When choosing the Proper law, the Law of the China on the Application of Laws in Foreign related Civil Relations should be applied to marital property disputes with foreign-related factors.

Article 36 of the Law of the China on the Application of Law on Foreign related Civil Relations stipulates that the real right of real estate shall be governed by the law of the place where the real estate is located. Because of disputes over real property rights, it is a generally recognized principle in private international law to take the law of the location of real property as the Proper law. Article 34 of the Civil Procedure Law of the People's Republic of China stipulates that a lawsuit brought on real estate shall be under the jurisdiction of the people's court where the real estate is located. It can be seen from this that the law of China should be applied to the litigation of real estate disputes in the mainland of China, that is, the Chinese law should be applied as its Proper law.

Article 1062 of the Marriage and Family Code of the Civil code stipulates that the property acquired by the husband and wife during the duration of the marriage relationship is the joint property of the husband and wife, which shall be jointly owned by the husband and wife. Article 1065 stipulates that both men and women may agree that the property acquired during the period of marriage and premarital property shall belong to each other, jointly, or partially, respectively, or jointly. The agreement shall be in writing. If there is no agreement or the agreement is not clear, it shall be considered as joint property.

Therefore, according to the laws of Chinese Mainland, if the house purchased during the marriage period is not specifically agreed to be owned by individuals, it is generally regarded as the property jointly owned by the husband and wife.

However, some countries' marriage laws adopt a separate property system for spouses, such as the UK and the Hong Kong Special Administrative Region in China. In the absence of a special agreement that the property is jointly owned by the husband and wife, the property purchased by an individual during the marriage period is considered as personal property.

Article 24 of the Law of the China on the Application of Law on Foreign related Civil Relations stipulates that the parties to a marital property relationship may choose by agreement to apply the law of one party's habitual residence, the law of the country of nationality or the law of the place where the main property is located. If the parties have not chosen, the law of the common habitual residence shall apply; If there is no common habitual residence, the law of the country of common nationality shall apply.

At this time, it is assumed that the couple is British, and one of them has purchased the property in Chinese Mainland in his own name during the marriage, without making a written agreement that the property belongs to a person. If the law of the Chinese Mainland, namely Article 36 of the Law of the China on the Application of Law on Foreign related Civil Relations, is applicable to the divorce, it will be regarded as the property jointly owned by the husband and wife (although the property does not contain the name of his or her spouse). However, if Article 24 of the Law of the China on the Application of Laws in Foreign related Civil Relations is applied, that is, the laws of their country of nationality are recognized as personal property.

For the same legal fact, the application of different provisions of a law leads to two completely different results, so whether the provisions of Articles 36 and 24 of the Law of the China on the Application of Laws in Foreign related Civil Relations conflict?

Some views believe that there is no conflict, and that Article 36 applies when dealing with external relations, while Article 24 applies when dealing with marital property.

At present, most court decisions support this view. For example, the (2020) Yue 01 Min Zhong No. 7707 case judgment believes that Article 24 of the Law of the China on the Application of Laws on Foreign related Civil Relations mainly restricts the rights and obligations of both spouses within the marital relationship, focuses on the internal effectiveness of the property relationship between husband and wife, and aims to confirm and encourage both spouses to independently choose laws to adjust their marital property relationship through agreement, Agree on the ownership of property acquired before marriage or during the existence of the marriage relationship. Applicable to adjusting the rights and obligations between spouses based on personal relationships, which better reflects the basic principles of autonomy of will in international private law. Secondly, the marital property relationship is based on the existence of a marital relationship between both parties, and is triggered by a specific personal relationship, which has strong personal attributes. Due to the parties being more familiar with the legal concepts, customs, and traditions of their country of nationality and place of residence, these two connection points are clearly closer to the interests and wishes of both parties to the marriage, and better reflect the principle of the closest connection in private international law. To sum up, Article 24 of the Law of the China on the Application of Laws in Foreign related Civil Relations stipulates the choice of the Proper law in marital property relations. On the one hand, it fully respects the principle of party autonomy, and on the other hand, it adheres to the basic principles of private international law that are most closely linked, avoiding the rigid application of laws in marital property disputes.

Some also believe that as long as it is dealing with real estate disputes, Article 36 should be applied instead of Article 24.

Let's take a look at how Article 24 stipulates.

Article 24 of the Law of the China on the Application of Law on Foreign related Civil Relations stipulates that the parties to a marital property relationship may choose by agreement to apply the law of one party's habitual residence, the law of the country of nationality or the law of the place where the main property is located. This means that the parties can agree on the Proper law to deal with the property relationship, that is, the law of the place of habitual residence, the law of the country of nationality or the law of the place where the main property is located. If there is no choice, the law of the common habitual residence shall apply; If there is no common habitual residence, the law of the country of common nationality shall apply.

At this point, we assume that the parties have no agreement, neither a common habitual residence nor a common nationality (belonging to individuals of different nationalities).

What law is applicable under Article 24? So personally, I believe that regardless of whether real estate belongs to marital property or non-marital property, the law of the place where the real estate is located should be applied. Otherwise, isn't Article 24 a problem of negligence?