Separate property is property that belongs to one spouse alone rather than to the couple. Article 1063 of the PRC Civil Code lists five categories: property owned before the marriage; compensation or allowances received for personal injury; property that a will or gift contract says belongs to one spouse only; articles used exclusively for daily life by one spouse; and other property that should belong to one spouse. Separate property generally stays with its owner on divorce.
Why it matters
Because everything acquired during the marriage is presumed to be community property, the spouse claiming separate property usually carries the burden of proving it. The distinction also shifts over time: a pre-marital flat remains separate property, but mortgage payments made from marital income, and in some cases the increase in value attributable to those payments, may be shared. Income generated by separate property, such as rent, can be treated differently from passive appreciation. Getting the classification right can change the outcome of a divorce by a large margin.
How it works in practice
A Hong Kong resident bought a flat in Guangzhou before marrying a mainland spouse. After the wedding, the couple repaid part of the mortgage from their joint salaries. On divorce, the court confirmed the flat was his separate property, but ordered him to compensate his wife for her share of the mortgage repayments made during the marriage and the related appreciation. Had he kept clear records and a written agreement, the discussion would have been much shorter.
Common mistakes
- Relying on memory instead of documents to prove what was owned before the marriage
- Depositing pre-marital savings into a joint account and spending from it for years
- Assuming a gift from parents during the marriage is automatically separate property; without clear designation it may be shared
- Ignoring that rental or business income from separate assets can be treated as marital income
- Not recording separate-property arrangements in a prenuptial or marital property agreement