Revision of the Chinese Marriage Law in 2001

In the latter part of 2001, I was invited to the Norwegian Institute of Human Rights (NIHR) as a visiting scholar for six months. Apart from doing my research on the subject of domestic violence against women, Lisa Stearns, former Director of the China Program, and Otto Malmgren, the Acting Director, suggested the revision of the Chinese Marriage Law in 2001 as the theme for a working paper.

It was definitely a superb idea, since this theme is not only quite familiar to me, but also was a major legal event in the history of the Chinese Marriage Laws. To introduce the background, the process, the revised contents and the protection of women’s rights and interests of the Chinese Marriage Law to the Norwegian professionals interested in this field, would be worthwhile and a pleasure.

As soon as I began to draft this paper, I found that it was not as easy as I thought. I met two main problems, one was recalling and rethinking the whole revising process that lasted four and a half years; the other problem was that I felt my English skills were not adequate. However, I was fortunate enough to obtain much help from the staff at the China Program. Otto Malmgren and Camilla Wedul took time for several meetings with me to discuss legal issues and language matters and inspired me very much to continue my work; Lisa Stearns often encouraged and took care of me; and Cecilie Bakke proposed a lot of amendments and additional suggestions to my writing. I would like to express my gratitude and respect to them.

This working paper would not have been possible without the above Norwegian friends’ contribution. All opinions shown in the working paper are the author’s responsibility. The China Program at NIHR helped make the final edition.

Ninglan Xue

Guest researcher

Norwegian Institute of Human Rights

University of Oslo

May 2002

Contents

Revision of the Chinese Marriage Law in 2001

Preface................................................................................................................................. 1

Introduction...................................................................................................................... 3

Need for Revision.............................................................................................................. 4

The Process of Amendment............................................................................................ 6

Key Controversial Issues during the Public Consultation Period.................... 8

1.Bigamy and Cohabitation with a Third Party........................................................ 8

2.The Debate on the Legal Definition of Domestic Violence................................... 10

3.Joint Ownership of Prenuptial Property................................................................. 12

4.The Legal Criteria for Divorce in a Court of Law.................................................. 13

The Protection of Women’s Rights and Interests................................................. 15

1.Protection of a Wife’s Personal Rights by Prohibiting Domestic Violence....... 16

2.Protection of a Wife’s Property Rights at the Time of Divorce........................... 18

3.Protection of a Wife’s Interests by Limiting Husband’s Right to Divorce........ 20

Concluding Remarks:.................................................................................................... 21

Introduction

The Marriage Law is the basic code governing marriage and family relations in China. It is generally acknowledged that the Chinese Marriage Law is broadly defined, regulating both marriage relations and family relations.[1]

There have been two marriage laws enacted in succession since the People’s Republic of China (PRC) was founded. The first one was promulgated in 1950.[2] It was the first law adopted after the founding of the PRC in 1949. It aimed at abolishing the patriarchal marriage and family system that featured compulsory arranged marriages, superior social status of men over women and neglect of children’s rights and interests. In the second marriage law of 1980, freedom of marriage, monogamy, equality between men and women and protection of women’s and children’s rights and interests were stipulated.

The current marriage law, which, prior to the revision, had 5 chapters and 37 articles was formulated in 1980 and entered into force on 1 January 1981. The law of 1950 was repealed from the same day. The new law focused on strengthening the gender equality-based marriage and family system and tackling the real problems within marriage and family relationships.

As is well known, Chinese society has experienced a series of tremendous changes since the application of the “Reform and Opening Policy” initiated in 1978. In the past two decades, with the country shifting from a planned economy to a market economy, Chinese marriage and family relations have also undergone dramatic changes. The Marriage Law of 1980 gradually showed its weaknesses in settling marriage and family disputes both in judicial practice and in non-litigant mediation. Revising the Marriage Law of 1980 increasingly obtained unanimous support on all levels in society. However, what and how to revise it caused prolonged debates everywhere - in academic circles, legislatures and in the media as well as among ordinary people. The last few years before the adoption of the revised Marriage Law, it became a hot social topic countrywide. Such great attention paid to the revising of a law had never been seen before. As will be shown later, its profound significance is obvious.

On 28 April 2001, the amendments to the marriage law were passed by the 21st session of the Standing Committee of the Ninth National People’s Congress (NPC). Based on the Marriage Law of 1980, the revised Marriage Law was expanded to 6 chapters with 51 articles. The contents include chapters on General Principles, Marriage, Family Relations, Divorce, Succor Measures and Legal Responsibility, and an Appendix. In total, 9 articles have been amended and 14 articles added in the Revision. Meanwhile, some new legal regimes have been built up in the Revision, namely, invalid marriages, separate property of each party, the right to visit children after divorce, the right of no-fault party to ask for compensation at the time of divorce, etc.

On 27 December 2001, the Supreme People’s Court promulgated the Interpretation for the People’s Courts on implementing the revised Marriage Law of the PRC. This latest judicial interpretation makes the revised Marriage Law clearer in many aspects. In general, all these new rules governing marriage and family life will more effectively protect Chinese people’s rights and interests relating to marriage and family, especially women’s, children’s and the elderly’s rights within the scope of the law.

