Policy background: Housing reform is a product of China's urban housing system reform. It is a transitional policy for urban housing to transform from previous unit allocation to a market economy. It refers to the purchase of existing public housing by urban residents at cost price or standard price in accordance with relevant national policies on urban housing system reform.

In actual life, there are two main types of housing reform houses purchased by urban residents: one is houses that have been purchased according to the housing reform policy and have already obtained ownership; The second is to purchase houses that have not yet obtained ownership or only enjoy partial ownership according to the housing reform policy. Regarding the handling of houses that have not yet obtained ownership or only enjoy partial ownership, Article 5 (2) of the "Guidelines for the Trial of Marriage and Family Cases by the Jiangsu Provincial High People's Court" clearly states that the people's court cannot make a judgment on the ownership and division of the house during divorce proceedings. Only after both parties have obtained full ownership of the house, can they file a lawsuit with the people's court regarding the ownership and division of the house. If the two parties cannot reach an agreement on the residence, use, and future acquisition and ownership of the house through negotiation, the people's court can only make a judgment on the residence and use of the house.

Therefore, this article only focuses on the issue of whether the housing reform house purchased by the parties according to the housing reform policy and already acquired ownership belongs to the joint property of husband and wife, and its division in family property.

Case Introduction

Zhang and Liu are husband and wife, and they have a son named Zhang Xiaomou after marriage. Since 1975, Zhang and his family of three have been living in a public housing located on Beijing West Road in Gulou District.

In 1982, Liu passed away due to illness.

In 1990, Zhang and Wang registered for marriage, but they did not have any children after marriage.

In 1998, Zhang's unit sold his leased property on Beijing West Road in Gulou District to Zhang and carried out housing reform. During the housing reform, Zhang's 36 years of service were converted, and the property was registered under Zhang's name.

In 2020, Zhang passed away without leaving a will. When dividing Zhang's estate, Zhang Xiaomou claimed that he had actually rented the house involved in the case with his father Zhang and mother Liu for many years. The house involved in the case was a policy housing of his father Zhang's unit and belonged to Zhang's personal property before marriage. Wang claimed that the property was purchased by Zhang and Wang after marriage and belonged to their joint property as husband and wife.

Case analysis

1、 The determination of whether the housing reform house belongs to the joint property of husband and wife

According to the provisions of Article 1, Paragraph 2 of the "Several Provisions of the Supreme People's Court on the Time Effect of the Application of the Civil Code of the People's Republic of China", "Civil disputes arising from legal facts before the implementation of the Civil Code shall be governed by the provisions of the laws and judicial interpretations at that time, except as otherwise provided by the laws and judicial interpretations", this case shall be governed by Article 17 of the Marriage Law, which states that "the following property obtained by spouses during the existence of their marriage shall be jointly owned by them: (1) wages and bonuses; (2) income from production and operation; (3) income from intellectual property rights; (4) property obtained by inheritance or gift, except as provided in Article 18, Paragraph 3 of this Law; (5) other property that should be jointly owned by spouses". Property. Spouses have equal rights to dispose of jointly owned property Article 18 stipulates that "in any of the following circumstances, it shall be the property of one spouse: (1) the premarital property of one spouse; (2) medical expenses, disability living allowances, and other expenses obtained by one spouse due to bodily injury; (3) property determined to belong only to the husband or wife in a will or gift contract; (4) household items exclusively used by one spouse; (5) other property that should belong to one spouse", to determine whether the property involved in the housing reform case belongs to the joint property of Zhang and Wang.

1. For individuals who purchase pre marital housing reform properties

According to Article 18 of the Marriage Law, unless otherwise agreed by the parties, the property belonging to one party before marriage shall not be divided as joint property of husband and wife in divorce.

2. For the housing reform houses purchased during the existence of the marital relationship:

(1) Normally recognized as joint property of husband and wife

Article 19 of Interpretation 2 of the Marriage Law stipulates: "If a house is leased by one party before marriage or purchased with joint property after marriage, and the ownership certificate of the house is registered under the name of one party, it shall be recognized as joint property of husband and wife. Article 33 of the "Guidelines for the Trial of Family Dispute Cases (Marriage and Family Part)" issued by the Jiangsu Provincial High People's Court clearly states: "During the existence of a marriage relationship, one spouse purchases real estate in their personal name through personal property, and the ownership is registered in the name of the investing party. If the investing party claims it as personal property at the time of divorce, it will not be supported unless the parties have agreed otherwise or the investing party can provide evidence to prove that the acquisition of the real estate is not related to the other spouse and that the interests of the other spouse will not be damaged as a result. When dividing the real estate specifically during divorce, the investing party may be given more shares.

