Marriage and Divorce Reform in China

by ZHANG XUEJUN

[The following are quotations from an article discussing recently-enacted marriage and divorce reform in China. This writing is in no way affiliated with ADR, and does not necessarily reflect the opinions of ADR.]

[Xuejin, Z. (2001) Amendment of the marriage law in China. International Journal of Law, Policy and the Family, v16 n3, 399-409.]


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ABSTRACT

The 2001 modification of the Marriage Law passed in 1980 [happened as follows:]... In October 1995, the 16th Conference of Standing Committee of the eighth National People's Congress resolved to modify the Marriage Law. Under the leadership of the leading Branch, a Marriage law was drafted. The draft was submitted to the l8th, 19th, and 21st Conference of the Standing Committee of the 9th National People's Congress for examination and approval, and adopted by the 21st Conference of the Standing Committee of the 9th National People's Congress on 28 April 2001. The amendment extensively modifies the former Marriage Law, mainly in the areas of monogamy, domestic violence, void and voidable marriage, matrimonial property, divorce and its consequences, protective measures, and liability.


[selected excerpts]

I. THE NEED TO REVISE THE MARRIAGE LAW

...

The law had not been able fully to meet the requirements of administering a country by law and constructing a socialist country within the rule of law. It did not contain general provisions governing personal relations; for example, it did not say what the legal consequences were for marital relationships formed without satisfying the legal requirements and procedures for a legitimate marriage. In the system of property ownership division, there were no provisions regarding the management of property held in joint possession, the distinction between a common debt and individual debt, and the use of common or separate property to meet debts. In familial relationships, there were no regulations regarding the legitimacy of children, or legal requirements for the formation of steprelationships. In the divorce provisions, there were no stipulations regarding the right of visitation, or circumstances regarding joint custody of children after divorce. There were no stipulations in the supplementary provisions to indicate when family members might acquire legal liability for each other.

Such incompleteness of the previous law had caused inconvenience for parties who were going through the litigation process, and for judicial practice in general. For example, the police often refused in cases of domestic violence to prosecute according to the legal provisions of the PRC because they felt such cases were private matters and fell outside the explicit regulation of the law. Similarly, the courts thought that claims for damages on account of extra-marital affairs fell outside Article 120 of the General Regulations of Civil Law (which provides remedies for contravention of rights to name, reputation, honour and image). Nor did courts declare marriages void or voidable if consent was obtained through duress, or when regulations regarding marriage formation or capacity were not followed.

The revision of the 1980 Marriage Law was also needed in order to carry out the principle of administering society according to a moral framework which would enhance the construction of a socialist spiritual civilization. This refers to the establishment of a system of morality compatible with a socialist market economy, democratic politics and a socialist legal system, while allowing it to become a behavioral mode which people could generally recognize and agree with, thereby accepting it on a voluntary basis. To administer according to morals involves disciplining the Party, disciplining politics, and promoting administrative ethics and moral standards in general. All of which are intimately related to the area of marriage. The policy of eradicating corruption by certain Party officials and selecting talented and ethical government officials seeks to enforce discipline in the Party. Strengthening the family and supporting a civilized and healthy way of life is part of the construction of moral standards in the citizenry. Without an authoritative and mandating legal force that guarantees the conduct of citizens, administration according to morals cannot be established. Just as punitive measures are necessary to correct behaviour, so external discipline is necessary to induce self-discipline. Likewise, legal regulations by the Marriage Law draw the moral boundaries in relation to marriage. If that law is deficient, illegal conduct within marriage cannot be handled satisfactorily, and 'marital morality' becomes a powerless doctrine. The deficiencies in the Marriage Law and the deterioration of moral standards in society are likely to cause an upsurge of corrupt and decadent behaviour within marriages, and the wish to strengthen the family and support a civilized and healthy way of life becomes mere pretence. For example, in feudal China, men of the upper class were permitted to have concubines. The masters of the house could use force to ensure that the wives obeyed husbands and that children were subservient to their parents. After the PRC was established, the two Marriage Laws upheld the principle of one-husband one-wife and the protection of the rights and interests of women and children. But they lacked specific regulations. This led to an increase in unlawful actions, such as extra-marital relationships and domestic violence. It seemed that feudalism revived. So, by incorporating into the Marriage Law a moral standard that is consistent with current thinking, and which reflects a high level of morality and the principle of fairness, the law can, in turn, contribute to the construction of a moral norm within marriages.

