Judicial Determination of Property Division in Same-Sex

Cohabitation Relationships: Legal Framework and Practical

Dilemmas Under China's Civil Code

Junyi Dong

School of Economic Law, Southwest University of Political Science and Law, Chongqing, China

Keywords: Comparative Law, Gender and Law, Transplanting Legal Innovations.

Abstract: This study investigates the legal regulation of property division in same-sex cohabitation in China. By

analyzing international models such as France’s PACS (civil solidarity pact) and the Netherlands’ same-sex

marriage legislation, combined with China’s judicial practices, it identifies the core challenges in protecting

same-sex partners’ property rights: heterosexual marriage-centrism has led to ambiguous legal norms and

inconsistent adjudication standards. The research proposes a phased reform framework: establishing a

property registration system to stabilize relationships in the short term; legally recognizing same-sex

cohabitation under the existing "cohabitation relationships" framework in the medium term; and advancing

same-sex marriage legalization with supportive legislative revisions in the long term. This framework aims

to progressively enhance legal protections for sexual minorities’ property rights and promote inclusive

societal development.

1 INTRODUCTION

With the evolution of societal progress and shifting

ideological paradigms, same-sex partnerships have

gradually emerged as a visible social phenomenon in

contemporary China. The legal and social recognition

of such relationships has varied significantly across

historical epochs and cultural contexts. Globally, the

status of homosexuality has undergone a

transformative trajectory from criminalization to

decriminalization and from pathologization to

depathologization. In the Chinese context, societal

regulation of homosexual conduct has predominantly

relied on moral censure rather than formal legal

codification (Li, 1995). The weakening of traditional

procreation-oriented values, coupled with heightened

social inclusivity and reduced moral condemnation,

has fostered increasing openness toward the

LGBTQ+ community in mainland China (Zhang,

2019). Since the Reform and Opening-up era,

Chinese society has demonstrated progressive

tolerance toward same-sex relationships,

accompanied by more objective understandings of

homosexuality. Two pivotal legal milestones marked

this transition: the abolition of the "hooliganism"

offense in 1997 and the removal of homosexuality

from the Chinese Classification of Mental Disorders

in 2001. These reforms formally transitioned same-

sex relationships in China into a non-criminalized,

non-pathological status. This paradigm shift not only

mirrors the evolution of societal perceptions but also

lays institutional groundwork for advancing legal

protections for same-sex partnerships. Crucially, it

creates a more permissive socio-legal environment

for addressing concrete juridical challenges,

particularly in resolving property division disputes

arising from same-sex cohabitation arrangements.

What individuals in same-sex relationships seek

extends beyond specific rights within a harmonious

legal system; they fundamentally desire societal

respect for their partnerships akin to that accorded to

marital unions. Since social acceptance often hinges

on legal recognition, the pursuit of legal validation

under the principle of equality has become their

primary demand (Coester & Deng, 2004). Amid

growing societal pluralism and heightened rights

consciousness, over thirty countries worldwide have

legally recognized same-sex marriage or civil

partnerships through legislation or judicial

precedents. In China, however, the Marriage and

Family Section of the current Civil Code strictly

adheres to the traditional concept of heterosexual

Dong, J.

Judicial Determination of Property Division in Same-Sex Cohabitation Relationships: Legal Framework and Practical Dilemmas Under China’s Civil Code.

DOI: 10.5220/0014389500004859

Paper published under CC license (CC BY-NC-ND 4.0)

In Proceedings of the 1st International Conference on Politics, Law, and Social Science (ICPLSS 2025), pages 547-552

ISBN: 978-989-758-785-6

547

marriage between one man and one woman.

Consequently, judges addressing property disputes

among same-sex cohabitants must rely on general

provisions from the Contract Section of the Civil

Code—such as those governing civil agreements and

joint ownership relationships (e.g., Article 464 and

Article 308). Non-economic contributions (e.g.,

domestic labor, care giving) remain difficult to

quantify, leading to inconsistent rulings in judicial

practice. This legislative gap not only exacerbates the

vulnerability of sexual minorities' rights but also

conflicts with the constitutional principle of equality

and the goal of achieving "substantive justice" under

the rule of law. As the demand for property protection

among same-sex cohabiting couples grows, we

cannot solely await the legalization of same-sex

marriage in China. Simultaneously, it is imperative to

identify the most viable legal pathways within the

existing framework to address property division in

same-sex cohabitation arrangements.