According to the national legislative schedule, the revised Chinese legal system will be fully formed in 2010. Adopting the PRC Civil Code is the core task in this schedule since other basic laws like the Criminal Law, the Procedure Laws and the Administrative Laws have already been adopted. There is common consensus in Chinese academic circles that the Marriage Law should henceforth be treated as a part of the Civil Code rather than an independent legal department in the Chinese legal system. Hence, the Chinese Marriage Law will be amended further and be incorporated into the Chinese Civil Code in the future.

Need for Revision

There are a number of reasons for revising the Marriage Law of 1980. First, the possessions that people own have increased rapidly both in quantity and type since 1978. There used to be almost only articles for daily use in most Chinese families, however, nowadays more and more families or individuals have their own real estate like houses, factory buildings and movables such as cars, shares, and so on. Thus, there is a greater need to protect citizens’ private property, including couples’ separate property.

Secondly, the present public notion regarding marriage and family relations is quite different from that held in the past. People attach greater value to the quality of their marriage and family relations as a result of improving living standards. Neither do people consider divorce as a shameful issue any more, as a matter of fact, the divorce rate has actually increased in recent years. Reportedly, the divorce rate in China was 3.4% in 1979 and has increased to 13.6% in 1999.[3] On the other hand, bigamy and “living with and supporting a mistress” (“bao er nai”[4]) have become more common, in particular in Southern China like Guangdong Province. The married men provide housing, cars and living expenses etc. to their mistresses. In some cases, the husband, wife and mistress even live in the same residence, which certainly can be seen as an action akin to bigamy. Yet, a majority of mistresses have been set up with separate residences, some of them live there in the guise of secretaries or housekeepers. The men in question include not only businessmen, but also government officials and Party leaders.[5] The All-China Women’s Federation and local Women’s Federations often receive complaints from wives about such incidences, and at the same time they appeal for measures to curb it and ask the third party for compensation.

Thirdly, after the United Nations’ Fourth World Conference on Women in Beijing in 1995, the problem of domestic violence has received a great deal of attention from all circles in society, and some severe cases were even reported in the media. There are not yet statistics available for the whole country, however, it is estimated that 30 % of Chinese families have experienced domestic violence, most of which involve cases against women or children.[6]

Finally, the Marriage Law of 1980 contained a number of weaknesses within its own stipulations. For instance, the absence of separate property regime and agreed property regime resulted in some people relying on marriage to obtain the other party’s prenuptial property when they petitioned for divorce under the jointly conjugal property regime. In 1993, a judicial interpretation of the Supreme People’s Court set certain limitations. It was still possible for one party to jointly possess the other party’s separate property after their marriage had lasted at least 4 years or 8 years.[7] Another issue in the Marriage Law is the lack of a general stipulation of kinship, such as the legal extent of the group “relatives” and the method for calculating the degree of consanguinity. Consequently, the interpretations regarding the extent of close ties of relatives are different between the Civil Law and the Criminal Procedure Law.[8] Chinese jurists think that such legal issues should be the object of the Marriage Law alone, in order to avoid conflict among the different laws on domestic relations. This legal loophole would be plugged if the general stipulation of kinship were laid down in the Marriage Law. Apart from what has been mentioned above, other legal regimes like invalid marriages, guardian relationships, adoptions and so on need to be built up or to be further improved as well.[9]

In a word, the reasons for revising the Marriage Law are not only to meet the demands of a rapidly changing Chinese society, but also to remedy weaknesses in the current Chinese marriage and family legal framework.

The Process of Amendment

Legal scholars and experts first presented the revised proposals at a meeting on the tenth anniversary of the adoption of the Marriage Law of 1980. After that, academic articles concerning the topic were published regularly. How to revise the Marriage Law has been the main theme of the annual meetings of the Association of Marriage and Family Law at the China Law Society since 1991. Some officials of the national legislature were invited to attend the meeting in order to raise the legislature’s awareness. Finally, the scholars’ appeal was given full attention by the legislature. In October 1995, the revision of the marriage law was listed in the legislature’s revision schedule. After one year, a leading group responsible for drafting the revision was established, the Ministry of Civil Affairs took charge of it and several national agencies took part.[10] The leading group entrusted some legal experts to draft the revision. It was four and a half years until the revision was finally adopted in April 2001, during which time the revision work underwent the following stages:

1) In 1999, the leading group presented the legal experts’ draft to the Committee of Legislative Affairs (CLA) of the Standing Committee of the NPC, at which time the CLA took over the responsibility for the revision work.

2) In August 2000, the draft revision of the Marriage Law was sent for advice to relevant organizations and interest groups, such as research institutes, law schools and the provincial courts.

3) In October 2000, the Standing Committee of the NPC examined the draft revision for the first time.

4) In December 2000, the plenary meeting of the Standing Committee of the NPC discussed it a second time.

5) In January 2001, the draft revision was published in the national press to gauge the public opinion.

6) On 28 April 2001, the 21st session of the Standing Committee of the NPC passed the Amendments to the law and they came into effect on the same day.

Many social and community groups participated in the revision process. A survey conducted by the All-China Women’s Federation in August 2000 showed that over 90% of the people asked supported the revision of the Marriage Law. It is said that the CLA received nearly 4000 submissions during the public consultation period; the highest number of petition recorded in recent years. According to Sina.com’s news site, the number of people who participated in Sina.com’s discussions on the revision of the Marriage Law reached 30,000 to 40,000 on each of the subtopics discussed.[11] As one sociologist said: "The significance of the revision process is much greater than the amendments to the law itself". It is indeed a reasonable observation, since such a process is definitely beneficial for the spreading of legal knowledge and also favorable for the application of the revised Marriage Law. Moreover, this degree of people’s direct participation in the process of government policy making has not been seen before, and it reflects increasing public awareness and further democratization in China.

