On the Relationship between the Newly Amended Matrimonial Union Property Regime and Compulsory Execution
Mann-Long Chang*
I. Foreword
The ROC Civil Code has adopted the union property regime as the statutory regime for husband and wife. Under the regime, it is unambiguously provided that a wife may retain her own contributed property and separate property. In practice, however, the Supreme Court precedents have ruled that the real property directly registered under the name of the wife still belongs to the husband even though the union property regime applies to them. Furthermore, the Court has declared that the property obtained during the continuance of marital relationship is still presumed to be the husband's if the wife fails to prove such property to be her separate property or contributed property even though the ownership thereof was registered under the name of the wife. Precedents of the sort have flatly overturned the doctrine of publication of rights over things by means of registration as provided for in Article 758 of the Civil Code. As a result, the properties obtained by many wives during their marriages who cannot prove them to be her original properties or separate properties will become the husbands' properties. This is extremely distressing for the wives and has caused panic among most women. In light of this, public opinions have pushed harder and harder for the amendment and equality of the matrimonial property regime in recent years. In order to reflect the popular opinions, the Legislative Yuan partially amended the Book of Family as contained in the Civil Code for the first time in 1985. On June 3 of that year, the amended law was promulgated by the President and put into effect. However, the amended articles still have many blind spots and fail to protect women's properties in every aspect. Through years, the public opinions rose once again, demanding the amendment of the law. For the second time, the Legislative Yuan passed the amended articles of the Book of Family in 1996, and the amendments were promulgated by the President and put into force on September 25 of the same year. After two revisions, the protection of women's properties have gained much ground. This Article is intended to make some analyses of such issues as the union property regime, the differences thereof before and after the amendments, the merits and demerits and the problems involving compulsory execution, which most concern the general public.
II. Analysis of the Union Property Regime Before the
Amendments (Prior Law):
(1) Under the ROC Civil Code, matrimonial property regimes are divided into the statutory regime and contractual regime. Husband and wife may, before or after marriage, adopt by contract either the community of property regime or the separation of property regime as their matrimonial property regime. Where husband and wife have not adopted any system for the holding of matrimonial property, the statutory regime shall govern. At present, knowledge of the law is not commonly known to the general public. It is not a popular scene that average men and women contract with each other for the purpose of adopting matrimonial property regime, and then complete the registration thereof pursuant to law. In particular, our people are more conservative in their characters, who are mostly unwilling to otherwise contract for matrimonial property regime. The statutory regime is applicable to most couples as a result. Therefore, the contents of the statutory regime most concern the property interest of the general public and have the greatest impact upon the same. Article 1005 of the Civil Code provides: "Where husband and wife have not adopted any system for the holding of matrimonial property, the statutory regime shall be taken as their matrimonial property regime unless otherwise provided for by this Code.” Article 1016 of the prior Civil Code provided: “All property belonging to the spouses at the time of the marriage as well as property acquired during the continuance of the marriage becomes their union property, provided that the separate property of the wife shall not be included therein pursuant to Article 1013 hereof." Article 1017 of the prior Code provided: "The part of the union property that belonged to the wife at the time of the marriage as well as that she acquires during the continuance of the marriage due to inheritance or otherwise without consideration, shall constitute her contributed property and remains in her ownership. The part of the union property that is the husband's contributed property and that does not constitute the wife's contributed property shall belong to the husband. Any fruits arising out of the wife's contributed property shall belong to the husband."
(2) (i) Judging from the aforesaid provisions of the prior Code, the following three features are characteristic of the union property regime under the prior law:
i. The separate property of the husband also fell under the category of union property;
ii. The part of the union property that was the husband's contributed property and that did not constitute the wife's contributed property should belong to the husband; if the wife wished to claim the ownership of her contributed property, she had to bear the burden of proof, and
iii. The fruits arising from the wife's contributed property still belonged to the husband.
