作者：颜雪明     2016-12-28

最近出台的《婚姻法解释（三）》第七条一款规定，“婚后由一方父母出资为子女购买的不动产，产权登记在出资人子女名下的，可按照婚姻法第十八条第（三）项的规定，视为只对自己子女一方的赠与，该不动产应认定为夫妻一方的个人财产。” 这在社会上引起了轩然大波，个人认为大有商榷之余地。

首先，“视为赠与”是指房屋的赠与还是金钱的赠与？这是两件完全不同的事情。父母把自己的房子过户给子女，是房屋的赠与；父母出资给子女买房，是金钱的赠与。按法条的描述“一方父母出资为子女购买的不动产，产权登记在出资人子女名下的”，显然不是房屋的赠与，而是金钱的赠与。子女用父母赠与的钱买房，产权就天然属于该子女了吗？钱的来源难道能决定所有权的归属吗？按照婚姻法的规定，婚姻关系存续期间，购买的不动产如无特别约定，就是夫妻共有财产，钱从哪里来并不重要。《婚（三）》7－1把资金来源作为界定产权的要件，十分不妥。不仅混淆了价款与所有权的不同法律关系，而且从实际效果看，很可能制造出新的混乱。比如，婚后一方买房，谎称是父母给的钱，登记在自己的名下，就可以堂而皇之地把共有财产变成自己的，这对不掌握家庭财产的一方，极为不利。

其次，登记行为能不能视为夫妻双方对房屋产权的约定？《婚（三）》7－1对此持肯定的态度，才有“登记在出资人子女名下的，应认定为夫妻一方的个人财产”这样的规定。这个逻辑能否成立，是问题的关键。按婚姻法第十八条第（三）项规定，婚后受赠的财产只有在“赠与合同中确定只归夫或妻一方的财产”时，才是个人财产，也就是说，要求赠与人必须明示，没有明示的，只能视为共有财产。《婚（三）》7－1回避了这个关键，以登记代替明示，这有移花接木之嫌。

不动产登记是物权公示行为，但这是对外部而言，在夫妻内部，不能视为夫妻双方对产权的约定。现实生活中，夫妻买房，只写一人名字的非常普遍，表面上的原因，是写两人名字太麻烦，签合同、办过户时，两人必须亲自到场签名，将来办理抵押、转让也同样需要双方都到场；而最根本的原因还在于，依照婚姻法，婚后买房，不管钱是哪里来的，写谁的名字，买的房都是夫妻共有，所以并不计较写谁的名字。《婚（三）》出台前，天下人都知道，婚内买房是共有财产，所以，房产证上无名，不意味着这套房子与我无关。现在突然说是对方的个人财产，实际上改变了现有的财产秩序，破坏了人们基于婚姻法而产生的对法律行为后果的预期。这样的规定，应当算是对婚姻法的重大修改。民间称之为“新婚姻法”，并非毫无理由。

《婚（三）》7－1究竟想保护什么？有关负责人解释说，不如此，就违背了出资父母的初衷。这个理由相当牵强。法律上只看真实意思表示，不论“初衷”。父母把钱给了儿女，真实意思即已表示，之后他不孝顺，难道父母能以违反“初衷”索回房屋或者房款？另外，以登记来推断真实意思表示，也很不靠谱，假如是男方的父母出钱，因儿子在国外，就把房子登记在儿媳名下，是否可以认为男方父母的“初衷”就是把房子给儿媳一人呢？

本来，依照婚姻法的原则，婚后取得的财产，没有特别约定的，都作为夫妻共有财产，这样有利于保护家庭中不掌管财产的一方，有利于维护善良风俗。2004年出台的《婚姻法解释（二）》第二十二条二款就是这样规定的：“当事人结婚后，父母为双方购置房屋出资的，该出资应当认定为对夫妻双方的赠与，但父母明确表示赠与一方的除外。”这与婚姻法的原则是一致的。才过了7年，为什么要改变？大概是这几年来，社会不同阶层的财产状况差距日益增大，原有的规定，不利于保护财产状况优势的一方，不利家庭背景优势的一方，说白了，就是不利于富二代、官二代。新的规定向谁倾斜，代表谁的利益，值得深思。

经济地位优越的一方要隄防借婚骗财，无可厚非，但只要明确约定，即可得到法律保护。而婚前假装大方，不分你我，等到感情破裂，才凶相毕露，是不是以财骗婚呢？如果法律支持这种搞法，经济弱势一方只剩下欲哭无泪。这恐怕更不符合公平正义。

Author: Yan Xueming December 28, 2016

Article 7 (1) of the recently issued Interpretation of the Marriage Law stipulates that "real estate purchased by one parent for their children after marriage, with the property rights registered in the name of the child of the investor, can be regarded as a gift only to one of their own children in accordance with Article 18 (3) of the Marriage Law, and the real estate should be recognized as the personal property of one spouse." This has caused a great uproar in society, I personally believe there is ample room for discussion.