Key Controversial Issues during the Public Consultation Period

1. Bigamy and Cohabitation with a Third Party

The principle of monogamy has been statutory in China since the first Marriage Law.[12] The revised Marriage Law prescribes that a marriage system based on monogamy shall be applied, as it is stipulated in Article 3: ”Bigamy shall be prohibited”.[13] However, prohibiting bigamy is only a principle in the Marriage Law. Clarifications of what kind of actions shall constitute bigamy and what types of bigamy are recognized are laid down in the Criminal Law rather than in the Marriage Law. There are two types of bigamy in the Chinese Criminal Law and the relevant judicial interpretation of the Supreme People’s Court.[14] The first type of bigamy is where a married person undertakes a marriage registration with a third party, and the third party knowingly enters into the marriage. The other form of bigamy defined by the judicial interpretation, is where the parties live together as husband and wife without a marriage registration, but at least one of them is already legally married. Chinese legal experts normally call the former “de jure” bigamy, because one of the parties has two registered marriages. And the second kind of bigamy is called “de facto” bigamy because of the lack of marriage registration.

In order to curb the phenomenon of bigamy and “bao er nai”, a local provision was adopted in Guangdong Province in 2000, i.e. prior to the revised Marriage Law. It provides that if a married person undertakes a traditional marriage ceremony or lives together with a third party in the role of husband and wife, he or she commits bigamy. By contrast, extra-marital relationships or arrangements in which a married person enjoys relatively stable sexual relations with another person to whom he or she is not married, and in return for money or other financial payment, are treated not as bigamy but as prostitution. However, the Women’s Federation of Guangdong Province thought that this act did not go far enough by prohibiting only this kind of violation of monogamy. They considered that the following two situations should also be regarded as acts of bigamy: where a married person has cohabited with a third party for more than six months or a year; or where the two parties have had a child.

These proposals to widen the legal scope of bigamy were considered during the revision process. Some legal experts saw “bao er nai” as a complicated phenomenon including different types of acts, i.e. either an act akin to keeping a concubine or an act of “regularly seeing a prostitute”. Hence, “bao er nai” should be subject to different provisions according to the specific circumstances of the case in question. An act akin to keeping a concubine shall constitute bigamy, while the other types of “bao er nai” should be dealt with in light of the provisions of the Administrative Punishment Act.[15] The legal experts further pointed out that the Marriage Law is a part of the Civil Law, which belongs to the private legal system and mainly regulates marriage and family relationships by means of civil rights and duties. Thus, the question of whether to widen the definition of bigamy is not a matter for consideration in the context of reviewing the Marriage Law, but should be considered in the context of a review of the provisions of the Criminal Law.

Finally, the provision “A married person cohabiting with a third party shall be prohibited” is regarded as a general principle in the Revision (Article 3, para.2). It was generally thought that “bao er nai” should be embodied in it. “Bao er nai”, whether or not it leads to a conviction for bigamy, is one of the grounds on which the People’s Court may grant a divorce to the litigant if mediation fails. The no-fault party enjoys the right to make a request for compensation at the same time.[16] Yet, uncertainty still exists in the law; as some judges pointed out that the term of “living together as husband and wife” should be specified in order for this provision to operate more easily - for example, how long they must have lived together.

Related to this issue, Article 4 has been added to provide that: “Husband and wife shall be faithful to and respect each other; maintain equal, harmonious and civilized marriage and family relations.” During the public consultation period, some sociologists thought that this provision would be too general to enforce.[17] The strongest opinion against it even went so far as to argue the article actually amounted to a backward step by stipulating the right of a spouse to sexual monopoly. Some even believed that it was not a legal term but a moral term and that all legal terms should be concrete and more applicable. However, most legal experts approved of it. They thought that one of the functions of legal provisions is their directional influence. This article is a statement of principle and reflects the ethical feature of the marriage law - it is much better than to formulate the spouses’ rights, which include the right and duty to cohabit, the duty of fidelity to each other, etc. Indeed, it would have been a big step backward to include the spouses’ rights in the revision. The latest judicial interpretation of the Supreme People’s Court points out: “If a litigant files an action solely on the basis of Article 4, the People’s Court shall dismiss such a request; for cases that have already been received, the court shall reject such actions by order.” [18] This interpretation further ensures that Article 4 in the revised Marriage Law takes on the characteristics of a constitutional provision in its principle.

2.The Debate on the Legal Definition of Domestic Violence

The term domestic violence is new to the Chinese society. Prior to 1995 few studies paid attention to the phenomenon of domestic violence and there was little discussion on the meaning of the term.[19] But after 1995, domestic violence was given more public concern. When the revision process for the Marriage Law started, domestic violence was discussed among legislators, law enforcement personnel and scholars.

There was a consensus that the term prohibiting domestic violence should be integrated into the principles of the Marriage Law. The reasons are obvious: First, violence against women was included in the list of Critical Areas of Concern in the “Platform for Action” of the 1995 Fourth World Conference on Women in Beijing. Second, local provisions concerning domestic violence have been adopted in some provinces or cities in China.[20] A general stipulation at the national level is urgently needed to give full legal authority to provisions adopted by local legislatures and to confirm to the international community the Chinese government’s commitment.