Current legal scholarship on same-sex unions

remains relatively limited, with most studies focusing

on issues such as legal dilemmas and potential

reforms of same-sex marriage or safeguarding the

rights and interests of same-sex partners. Specialized

research addressing property division in same-sex

cohabitation is even scarcer, and existing works

predominantly engage in theoretical discussions,

lacking in-depth analysis of judicial practice or

detailed elaboration on constructing concrete

institutional frameworks. This paper employs a

comprehensive methodology, reviewing domestic

and international legal regulations, academic

literature, and case materials to fully map the

theoretical foundations and practical realities of

property protection for same-sex couples. These

findings provide theoretical grounding and empirical

evidence for the study. Building upon this foundation,

the research conducts a comparative analysis of

property regimes for same-sex partnerships across

various countries and regions, distilling lessons from

these experiences to offer valuable insights for

refining China's legal framework governing property

protection in same-sex cohabitation relationships.

2 LEGAL PROTECTION

DILEMMAS IN PROPERTY

DIVISION FOR SAME-SEX

COHABITATION

RELATIONSHIPS UNDER

CHINESE LAW

2.1 Legislative Lacunae in Legal

Protections

In the case of Sun et al. v. Furong District Civil

Affairs Bureau of Changsha City (2016), the

plaintiffs sued the bureau after being denied marriage

registration but ultimately lost, a ruling that starkly

reflects the current state of China’s marriage system.

Article 1041 of the Civil Code of the People’s

Republic of China stipulates: "The state protects

marriage and family. Marital freedom, monogamy,

and gender equality shall be upheld." This provision

confirms that China’s marriage system exclusively

applies to heterosexual unions, denying same-sex

partners legal recognition as spouses through

marriage registration. Consequently, they are

excluded from marital property protections such as

the joint property regime, inheritance rights, and

divorce-related asset division safeguards, effectively

barring them from the statutory marital property

distribution framework.

The Judicial Interpretation (II) on the Application

of the Marriage and Family Section of the Civil Code

issued by the Supreme People’s Court outlines

principles for dividing property in cohabitation

disputes where neither party is married. However,

these rules do not explicitly address same-sex

cohabitation, leaving same-sex couples unable to

directly invoke these provisions during property

division. In practice, courts often resort to the

Property Section of the Civil Code and its principles

for dividing jointly owned assets. Yet, applying the

concept of "joint ownership" to same-sex

cohabitation disputes faces significant limitations.

First, establishing joint ownership requires clear

evidence of mutual intent regarding shared

property—a presumption readily applied to married

couples but rarely extended to same-sex partners due

to their lack of legally recognized status. Second,

joint ownership rules prioritize quantifiable financial

contributions, failing to account for non-economic

contributions like domestic labor or emotional

support within same-sex relationships. For example,

in long-term cohabitation where one partner manages

household duties while the other earns income, the

ICPLSS 2025 - International Conference on Politics, Law, and Social Science

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homemaker’s non-financial contributions may

receive no compensation under strict joint ownership

rules, resulting in substantively inequitable outcomes

that undermine equal protection of property rights.

A review of recent cases reveals inconsistent

judicial approaches. In property disputes over jointly

purchased homes, some courts rigidly allocate

ownership based on financial contributions, while

others adjust shares by considering the unique

dynamics of cohabitation. In Xu v. Ji and Zhi (2017),

the first-instance court ruled that the same-sex

relationship between Ji and Xu fell outside the

Marriage and Family Law’s scope, concluding that

neither long-term cohabitation "as spouses" nor

jointly acquired property during cohabitation could

establish joint ownership. The court emphasized the

independence of same-sex partners’ personal and

property relations, applying general property

acquisition rules. Conversely, in Shen v. Liu (2016),

the court recognized a decade of cohabitation with

commingled assets and upheld a co-ownership claim

based on the property’s joint registration and a written

agreement between the parties. Such disparities in

adjudication create unpredictability for same-sex

couples, increase dispute resolution costs, and erode

judicial credibility.