(ii) The provisions of the prior law resulted in inconsistency of the laws in its application:
i. Although the real property belonged to the wife, the ownership of such property still remained her husband's under the law unless she was able to prove such to be her contributed property or separate property. This clearly conflicted with the provision of Article 758 of the Civil Code, which provides for the validity of ownership of real property upon its registration. In practice, the basis for the determination of the ownership was Paragraph II, Article 1017 of the Civil Code. If the wife wished to claim the ownership of the real property registered under her name, she had to bear the burden of proof; or it would be presumed to be her husband's property. In other words, the contributed property of the husband was provided for generally; whereas the wife's contributed property was specifically provided for. This gravely violated the constitutional principle of preserving the equality between men and women. ii. Since the real property registered under the name of the wife belonged to the husband, he could request the registration for the change of ownership in his name in accordance with Article 115 of the Land Registration Rules. Such registration was merely intended to make the name match the owner of the property, but was not a registration of transfer of ownership. If the wife did not consent to the registration, the husband might sue the owner of the name. If the wife, along with other heirs, applied for the registration of succession after the husband was dead, she would have to complete the registration for the change of ownership in the husband's name before proceeding with the registration of succession accordingly. Such practice not only violated the doctrine of publication of real property by means of registration, but tremendously complicated the administrative procedure.
(iii) The relationship between the union property regime before the amendments and compulsory execution:
i. Supreme Court Precedent 59-Tai-Shang-2227 said: “The house and land at issue were purchased by the Appellee and her husband during the continuance of their marriage and, therefore, were their union property. Since they were not the Appellee's contributed property, they should have belonged to the husband. Even if the Appellee and her husband had already divorced before the Appellant designated and sequestrated the property, they were simply recovering their respective property. The property that belonged to the husband before the divorce did not change hands because of the divorce. Namely, it still remained the husband's property. As such, the Appellee's excuse that the property no longer belonged to the husband due to their divorce and therefore should not be subject to the compulsory execution is not justifiable." Suffice it to say that any real property registered in the wife's name was still the husband's property under the law if not her separate property or contributed property. If the husband's creditor petitioned for compulsory execution of such property, the wife was not entitled to file a third-party objection as provided for in Article 15 of the Compulsory Execution Law. On the other hand, if the wife's creditor petitioned for compulsory execution of her property, the husband could file a third-party objection against such compulsory execution. During the days when the prior law was in effect, unless the husband and wife were joint debtors, if only one of the spouses was the debtor and the creditor petitioned to compulsorily execute the real property registered in the wife's name, she might filed a third-party objection against the compulsory execution, claiming such real property to be her separate property or contributed property, when the husband was the debtor, and the husband might file a third-party objection, claiming such property being the union property, when the wife was the debtor. Husband and wife might provide different defenses against their creditors, which indeed resulted from the bad law. The said provisions failed to guide and convince the creditors. Not only did disputes arise therefrom, but substantial damage was caused to the prestige of the law and to the creditor of either of the
spouses. The makers of the law should never have expected this. ii. Since the real property registered under the name of the wife still belonged to the husband, the petition filed by the husband's creditor for provisional attachment of such property should be granted. In addition, if the wife's mortgagee obtained the mortgage as created by the wife in reliance upon the registration of the property, the petition filed by such mortgagee for the auctioning of the property should also be granted. Since the real property belonged to the husband, other creditors of the wife were not entitled to declare their intention to participate in the distribution as to the auctioned mortgaged property in the compulsory execution proceedings.