But, public perceptions on the difference between violence and abuse are divergent. Two completely different points of view emerged during this period:

The first point of view held that the word violence includes all forms of brutality including abuse occurring in the home. There is an explicit definition of violence against women in the UN documents, e.g. in the 1993 Declaration on the Elimination of Violence against Women (DEVAW), and in the 1995 Beijing Declaration and Platform for Action (1995 Platform for Action). In these international documents, violence against women is defined as ”…any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, whether occurring in public or private life” (DEVAW Article 1,1995 Platform for Action point 113). Therefore, many argued that the term domestic violence in the Chinese marriage law should be conceptualized according to this definition. Accordingly, the word violence should also include the meaning of the word abuse.

The second point of view was that the word violence and the word abuse had their own specific meanings: violence is physical abuse, using physical means to cause physical harm, while abuse refers to a wider area of behavior including verbal and visual acts which have consequences other than physical. So, they should be stipulated separately in the law.

The legislature finally adopted the second opinion; prohibiting domestic violence and prohibiting abuse among the family members are laid down in the revised Marriage Law. As mentioned above, the prohibition of domestic violence and of abuse of family members are included in a basic principle in Chapter 1, Article 3 (2) together with the prohibition of bigamy. Even so, the debate on this issue has continued and it has become one of the focal research topics in Chinese academic circles. However, the latest judicial interpretation makes this issue somewhat clearer. It said(says) that the term domestic violence in the Marriage Law “refers to any act that causes physical, psychological and other kinds of harm to other family members by means of battering, binding, forcible restriction to the physical freedom or other means. And frequent or persistent acts of domestic violence constitutes abuse.” [21] It is a broader legal explanation and provides a better chance for women victims to seek legal remedies. The term other kinds of harm in this judicial interpretation can be understood to include sexual harm.

3.Joint Ownership of Prenuptial Property

According to the 1993 interpretation of the Supreme People’s Court, property brought to the marriage by either party becomes jointly owned property after a certain number of years of marriage.[22] This kind of joint property was called ”transferred joint property” by the Chinese legal experts because there were also other kinds of joint property in this judicial interpretation. The latter was called ”statutory joint property” which included items acquired during the marriage by one or both parties. These items were: (1) income and purchased items; (2) inheritance and gifts; (3) profits from intellectual property rights; (4) profits from one of the parties’ means of production; (5) rights to recover a debt, (6) other property lawfully acquired.[23] [CFW1]

The same provision was also included in the draft revision of the Marriage Law. It was treated as a provision that should be applied to divide joint possessions of the husband and wife at the time of divorce. There were two main views on this draft provision during the consultation period:

People who supported the provision thought that the value of women’s contribution to the marriage, through keeping the house and producing children, should be treated as a financial asset like any other. It would be unfair to women if the law did not recognize the importance of this contribution as a form of “property” brought to the marriage. Furthermore, recognizing this kind of transfer of ownership would make it easier to divide conjugal property at the time of divorce.

People who opposed the provision accepted that the value of a woman’s (unpaid) work in the home and her producing and rearing of children should be recognized. They only argued that this contribution could be recognized in other ways, for instance by stipulating the woman’s right to remain in the family home until she remarries or acquires another home of her own, and the right to receive financial support from the ex-spouse. They did not accept that it was necessary or appropriate to provide for joint ownership of all property brought to the marriage in order to protect women’s interests, because such a provision would not correspond with the basic principles of civil law concerning the acquisition of ownership. Moreover, if it became law, it would render null and void the provision that property acquired before marriage by one party remains the sole property of that party. And it would oblige a man and a woman who intend to marry to make a prenuptial agreement about the future ownership of their personal property. It was feared that by doing so, the mutual affection would be affected to some extent, as many Chinese people still could not accept the prenuptial property agreement.[24]

In the end, this provision of the 1993 judicial interpretation was not incorporated into the revised Marriage Law. Now, Article 42 states that: “If, at the time of divorce, one party has difficulties supporting herself or himself, the other party shall render appropriate help from his or her personal property such as housing.” The latest judicial interpretation further emphasizes that a husband’s or wife’s separate property pursuant to Article 18 cannot, without the couple’s written agreement, be transferred into the couple’s joint property even if they have been married for many years.[25] These new rules concerning the ownership of a couple’s property highlight the protection of private property, especially the strengthening of the weaker party’s (mainly women) protection by the provisions mentioned above.

4.The Legal Criteria for Divorce in a Court of Law

The Marriage Law of 1980 stipulated two different procedures for applying for a divorce. These have not been changed in the 2001 revision. The first is an administrative procedure and it is followed when the husband and wife both want a divorce and they have reached an agreement for the care of children and for the disposition of conjugal property. In this case, the divorce certificates are issued in the marriage registration office (Article 24). The second procedure involves judicial proceedings and is followed when only one party wants a divorce, or when the two parties have not been able to make agreements with regard to care of children and division of property (Article 25, para.1). In dealing with a divorce case, the People’s Court should mediate between the parties. Divorce should be granted if mediation fails because mutual affection no longer exists (Article 25, para.2). It was generally thought that this provision represented the basic criteria in dealing with applications for divorce in a court of law.