2.2 Inadequate Legal Enforceability of

Cohabitation Agreements

In the absence of legal marital relationships as a

safeguard, some same-sex couples choose to enter

into property agreements when cohabiting to clarify

the ownership and distribution of their assets. Such

contracts can be emotionally and financially costly,

while potentially negatively impacting their

relationship at the same time (Müller, 2002). The

common law system’s failure to scrutinize the

substantive fairness of cohabitation agreements—

exemplified by jurisdictions like England and Wales

prioritizing procedural fairness as the primary

validity criterion—creates structural oppression in

same-sex property relations. Excluded from

matrimonial equity doctrines (e.g., compensation for

domestic labor, equitable distribution principles),

vulnerable partners face dual risks: acquiescing to

disadvantageous contractual terms to avoid litigation

costs or losing bargaining power due to legal

unpredictability (Probert, 2004). Within China’s

judicial practice, the ambiguous legal status of same-

sex partnerships—unrecognized under current law—

subjects their property agreements to unpredictable

public order and good morals reviews. Courts may

adopt conservative or even dismissive stances toward

such agreements based on traditional moral

perceptions of "appropriate social order," rendering

same-sex couples’ property arrangements precarious

and unstable. This legal ambiguity undermines their

ability to effectuate asset distribution aligned with

mutual intent.

3 INSTITUTIONAL PRACTICES

IN PROPERTY PROTECTION

FOR SAME-SEX UNIONS: A

COMPARATIVE LEGAL

PERSPECTIVE

3.1 The Same-Sex Marriage Model

The Netherlands, as a paradigmatic example of this

model, revised its Civil Code based on constitutional

equality principles to fully extend civil marriage

rights to same-sex couples, granting them equivalent

rights and obligations as heterosexual spouses in

property, inheritance, and social welfare, thereby

eliminating institutional discrimination.

On April 1, 2001, the Netherlands amended Book

1 of its Civil Code, becoming the first country to

legalize same-sex marriage globally. This revision

redefined marriage as a union between two persons—

regardless of gender—fundamentally recognizing

same-sex marriages. It explicitly granted same-sex

spouses identical rights to heterosexual spouses,

including joint property regimes, inheritance rights,

tax benefits, and transnational marital recognition,

establishing near-identical legal status. Following this

precedent, Germany achieved full legalization of

same-sex marriage in 2017. Legislators eliminated

discriminatory treatment through amendments to

Article 1353 of the German Civil Code, formalizing

equality between same-sex and heterosexual

marriages. Since legalization, property division rules

for same-sex couples in Germany have fully aligned

with those for heterosexual marriages, ensuring equal

rights in asset distribution.

3.2 The Registered Partnership Model

Developed as a compromise between LGBTQ+

demands and societal acceptance in Western contexts,

this model addresses same-sex couples’ need for legal

recognition while accommodating prevailing social

norms. It provides a legal framework defining rights

and obligations, bridging the gap between marriage

and ordinary cohabitation.

Judicial Determination of Property Division in Same-Sex Cohabitation Relationships: Legal Framework and Practical Dilemmas Under

China’s Civil Code

549

In 2004, the United Kingdom enacted the Civil

Partnership Act, effective December 5, 2005. Under

this law, registered same-sex partners gained civil

rights equivalent to heterosexual spouses in property,

inheritance, immigration, and taxation. Civil

partnerships require formal registration without the

ceremonial obligations of marriage, lowering barriers

to legal recognition and expanding protections for

same-sex couples.

A similar approach existed in Germany prior to its

2017 marriage equality reform. The 2001 Life

Partnership Act established civil unions, granting

same-sex couples most marital rights (e.g.,

inheritance, tax benefits) except joint adoption.

However, these unions were not legally classified as

"marriage," rendering them a form of "limited

matrimony."

This model aligns with same-sex couples’

demands for marital rights. While avoiding explicit

"marriage" terminology, it ensures near-identical

legal protections to heterosexual marriages, achieving

parity in property regimes and other institutional

safeguards.