III. Analysis of the Union Property Regime as First Amended:
(1) The scope of the union property regime after the amendment:
On June 3 1985, the first partially amended Book of Family of the Civil Code was promulgated by the President, and was put into effect on June 5of that year. The matrimonial property regime had undergone tremendous change after the amendment. Article 1016 of the amended Code provided: “All property belonging to the spouses at the time of the marriage as well as property acquired by the husband during the continuance of the marriage becomes their union property; provided that the separate property shall not be included therein.” Article 1017 thereof provided: “The part of the union property that belonged to the husband or the wife at the time of the marriage as well as that he or she acquires during the continuance of the marriage, shall constitute his or her contributed property and remains in his or her ownership. The part of the union property that cannot be proved to be either the husband's or the wife's property shall be presumed as the contributed property jointly owned by the husband and the wife.” In order to have a clearer understanding of the matrimonial property regime, the following chart may be used:
Statutory separate property (Article 1013)
Separate property
Contractual separate property (Article1014)
Husband
At the time of marriage
Contributed property
Without consideration
During marriage
With consideration
With consideration
During marriage
Contributed property
Without consideration
At the time of marriage
Wife
Contractual separate property (Article 1014)
Separate property
Statutory separate property (Article 1013)
(2) The arrangement of ownership and the rights to manage, use and benefit d as between husband and wife after the amendment:
With respect to the ownership of union property, under Article 1017 of the Civil Code, the husband and the wife would retain the ownership of their respective property, provided that their contributed property was joined to constitute the union property. With respecto the rights to manage use and benefit regarding the union property, Articles 1018 through 1020 provided for the husband to exercise such rights unless otherwise agreed upon. If the husband and the wife incurred any debts, the husband and the wife, in principle, should be liable for their respective debts.
(3) The differences from the prior law as to the union property regime after the amendment:
The amended union property regime was clearly different in may ways from that when the prior law was in force. They are explained as follows:
i. Under the new law, the scopes of contributed property belonging to the husband and the wife were consistent with each other. The spouses might retain the ownership of their respective property. The real property registered under the wife's name after the marriage belonged to the wife. As such, the Supreme Court precedents shall no longer be applicable which said that the real property registered under the wife's name should belong to the husband.
ii. The remuneration earned by the wife as a result of her labor shall be her contributed property under the new law; whereas such property was the wife's statutory separate property under the prior law.
iii. Under the new law, whether it be the spouses' statutory separate property or contractual separate property, it is not included in the union property, whereas, under the prior law, only the wife's statutory separate property was not part of the union property. In other words, the scope of union property under the new law is not exactly the same as that under the prior law.
(4) Discriminatory treatment resulting from the non-retrospection of law: The first amended articles came into force as of June 5, 1985. However, because Article 1 of the Enforcement Law for the Book of Family provides for the non-retrospection of law, the said new articles did not have any retrospective effect. As a result, problems arose as to how the new law and prior law should apply in determining the ownership of the husband's and wife's property.
i. If the marriage was concluded before June 4, 1985, the prior law shall be adopted in determining the ownership of the property obtained before that same date, and the newly amended law does not apply. In other words, the real property registered under the wife's name which is part of the union property, is still subject to the registration for the change of name and thus becomes the husband's property.
ii. The real property registered under the wife's name after June 5, 1985 is no longer subject to the registration for the change of name and thus will not become the husband's property.
iii. If the marriage is entered into after June 5, 1985, the determination of the ownership of the real property included in the matrimonial union property shall be made in accordance with the provisions contained in the amended Book of Family of the Civil Code.
IV. The Relationship between the Amended Union Property Regime
(1) As explained earlier, despite the fact that Article 1017 of the Civil Code was amended, the determination of the ownership of the matrimonial union property has varied according to different bases of time because the new law did not have retrospective force and the Enforcement Law for the Book of Family failed to set forth any period of time within which to limit the application of the prior law. This is indeed against the principle of fairness. Furthermore, at present, the real property purchased by the spouses before 1985 is not subject to the new provisions. As a result, women's rights are not thoroughly safeguarded. Interpretative Order No. 410 as issued by the Council of Grand Justices on July 19, 1996, rightfully said: “..... because the Enforcement Law for the Book of Family of Civil Code does not stipulate any special provision for the amended Article 1017 of the Civil Code with respect to the ownership of matrimonial union property, the union property which was created before the amendment but which still exists as of today is still subject to the provisions existing before the amendment. As a result, the husband goes on taking advantage of the rights, which is a failure of the constitutional principle of preserving the equality between men and women. With respect to the union property which took place before the amendment of the Book of Family of the Civil Code but still exists as of now, and which is not part of the contributed property of either the husband's or the wife's, the relevant authorities should review and modify the relevant provisions of the Enforcement Law for the Book of Family of the Civil Code as quickly as possible so as to deal with the problems and comply with the principle of equality between men and women......” In order to solve the aforesaid problems and to fix the inequality as to matrimonial property regime, the Legislative Yuan added Article 6-1 to the Enforcement Law for the Book of Family of the Civil Code on September 6, 1996. Under Article 6-1 of the Enforcement Law for the Book of Family of the Civil Code, if the marriage was entered into before June 4, 1985 and the union property regime was applicable the couple, and if real property was obtained before the said date and registered under the wife's name during the continuance of marriage, Article 1017 of the Civil Code of 1985 when the Book of Family was amended shall apply one year after the said Enforcement Law was amended on September 6, 1996, if one of the following situations occurs:
i. The real property was registered under the wife's name during the continuance of the marriage; or
ii. The real property remains registered under the wife's name after the couple’s divorce.