Firstly, does' deemed gift 'refer to a gift of a house or a gift of money? These are two completely different things. Parents who transfer their house to their children are a gift of the house; Parents' contribution to buying a house for their children is a gift of money. According to the description of the law, "the real estate purchased by one parent for their child, with the property rights registered in the name of the investor's child," is clearly not a gift of a house, but a gift of money. Does the property naturally belong to a child who uses the money donated by their parents to buy a house? Can the source of money determine the ownership? According to the provisions of the Marriage Law, during the existence of a marriage relationship, if there is no special agreement on the purchase of immovable property, it is the joint property of the couple, and it is not important where the money comes from. It is very inappropriate to use the source of funds as a requirement for defining property rights in Marriage (III) 7-1. Not only does it confuse the different legal relationships between price and ownership, but from a practical perspective, it is likely to create new confusion. For example, if one party buys a house after marriage and falsely claims that the money was given by their parents and is registered in their own name, they can openly turn their shared property into their own, which is extremely detrimental to the party who does not control the family's property.

Secondly, can the registration act be regarded as an agreement between the husband and wife regarding the property rights of the house? Only when 7-1 of Marriage (III) holds a positive attitude towards this can there be a provision that "if registered in the name of the investor's child, it should be recognized as the personal property of one spouse". The key to the question is whether this logic can hold true. According to Article 18 (3) of the Marriage Law, the property donated after marriage is only personal property when it is determined in the gift contract that only belongs to the husband or wife. This means that the donor must clearly indicate it, and if there is no such indication, it can only be considered as joint property. Marriage (III) 7-1 avoids this key point and replaces express expression with registration, which is suspected of grafting flowers and trees.

Real estate registration is a public disclosure of property rights, but it cannot be regarded as an agreement between the couple regarding property rights externally or internally. In real life, it is very common for couples to only write one person's name when buying a house. On the surface, the reason is that writing two people's names is too complicated. When signing a contract or handling a transfer, the two people must personally sign in person, and in the future, both parties need to be present when handling mortgages and transfers; The most fundamental reason is that according to the Marriage Law, when buying a house after marriage, no matter where the money comes from or whose name is written, the house purchased is jointly owned by the couple, so it does not matter whose name is written. Before the introduction of "Marriage (III)", everyone knew that buying a house during marriage was a shared property. Therefore, the lack of a name on the property certificate does not mean that this house has nothing to do with me. Now suddenly saying that it is the other party's personal property actually changes the existing property order and undermines people's expectations of the consequences of legal actions based on marriage law. This provision should be considered a significant revision of the Marriage Law. It is not without reason that people call it the "New Marriage Law".

What exactly does Marriage (III) 7-1 want to protect? The person in charge explained that not doing so would violate the original intention of the contributing parents. This reason is quite farfetched. Legally, only the true expression of intention is considered, regardless of the "original intention". If parents give money to their children, the true meaning is already expressed. However, if they are not filial, can they claim back the house or the payment for the house in violation of their "original intention"? In addition, it is also unreliable to infer the true meaning through registration. If the parents of the man paid for the house and registered it in the name of their daughter-in-law because their son was abroad, can it be considered that the "original intention" of the parents of the man was to give the house to their daughter-in-law alone?

Originally, according to the principles of the Marriage Law, property acquired after marriage, if not specifically agreed upon, is considered as joint property of the couple. This is beneficial for protecting the non controlling party in the family and maintaining good customs. Article 22 (2) of the Interpretation of the Marriage Law (2), issued in 2004, stipulates that "if a party's parents contribute to the purchase of a house for both parties after marriage, the contribution shall be recognized as a gift to both parties, except for those whose parents clearly indicate the gift to one party." This is consistent with the principles of the Marriage Law. Why change after only 7 years? In recent years, the gap in property status among different social classes has been increasing. The existing regulations are not conducive to protecting the advantageous side of property status and the advantageous side of family background. Simply put, they are not conducive to the wealthy and official generations. It is worth pondering who the new regulations lean towards and whose interests they represent.

It is understandable that a party with a superior economic status should guard against borrowing marriage to cheat money, but as long as it is clearly agreed, it can receive legal protection. Pretending to be generous before marriage, regardless of you and me, and waiting until the relationship breaks down before revealing it, is it cheating marriage with money? If the law supports this practice, the economically disadvantaged party will only have the desire to cry without tears. This may not be in line with fairness and justice.