3.3 Hybrid Contractual Legislative

Model

The hybrid contractual legislative model refers to an

intermediate legal framework that combines statutory

rights and obligations with party autonomy through

civil agreements, granting unmarried partners certain

marital rights while retaining core restrictions on

marital status.

France’s Pacte Civil de Solidarité (PACS)

exemplifies this innovative model. Established in

1999, PACS provides a legally recognized form of

union for same-sex couples and unmarried

heterosexual partners. It is a civil contract entered into

by same-sex or heterosexual adults for shared

domestic life, occupying a legal status intermediate

between marriage and ordinary contracts. Distinct

from traditional marriage, PACS creates a unique

legal framework for partnerships (Shao, 2007). The

formation process is streamlined: partners need only

sign an agreement and register it with a court,

bypassing complex religious or civil ceremonies

(Steiner, 2000). This model prioritizes party

autonomy, particularly in property arrangements,

where contractual freedom is paramount. Couples

may select from three property regimes through

written agreements: a separate property system

(maintaining full independence of pre- and post-

agreement assets), a joint ownership system (sharing

assets proportionally or equally based on

contributions), or a hybrid system (combining shared

ownership of specific assets, such as real estate, with

individual ownership of others). Absent explicit

agreements, PACS property relations default to

partnership rules under the French Civil Code,

meaning jointly acquired assets may be treated as

communal property. However, distribution is

determined by each party’s contributions and

circumstances, with jointly purchased assets typically

divided according to financial input.

3.4 Analysis of Global Legislative

Models

Legislation on same-sex unions globally has evolved

from exclusion to differentiated protection and,

increasingly, comprehensive recognition.

Historically, many nations criminalized or rejected

same-sex relationships. As societal attitudes shifted

and human rights awareness grew, some jurisdictions

began offering limited legal protections. Early

reforms, such as the UK’s Civil Partnership Act

(2004), introduced civil unions or registered

partnerships to provide tailored safeguards for same-

sex couples. Today, the global trend leans toward full

legal equality, driven by demands for civil rights and

human dignity (Martin, 1994).

A comparative review reveals that under marriage

equality and registered partnership models, same-sex

and heterosexual couples adhere to identical property

regimes. These models emphasize legal parity,

ensuring same-sex couples receive property

protections equivalent to their heterosexual

counterparts. In contrast, contractual models (e.g.,

France’s PACS) resemble voluntary, notarized

property agreements that regulate asset arrangements

without conferring marital status. While respecting

autonomy, such frameworks effectively resolve

property disputes between same-sex partners. These

legislative practices demonstrate that nations—

whether through marriage equality or partnership

laws—are striving to achieve substantive equality in

property relations for same-sex couples, providing

clear and enforceable legal safeguards. This trend has

heightened international attention to LGBTQ+ rights,

spurring continuous refinement of legal systems

worldwide and fostering more inclusive societal

frameworks.

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4 RECOMMENDATIONS FOR

IMPROVING PROPERTY

PROTECTION IN SAME-SEX

COHABITATION

RELATIONSHIPS IN CHINA

Many scholars argue that legalizing same-sex

marriage would resolve all property division issues

for same-sex cohabitants. However, given China’s

current social and political realities, the path to same-

sex marriage legislation remains lengthy and fraught

with challenges, making its realization unlikely in the

near term. Simultaneously, as societal acceptance of

homosexuality gradually increases and the LGBTQ+

community continues to grow, the urgent need to

address the property protection challenges faced by

same-sex couples under the existing legal framework

cannot be overlooked. Therefore, it is imperative to

actively explore and implement protection

mechanisms suited to China’s national conditions.

This includes expanding the legal recognition of

'cohabitation relationships' to explicitly include same-

sex partnerships and establishing a reasonable

property registration and division system to safeguard

the property rights of same-sex cohabiting couples.