In practice, courts generally retrieve information from housing reform archives to investigate the situation of housing reform. If the information of Wang in this case is recorded in the housing reform archives, and the purchase price was paid by the joint property of Zhang and Wang, then the housing reform in this case will be recognized as the joint property of Zhang and Wang. The author searched the China Judgments Online and found that most courts have ruled in similar cases that houses are joint property of spouses.

(2) Based on the deduction of work experience, it is recognized as one party's personal property before marriage

Article 34 of the "Guidelines for the Trial of Family Dispute Cases (Marriage and Family Part)" issued by the Jiangsu Provincial High People's Court clearly states: "Housing reform houses are houses that the state provides policy based preferential benefits to employees in terms of value calculation based on various factors such as their length of service, position, salary, and family size. Such policy based preferential benefits have both personal and property attributes and belong to property rights. The purchase and renovation of houses by surviving spouses who enjoy the benefits of their own length of service and the length of service of their deceased spouse is the inheritance and transformation of the original lease rights, and should generally be recognized as joint property of husband and wife.

In case No. 4333 of Liao03 Minzhong (2022), the reasoning section of the judgment states: "The house involved in the case was approved by the Housing System Reform Office of a certain company in 2010 and sold to Chen in the form of compensation for a specific object on the basis of converting the total length of service of Chen and his deceased spouse Li to 51 years. Although Chen purchased the house involved in the case after his marriage registration with Zhao, the house was a policy welfare allocation house in a specific historical period. Unlike ordinary commercial housing, the preferential price of the house not only includes the length of service before Chen and Zhao remarried, but also includes the length of service of Chen's deceased spouse Li. Therefore, the house payment offset by the length of service of Chen and Li has property value. And all of them belong to Chen's premarital property. If the house involved in the case is recognized as the joint property of Zhao and Chen, it will not only infringe on Li's property value rights, but also lead to an imbalance of rights and obligations between Zhao and Chen. Therefore, this court does not support Zhao's claim that the house involved in the case should be the joint property of the couple

2、 How to divide in practice

Under the premise that the housing reform house purchased during the existence of the marital relationship is jointly owned by both parties and recognized by the court as joint property, in practice, the judgment results may vary depending on the specific circumstances of each case.

1. Per capita share

In the case of (2020) Jing 0107 Min Chu 763, the reasoning section of the judgment stated: "Unless otherwise agreed, if the property jointly owned by husband and wife during the existence of the marriage relationship is divided, half of the jointly owned property should be first divided into the property of the spouse, and the rest should be the inheritance of the deceased.

2. Distinguish the contribution of the two individuals to the property involved in the case and determine their respective shares

In the case represented by the author, the court, based on the fact that the housing reform property was purchased during the existence of the marital relationship, determined that the housing reform property was the joint property of the couple, without being able to clarify the information in the housing reform archives. However, based on factors such as the length of service of the housing involved in the case and the length of the second marriage, the contribution of the two parties to the housing involved in the case was judged, and the party with the greater contribution was given more points.

3. After the death of one spouse, the share shall be determined based on the contribution of the other spouse

The civil judgment (2021) Jing 0102 Min Chu No. 26312 states: "After the court's trial, it was found that the housing purchase contract involved in the case was signed during the marriage period between Chen and Liu, and the purchase cost was 223529 yuan, as well as Chen's 28 years of service and Liu's 25 years of service, registered under Chen's name. Liu died on September 7, 2001. The transaction records of Chen's bank account retrieved by the court showed that the balance of the account on September 7, 2001 was 2606.26 yuan, and the account continued to conduct transactions thereafter. On March 19, 2004, the purchase price of 49891 yuan was paid. From the transaction records of the bank account, it can be seen that the 49891 yuan funds came from the use of the account by Chen after Liu's death. The corresponding housing share obtained with 49891 yuan should be recognized as Chen's personal property.

In summary, compared to ordinary commercial housing, the situation of housing reform is more complex. In individual cases, it is necessary to fully understand the factual situation to safeguard the legitimate rights and interests of the parties involved.