Yet, some legal experts suggested that we should use the expression irretrievable breakdown of the marriage instead of irretrievable breakdown of mutual affection between the couples, because the law seeks to regulate social relationships rather than private feelings between two persons including those of mutual affection. The experts further pointed out that this provision increased the uncertainties about the application of the law. As a matter of fact, to erase the uncertainties of the application of the law, the Supreme People’s Court issued an interpretation on this issue in 1989.[26] It contains examples of 14 circumstances relevant in the determination of whether or not mutual affection is irretrievably broken down. The legal experts suggested that this judicial interpretation should be transformed into legal provisions in order to increase its legal authority, to help judges carry out the law properly and to allow the public to understand it more easily.

Amendments have also been made to Article 32 of the revised Marriage Law. But the basic legal criteria in dealing with applications for divorce in a court remain as before. However, below this provision, five circumstances were added that are intended to guide the application of this criterion in the court’s consideration of applications for divorce. These circumstances are:

1) Bigamy or a married person cohabiting with a third party;

2) Domestic violence or maltreatment and desertion of one family member by another;

3) Bad habits of gambling or drug addiction that remain incorrigible despite repeated admonition;

4) Separation caused by incompatibility, which lasts two full years;

5) Any other circumstances causing alienation of mutual affection.

These five new circumstances are not the same as those of the 1989 judicial interpretation. This is because many legal experts criticized that the circumstances 1, 3, 4, and 6 in that judicial interpretation did not belong to the grounds upon which a judge could grant divorce.[27] These were seen as an erroneous mix-up of pre-marriage and post-marriage facts, and of the requirements for a valid marriage and for a divorce application. Finally, the above circumstances have been included in the grounds for annulment. For example, article 10 in the revised Marriage Law states that if, before marriage, one party is suffering from a disease regarded by medical science as rendering a person unfit for marriage and after marriage a cure is not effected, the marriage will be annulled. With regard to bigamy, this is a statutory circumstance for divorce as well as for void marriage. In other words, bigamy constitutes a circumstance for divorce for a person’s first marriage and it is also a statutory circumstance for void marriage for a second marriage. That is, the revised Marriage Law recognizes both of these circumstances (Article 10, para.1; Article 32, para.1).

Nevertheless, the above new provisions still led to a debate. Some people worried that it would restrict the access to divorce. They argued that these five circumstances would in practice make up the only grounds for divorce, and that only if and when a couple found themselves in one of these specified situations would they have the right to petition for divorce. Legal experts did not agree with this opinion and thought that it was based on a misunderstanding of the law. They explained that the provision served only to incorporate into the law the legal criteria used in court to determine applications for divorce. It sets out the guiding principles to be applied by judges in hearing cases. In fact, there is no difference between the Marriage Law of 1980 and the revised Marriage Law from 2001 on freedom to divorce. Any couple can suspend their marriage for their own reasons, independent of how long they have lived apart or of other above-mentioned legal grounds; there are no restrictions in this respect.

The Protection of Women’s Rights and Interests

The protection of women’s lawful rights and interests, as one of the principles laid down in the Chinese Marriage Law, is also specified through a constitutional principle.[28]

In fact, this constitutional principle has been embodied into many other Chinese laws or acts, e.g. the Law on Protection of Women’s Rights and Interests in 1992, the Law on Protection of Mothers’ and Infants’ Health in 1994, and the Regulation on Protection of Female Workers. Each of them governs women’s issues in different fields and is designed to give special protection of women’s rights and interests. Before the 1992 Law on Protection of Women’s Rights and Interests was adopted, the Marriage Law was the most important law protecting women’s rights in China. The Marriage Law focuses on protecting women’s rights and interests in marriage and family relations and aims at accomplishing “de facto“ equality between men and women in the family sphere. The main reason is that China was a patriarchal society for thousands of years, with deep traditional roots based on the Confucian concepts of family relations.[29] Women were discriminated against in many aspects, like arranged marriages, concubinage, foot binding and the duty of strict obedience to husbands and their family members. Liberation of women from the bondage of patriarchal marriage and family system, and promulgation of more modern laws became one of the targets after the founding of the PRC in 1949. This can also be deemed as the main reason why the very first law adopted after the founding of PRC was the 1950 Marriage Law.

After more than half a century, Chinese women have obtained higher status both in society and in the family than in the past, nevertheless, legal protection is necessary and fundamental for women to completely enjoy equal status with men. Taking affirmative legal measures to effectively protect women’s rights against infringement is still needed, and this is because de facto equality has not been accomplished. As mentioned above, forced marriage, bigamy, domestic violence and so on are widespread. Hence, the protection of women’s rights and interests is an important supplement to the principle of equality between men and women.

Based on the law of 1980, the revised Marriage Law further strengthens the protection of women’s rights and interests. Many aspects of the revised Marriage Law are directly connected with this issue.