4.1 Short-Term Strategy: Establishing

A Property Registration System for

Same-Sex Cohabitants

In the short term, China could draw on the property

registration practices of France’s Pacte Civil de

Solidarité (PACS) to create a property registration

system for same-sex couples. This system would

clarify the ownership and management of shared

assets (e.g., real estate, vehicles) and reduce disputes

arising from ambiguous property relationships. The

state could establish specialized institutions or

systems for same-sex cohabitation property

registration, allowing same-sex couples to voluntarily

registration procedures should be formulated to

ensure standardization and transparency, such as

requiring couples to submit asset inventories, proof of

cohabitation, and other documentation during

registration. Registered information could serve as

preliminary evidence in property division cases, and

notarized property agreements could be filed online

to establish third-party enforceability. Registered

assets should be managed and divided according to

the registered terms during and after the relationship,

providing clearer legal protections and minimizing

disputes.

4.2 Medium-Term Strategy:

Expanding the Legal Definition of

'Cohabitation Relationships'

As societal acceptance of homosexuality improves,

China could revise judicial interpretations or amend

laws to explicitly include same-sex cohabitation

within the legally recognized scope of "cohabitation."

This recognition would apply to couples who

demonstrate a sustained and stable intent to share a

life together and engage in actual cohabitation,

without requiring marital intent or formal procedures

(Xia, 2017). Specifically, the definition of

"cohabitation relationships" should be expanded to "a

durable and stable shared living arrangement,"

removing gender-specific language. Same-sex

couples meeting certain conditions (e.g., cohabitation

duration, mutual intent) would gain legal recognition.

For instance, similar to France’s PACS requirements,

China could mandate cohabitation agreements and

joint life commitments. This approach would build on

existing legal frameworks, avoiding direct challenges

to the traditional marriage system while providing

minimal safeguards, such as granting same-sex

couples rights comparable to heterosexual

cohabitants in property disputes.

4.3 Long-Term Strategy: Progressive

Realization of Marriage Equality

Respect for human dignity, recognition of individual

autonomy, and the social reality of same-sex

partnerships necessitate their legal normalization

(Xiong, 2007). The impact of any legal reform

depends on its alignment with societal values (Scott,

2000). If same-sex marriage is perceived as

incompatible with contemporary norms, its

acceptance and influence will remain limited. While

China’s political and cultural context currently

precludes legal recognition of same-sex marriage, the

state could initiate social surveys and public

discussions to gradually increase awareness and

acceptance, laying the groundwork for future

legalization. In the long term, China could follow the

examples of the Netherlands and Belgium by revising

the definition of marriage in the Civil Code (Article

1041) to explicitly include same-sex couples. This

would entail comprehensive legalization of same-sex

marriage, granting equal rights in property regimes,

inheritance, and other marital protections. Such

reforms would align China’s legal framework with

constitutional equality principles (Article 33) and

global human rights advancements, ensuring

substantive justice for sexual minorities.

Judicial Determination of Property Division in Same-Sex Cohabitation Relationships: Legal Framework and Practical Dilemmas Under

China’s Civil Code

551

5 CONCLUSION

The legal regulation of property division in same-sex

cohabitation relationships embodies the practical

implementation of the constitutional principle of

equality within the domain of family law. Through

comparative legal analysis and domestic empirical

research, this study uncovers the institutional

challenges and reform pathways for protecting the

property rights of same-sex couples in China. From a

comparative perspective, international practices such

as France’s Pacte Civil de Solidarité (PACS) and the

legalization of same-sex marriage in the Netherlands

provide valuable insights for refining China’s legal

framework for same-sex partnership protections.

Tailored to China’s sociopolitical context, a phased

strategy framework—encompassing short-, medium-

, and long-term measures—serves as an effective path

toward gradual improvement: establishing a property

registration system in the short term to enhance

relational stability, expanding the legal recognition of

"cohabitation relationships" to explicitly include

same-sex partnerships in the medium term, and

advancing toward marriage equality through

legislative reforms in the long term to ensure

comprehensive legal protections. Perfecting the

property protection regime for same-sex cohabitation

not only provides clear legal safeguards for LGBTQ+

couples and reduces disputes but also promotes

societal pluralism and inclusivity, advancing the

constitutional principle of equality and the goal of

"substantive justice" in a rule-of-law society. Moving

forward, sustained attention to theoretical and

practical developments in protecting same-sex

couples’ property rights, coupled with legislative and

judicial innovations, will drive progress in

safeguarding the rights of sexual minorities,

contributing to a fairer, more just, and inclusive social

environment.

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