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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