1.Protection of a Wife’s Personal Rights by Prohibiting Domestic Violence

Article 3 of the revised Marriage Law proclaims that it is illegal for a husband to hit his wife. It is the first time in China that the prohibition of domestic violence is written explicitly into the legislation. Violence occurring in the family used to be regarded as family matters or private affairs in which the public authorities should not intervene. Perhaps, two proverbs may reflect vividly the traditional ideas: “A wife is like a horse, bought to be ridden and whipped at will”; and “Even an upright official finds it is hard to settle a family quarrel”. Such stereotyping of the role of women is pervasive among Chinese people and even affects the implementation of the law protecting women’s rights to life, to health and to liberty and security of the person.[30]

In order to ensure the Chinese government’s guarantee to the international community and to improve equal, harmonious and civilized marriage and family relations, the prohibition of domestic violence has become an important principle in the revised Marriage Law. It is also a statutory circumstance for the judge to make a divorce verdict if mediation fails according to Article 32 of the present Marriage Law. This means that victimized wives can free themselves from violence through dissolving unhappy conjugal relations. Furthermore, the victimized wife enjoys the right to ask for remedy from the violent husband at the time of divorce.

In addition to the above, several provisions are stipulated concerning succor measures and legal responsibility. With regard to succor measures for victims of domestic violence, new provisions are stipulated in following aspects: Firstly, the victims enjoy the right to seek help from the neighborhood or village committee, the work units, or the public security organ (the police). Secondly, the neighborhood or village committee and the two parties’ work units have the duty to dissuade the wrongdoer and offer mediation. The neighborhood or village committee should discourage the violator, and the public security organ should stop the violence and subject the wrongdoer to administrative penalty in accordance with the relevant provisions of the Administrative Punishment Act. Thirdly, the victim may make a private petition to the People’s Court; the public security organ should investigate the case, and the People’s Procuratorate should initiate a public prosecution according to law.[31]

All above provisions have a positive impact for preventing and restricting family violence, and to protect women’s rights. At least, they clarify what and how to do for the victims and for the public authorities and organizations concerned when the violence occurred at home. On the other hand, these legal measures are still too weak and unspecific to help women victims escape from violence swiftly, or to effectively curb violence. In this aspect, other countries’ legal measures like civil restriction orders to the violent person and giving violence alarms to (potential) victims can be used for reference when a new specific act on domestic violence is needed in China. And besides, preventing and restricting domestic violence is not only a matter of the Marriage Law, but involves many other laws and acts, such as the Criminal law, the Criminal Procedure Law, the Civil Procedure Law and the Administrative Punishment Act. These laws are interdependent and indivisible in terms of preventing and restricting domestic violence. Nevertheless, the Marriage Law is a good beginning of fighting domestic violence in China, though of course, there is still a long way to go.

2.Protection of a Wife’s Property Rights at the Time of Divorce

There is a common situation in China and other countries, that is, divorced women are easily caught in an economic plight, called “the feminization of poverty” by many western scholars.[32] In order to avoid this kind of situation, the Chinese Marriage Law takes special protective measures to keep women’s economic condition as before the divorce. Property division and maintenance are both necessary consequences following the dissolution of marriage. Thus, a need for special measures to protect women is embodied in these two aspects.

Property division refers to the dividing-up and distribution of the parties’ property built up between them during their marriage. Comparing the Marriage Law of 1980 with the law of 1950, a Chinese legal scholar pointed out that the protection of women’s property has been weakened.[33] Yet, caring for the rights and interests of wives and children has been an explicit principle for judges when making judgments concerning the division of joint conjugal property. This principle is preserved after the revision the Marriage Law in 2001 (Article 39). It is still a supplement of the basic principle, which is that there should be an equal division of the conjugal estate and other assets acquired during the course of the marriage. Thus, this is indeed a special protection of the wife’s property interests considering the gap between husband and wife in real economic conditions. And it is similar to the “community of property” system adopted in certain common law jurisdictions like the USA, Canada and New Zealand.[34] As for the actual division ratio, this will be decided by the judge according to the specific situation.

Maintenance refers to the financial support to the weaker party at the time of divorce. Under the Marriage Law of 1980, “appropriate financial support shall be rendered by the financially stronger party if one party has difficulty in support himself or herself. If they fail to reach an agreement, the people’s court shall make a judgment” (Article 33). This rule has two advantages: One is to provide practical assistance to the financially weaker party; the other is to eliminate her or his economic concerns over the question of divorce and thereby ensure true freedom of divorce. As has been discussed, this provision is a little amended, in that it renders appropriate help in the question of housing arrangements. It actually means that one party may continue to live in the other party’s house (the right of exploitation) or obtain partial ownership of the house, but this depends on the other party’s will.[35]

Apart from the above measures, it is still necessary to mention a third protective measure for women. It is about one party’s right to ask for financial remedy at the time of divorce. This financial remedy is based on the following two requisitions: First, every couple has a written property agreement stating that the property acquired during their marriage is in the two parties’ separate possession. Secondly, if one party has performed more duties in rearing their children, looking after their elders and assisting the other party in work during their marriage, the other party shall offer economic remedy to her or him (Article 40). This new provision actually recognizes the value of housework. It is beneficial for a housewife to get monetary return from the husband when their marriage breaks down. Such a provision is not only fair to women, but also reflects the function of upholding and protecting the weaker party of the law. Furthermore, it shows that the public notion concerning the value of housework has changed a lot in China. However, this provision can only be applied to separate property made by two parties, not including joint property between a couple.

