Question:
Before marriage, my father gave me a car registered under my name. During the marriage, since I did not use the car, I leased it out and generated income from the lease. Now, upon divorce, my husband is requesting a share of the rental income. May I ask whether this request is legally recognized?
Answer:
The husband’s request to share the rental income from the car upon divorce has legal grounds and may be considered lawful, if the car is the wife’s separate property but the profits generated during the marriage are determined as common property.
Pursuant to Clause 1, Article 33 of the Law on Marriage and Family 2014, the common property of husband and wife includes:
“The common property of husband and wife comprises property created by either spouse, income from labor, production and business activities, yields and profits arising from separate property, and other lawful income during the marriage period, except in cases of division of common property of husband and wife during the marriage; property inherited jointly or gifted jointly to both spouses, and other property that husband and wife agree to regard as common property. Land use rights obtained by husband and wife after marriage are considered common property, except where inherited separately, gifted separately, or acquired through transactions made with separate property.”
Accordingly, although the car is the wife’s separate property (gifted before marriage), the income generated from leasing the car during the marriage is considered profits from separate property. In principle, such profits are part of the common property of the husband and wife, unless the spouses have an agreement otherwise regarding the property regime.
Judicial practice has also recognized this view: in many civil judgments on property division upon divorce, the Courts have consistently determined that yields and profits from separate property (such as rental income from houses or vehicles) during the marriage must be considered common property to be divided.
However, it should also be understood that the specific division of the rental income depends on the principles of division of common property under Article 59 of the Law on Marriage and Family 2014. Accordingly, common property is divided in half but taking into account factors such as the contribution of each spouse, fault in violating the rights and obligations of the spouses, family circumstances, and the condition of the property. Therefore, in actual adjudication, the rental income may not be divided equally, but rather based on the above factors.
