent determinations of legal nature. It both safeguards the interests of the marital community and protects individual property rights, providing more adaptive institutional safeguards for building harmonious family relationships.