3.Protection of a Wife’s Interests by Limiting Husband’s Right to Divorce

Women are usually the victims in divorce suits, and they bear the burden of pregnancy and

child rearing. Under such circumstances it is necessary for women and children to obtain special protection. This protection is ensured through the limitation of the husband’s right to divorce in Chinese Marriage Law. The law of 1980 provided that a husband might not apply for divorce under any of the following two circumstances: 1) If the wife was pregnant; or 2) if she had given birth to a child less than one year previous to the divorce application (Article 27). In addition to the Marriage Law, the 1992 Law on Protection of Women’s Rights and Interests stipulates that when a wife has an abortion as required by the family planning program, her husband may not apply for a divorce within six months after the operation (Article 42).

Now, these three circumstances are all included in the revised Marriage Law as Article 34. At the same time, two exceptions are added in these three situations: Where the wife applies for a divorce, or when the court deems it is necessary to accept the divorce application made by the husband. However, the debate on this issue is whether these provisions cover the situation when the pregnancy or childbirth occurs from an extramarital relationship, i.e. whether the wife at fault should get such legal protection or not. Some legal scholars think that this should be an exception; otherwise the law may be too harsh on the husband.[36]

The other issue associated with the limitation of the husband‘s right to divorce concerns the dissolution of a soldier’s marriage. Article 26 of the law of 1980 prescribed that ”If the soldier’s spouse desires a divorce, she or he has to get the soldier’s consent.” Now, this provision has been revised and an exception is added in Article 33, applicable if the soldier commits serious faults. In other words, if the soldier commits serious faults, the other party no longer has to get his or her consent to apply for a divorce. The latest judicial interpretation says that the new exception must be understood in relation to the first three situations in Article 32, paragraph 2 of the revised Marriage Law, and to other circumstances causing irretrievable breakdown of mutual affection.[37] It is thought that in practice this provision still protects women’s rights because soldiers are always men.

Concluding Remarks:

The revision of the Chinese Marriage Law in 2001 was unique and very important in the history of the Chinese Marriage Laws. As presented above, it aimed at remedying weaknesses in the old Chinese marriage and family legal framework. It also sought to tackle the real problems within marriage and family relationships and to make the law more applicable. All above debates on the revision of the Marriage Law reflect dramatic changes in the context of Chinese society since 1978, not only in the economy field, but also within the family sphere where there used to be more taboos and more conservative opinions regarding women’s social position and rights. Some of the new provisions especially focus on the protection of women’s rights and interests. The securing of their rights and interests was done, for example, by introducing provisions prohibiting domestic violence and cohabitation of a married person with a third party, by stipulating the right to ask for financial remedy at the time of divorce, and so on. The legal protection for Chinese women has become more specific and effective than before.

However, this revision is only a partial contribution to the Chinese marriage and family law reform. There are still legal regimes that have not been included in the Marriage Law, such as general stipulation of kinship, guardian relationships, adopted relations, etc. Even the newly added provisions, like the protective measures for victims of domestic violence and those for the financially weaker party at the time of divorce, still show contemporary features for the protection of women’s rights and interests in a period of transition in the Chinese society. With the development of the society, these provisions may be changed again in order to meet new needs of protection for socially weak groups, including women. Accordingly, the Chinese marriage and family law reform is not finished yet. The existing Marriage Law is going to be amended again. This is needed since the Marriage Law will be incorporated into the Civil Code of the People’s Republic of China. This will happen in the next few years.

One last positive comment should be added about the revision of the Chinese Marriage law. The revision process had a high degree of transparency, unlike anything we have seen in China before. It is a hope that future legal revisions will have the same level of transparency and openness.

The first Draft on 3 May 2002, in Oslo

The second Revision on 7 May 2002, in Oslo

The third Revision on 20 June 2002, in Beijing

The last Revision on 7August 2002, in Beijing

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[1] Article 1 of the 1980 Marriage Law states that:” This law is the fundamental code governing marriage and family relations.” This is also confirmed by its contents, even though it is called “Marriage Law”. Besides this, many Chinese jurists suggest that the Chinese Marriage Law should be renamed “ Marriage and Family law” or “ Relatives Law” in order to make its name fit its contents.

[2] It was adopted by the Central People’s Government with 8 chapters and 27 articles, and promulgated on May 1, 1950.

[3] Chen Mingxia, “Introduction and Review to the Key Debates on the Revision of Chinese Marriage Law”, Material for training Senior Judges, The National Judges College, No.6, 2001, p.76. According to China Statistical Yearbook 2001, in the year of 2000, the divorce rate was 19%. China Statistics press, 2001, p.776.

[4] It means that a married man financially supports another woman. They keep up stable sexual relations, and the woman’s situation resembles that of a second wife of that man.

[5] “Revision of the Marriage Law: An Insider Talks About the Key Issues”, Beijing Review No.11, Mar.15, 2001, p.14-15.

[6] Lu Pipi, “New Marriage Law Sparks Concern”, Beijing Review No.11, Mar.15, 2001, p.13.

[7] “Opinions on Division of the Conjugal Property in Divorce Proceedings”, Supreme People’s Court 1993. Pt.6. After 4 years precious means of subsistence becomes joint property; after 8 years residential property and other high value assets of production attains a similar status.

[8] The interpretation of the Supreme People’s Court on adopting the General Principle of Civil Law points out: “The extent of close ties of relatives in the General Principle of the Civil Law includes spouses, parents, children, siblings (including half-blood siblings), grand-parents and grand-children” (pt.12). While Article 86 of the Criminal Procedure Law states that the extent of close ties of relatives covers husband and wife, parents, children and siblings.