(2) It is clearly set forth in the said article that the husband and the wife might redetermine the ownership of their property within the one-year buffer period upon the implementation of the new law, if the real property registered under the wife's name had been acquired before June 4, 1985 during the continuance of the marriage and the marriage still exists as of today and the said real property remains registered under her name, or if the husband and wife have divorced but the said real property remains registered under the wife's name. One year after the implementation of the new law, it would apply under all circumstances so as to coordinate with the real property registration system and to preserve the wife's rights and interests. In other words, as of September 5, 1997, for those couples to whom the union property regime is applicable, the real property shall belong to the spouse under whose name the said property is registered. The real property to be sequestrated and auctioned by the creditors shall be decided based on the name of the debtor as registered. If the husband's creditor wishes to sequestrate the wife's real property, the court shall order the creditor to further conduct investigations and report the results to the court in accordance with Article 17 of the Compulsory Execution Law. If the situation is discovered after the commencement of the compulsory execution, the court shall reverse its disposition regarding the said execution. Otherwise, the wife may file a third-party objection against the said execution in pursuant to Article 15 of the Compulsory Execution Law. On the other hand, if the wife's creditor attempts to sequestrate the husband's real property, the same rules shall apply.
V. Conclusions:
In the beginning, the ROC matrimonial property regime was indeed designed under the strong influence of male chauvinism. Therefore, women have bent down on their knees and suffered the consequences over and over again. Through decades of evolutionary change of the bigger picture as well as women's vigorous struggle, the idea of equality between men and women has gained its ground step by step. After twice amending the Book of Family of the Civil Code, the Legislative Yuan not only has reflected the latest opinions of the people in a tangible way, but allowed women to walk out of the haze of male dominance. Under the newly amended matrimonial union property regime, women are no longer the weaker sex. Under the existing union property regime, however, union property in principle is still managed by the husband pursuant to Article 1018 of the Code. Besides, the husband who is entitled to manage his wife's contributed property may dispose of such property without her consent if such disposition is necessary in the course of management (Article 1020 thereof). In addition, the husband who is entitled to manage also has the right to use, and to collect fruits from the contributed property of the wife, and to give the remainder of such collected fruits, if any, to her after effecting payment for living expenses of the family and cost for the management of the union property out of such fruits. These provisions, undoubtedly, have removed the rights of the wives as to their contributed property in an artful manner. In essence, the constitutional intentions to preserve the equality of men and women and the wives' property rights have been flagrantly defeated. Evidently, the union property regime still has much to be desired. It has been widely discussed whether or not the regime is suitable as the statutory property regime. It is my humble opinion that the relevant laws ought to be given a full-scale review during their next amendment so as to make the matrimonial property regime carry through sexual equality while conforming to the trends of the time. If so, the fight between men and women regarding property rights shall finally come to an end.
* Attorney-at-Law. Published in Chinese by Taiwan Land Association Journal and Zhong Wang Law Review on June 20, 1999.1 Supreme Court Precedent 63-Tai-Shang-522.
2 Resolution of the Tenth Civil Court Meeting of the Supreme Court, as held in 1985.
3 Supreme Court Precedent 79-Tai-Shang-2681.
4 Resolution of the Sixth Civil Court Meeting of the Supreme Court, as held in 1977.
5 Supreme Court Precedent 63-Tai-Shang-522. (The author is a practicing attorney, and Legal Counsel to Provincial Land Association.)