Furthermore, the amendment of the 1980 Marriage Law was needed in order to protect citizens' rights of marriage and the common interests of society, and to promote the socialist system of marriage. The 1980 Marriage Law was founded on the principles of freedom of marriage (between two willing adults), monogamy, gender equality, protection of the legal rights of children and senior citizens, and family planning. ... Freedom of marriage, monogamy and gender equality have become the social norm, the social status of women, children and senior citizens has seen obvious improvements, and family planning has been practiced ... The Marriage Law has played an important role in protecting people's rights of marriage, in establishing fair, harmonious and civilized marriages, facilitating the construction of socialist material and spiritual civilization, and expediting social progress.

However, for various reasons, there are still corrupt incidents of bigamy, adultery, domestic violence, the violation of visitation rights by parents who have child custody after divorce, of senior citizens being abused and neglected, of the freedom of remarriage being obstructed by children. There is also corruption in the concealment, transfer, illegal sale and destruction of common property, of falsification of debt liabilities in order to misappropriate a spouse's property, and of abducted women being forced into marriage. All these count toward the violation of citizens' benefits. They encourage criminal behaviour and threaten social stability. In some areas, they pose severe challenges to the socialist system of marriage.

Suggestions by the public were diverse, concerning most issues related to the revision of the Marriage Law. To call for suggestions from the general public during the process of the revision is an important practice of democratic legislation. It is a manifestation of people's participation in politics and is part of the process of educating the public about the Marriage Law. On the basis of opinions from the public thus collected, the NPC's Commission of Law once again examined each Article in the Marriage Law, studied and analyzed complicated issues that were of public concern, and made further modifications in the revision draft.


3. THE MAIN REVISION

A. Monogamy

In order to carry through the principle of monogamy, an additional clause was added to the General Provisions stating that, 'it is illegal to have extra-marital relationships' (Article 3(2)) with the intention of promoting a civilized and healthy way of life. The additional clause states that, 'husband and wife have the responsibility to remain loyal to each other.' With regard to divorce, the following clause was added: 'occurrences of bigamy and extra-marital relationships are signs that the loving relationship between husband and wife is broken' (Article 32(3)(1)). Additional clauses were also introduced under the head of 'social assistance and legal liability provisions', giving the innocent party the right to claim damages from the party involved in bigamous and extra-marital relationships (Article 46(1)(2)). There has been a successful adjudication on compensation for the damage caused by divorce in Nankai County, Tianjin City. It was reported that the court allowed the wife's divorce application and ordered the husband to pay 2000 yuan to her because of his extra-marital relationship which had lasted for about seven months. According to the amended Marriage Law (Clause 46) 'If a married person cohabits with others and this causes the divorce, the innocent party has the right to claim compensation for the harm'. So in the aforementioned case, the court supported the wife's claim for divorce and for compensation (The Newspaper of the People's Court, 21 June 2001).

Under 'divorce', an additional clause was added stating that 'occurrences of domestic violence, abusive behaviour and abandonment are signs that the loving relationship between the husband and the wife is broken' (Article 32(3)(2)).

...

F. Legal Causes for Divorce

In order to establish legal grounds for divorce, the Marriage Law adds an additional clause under 'divorce provisions': 'under the following circumstances, if mediation fails, divorce should be granted on the following grounds: (I) bigamy and extra-marital relationships; (2) abuse against, and abandonment of, family members; (3) habitual gambling and drug abuse and other vices which remain incorrigible after frequent attempts at rehabilitation; (4) having lived apart for two years as a result of failure to maintain a loving relationship; (5) other circumstances leading to failure to maintain a loving relationship' (Article 32(3)).

G. Special Procedures for Divorce Suits

Under 'divorce provisions', the original clause 'if the spouse of a soldier in active service desires a divorce, the soldier's consent must be obtained' is revised by adding, 'unless the soldier is at severe fault' (Article 33). A further additional clause provides that: 'the husband may not apply for a divorce within the first six months after the wife's pregnancy is over' (Article 34).


J. Legal Liabilities

In order to hold those who have acted illegally against family members legally accountable for their actions, the Marriage Law, under 'social assistance and legal liabilities provisions', has added that: 'acts of bigamy, domestic violence, abuse, neglect and abandonment constitute criminal offences, and the perpetrators will be punished. Victims can bring private prosecutions, according to the statute on Penal Procedure, before the People's Court; the Public Security Bureau shall conduct an investigation into the case, and the case can be prosecuted by the Procurator's Office' (Article 45). An additional provision added that 'where other laws make relevant stipulations regarding illegal conduct within families, they are to take precedence' (Article 49).






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