[9] At present, guardian relationships and adoptions are regulated in the General Principle of Civil Law and in the Adoption Law respectively. A common thought in Chinese academic circles is that these two legal regimes should be formed into the Marriage and Family Law or into the Relatives Law.

[10] The national agencies included the National Committee of Family Planning, the All-China Women‘ s Federation, the Supreme People’s Court, etc.

[11] Lu Pipi, “New Marriage Law Sparks Concern”, Beijing Review No.11, Mar.15, 2001, p.15.

[12] Article 2 of the 1950 Marriage Law stipulated that: “Bigamy and concubinage shall be prohibited.”

[13] In addition to this, there are other principles in the current marriage law, namely, freedom of marriage, equality between men and women, protection of women, children and old people’s rights and interests, the right and duty to practice family planning. Art. 2.

[14]They are respectively laid down in Article 258 of the Chinese Criminal Law and in an advisory opinion of the Supreme People’s Court in 1994.The Supreme People’s Court said that after 1 February 1994, if a married person or a person who knows the other party is married live together with a third party as husband and wife, they still commit bigamy.

[15] Its full Chinese name is called “ Zhian Guanli Chufa Tiaoli” and was adopted in 1986,revised in1994. This act provides that abusing a family member will be punished with less than 15 days detention or less than 200 Yuan fine or admonishment, if the victim reports to the police. Art. 22.

[16] Article 32 and 46 of the revised Marriage Law; this will be further discussed in the fourth sub-section below.

[17] Li Yin He, speech at the conference on the revising Marriage Law in Beijing in November 2000.

[18] “The Opinions of the Supreme People’s Court on Adopting the Marriage Law of PRC”, entered into force on 27 December 2001, pt. 3.

[19] The 1995 Fourth World Conference on Women in Beijing was a turning point for research on violence against women in Chinese academic circles. After that, a series of research projects on this issue was launched. Tong Xin, “The Production and Reproduction of Unequal Gender Relations - an Analysis of Domestic Violence in China” in Lisa Stearns (ed.), Chinese Women’s Rights, Working Paper 10, NIHR 1999, p.43.

[20] By the end of 2000, the People’s Congresses and Governments at all levels had formulated more than 20 local regulations and policies for preventing and curbing domestic violence. Progress in China’s Human Rights Cause in 2000, Information Office of the State Council.

[21] Supra 18, pt. 1.

[22] Supra note 7.

[23] Supra note 7, pt.2.

[24] Xue Ninglan, “Topics of Common Concern - A Summary of the ‘Symposium on Hot Topics and Difficult Problems in Amending the Marriage Law’ ”, Collection of Women’s Studies, A Bimonthly No.1, 2001, p.63-64.

[25] Supra note 18, pt.19.

[26] “Opinions on Determination of Breakdown of Mutual Affection between Husbands and Wives in Divorce Proceedings”, Supreme People’s Court, 1989, pt. 1-14.

[27] Ibid. pt. 1,3,4,6: One of the parties suffering from disease or impotence, a cure not having been affected; One of the parties suffering from mental disease, a cure not having been affected; Deceit or fraud; Arranged marriage.

[28] The Chinese Constitution stipulates that the state protects women’s rights and interests. Art.48, para.2.

[29]This refers to a well-known feudal moral called “the three obediences and four virtues” (san cong si de), i.e. a woman should obey her father before marriage, her husband after marriage, and her son after the death of her husband, while ”the four virtues” include morality, proper speech, modest manner and diligent work. Both concepts of obedience and virtue were spiritual fetters imposed on women in the Chinese feudal society.

[30] Rights specified in the International Covenant on Civil and Political Rights (ICCPR), Article 6 and 9.

[31] The revised Law, Arts. 43-45.

[32] Xue Ninglan, “Process of Legislation of No-Fault Divorce in U.S.” CASS Journal of Foreign Law, No. 4 1998, p.84.

[33] He Jun Ping, “ Special Protection of Women’s Rights in China” in Clare Mc Glynn (ed.), Legal Feminisms: Theory and Practice, p.175, Newcastle Law School, University of Newcastle Upon Tyne, 1998. The reason for this change may be that Chinese women’s economic situation has improved very much by the 1980s compared to the beginning of the 1950s. Also women’s issues at the time of divorce are different 30 years later, so some provisions must be altered just like in the revised Marriage Law of 2001.

[34] Anthony M.W. Law, “Law of Family, Marriage and Succession”, in Chinese Law, Wang Guiguo and John Mo (eds.), Kluwer Law International Ltd. 1999, p.429.

[35] Supra note 18, pt.27. It provides that at the time of divorce the form of assistance may be the right to residence or ownership.

[36] He Jun Ping, “Special Protection of Women’s Rights in China” in Clare Mc Glynn (ed.), Legal Feminisms: Theory and Practice, p.175, Newcastle Law School, University of Newcastle Upon Tyne, 1998. p.175. Anthony M.W. Law, “Law of Family, Marriage and Succession”, in Chinese Law, Wang Guiguo and John Mo (eds.), Kluwer Law International Ltd. 1999, p.427.

[37] Supra note 18, pt. 23.

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[CFW1] I cannot make sense out of this… What, for example, is meant by ‘the latter’? The former division? If so, you might say: “This contrasts with the former division of property, referred to as “statutory joint property by legal experts.” If that is indeed what you mean…