DIVORCE LAWS IN CHINA
A marriage law enacted when the Communists took power in 1949 gave women the right to choose their husbands and file for divorce but few people even thought about divorce in much of the Mao era as people struggled just to put food on their tables. In the 1950s and 1960s, divorce was considered both immoral and bourgeois by the Communists. A divorce required approval of the state and that was often almost impossible to get. The few people that were granted divorces were often demoted or banished to a rural area.
Marriage laws passed in the 1980s made getting a divorce relatively easy. Couples that wanted a divorce simply had to go to a government office, pay $6, sign some papers and they were divorced. According to Article 27 of the marriage code, "The husband is not allowed to apply for a divorce when his wife is pregnant or within one year after the birth of a child." A woman on the other hand could be granted a divorce even if she is pregnant. Still after that many couples needed permission from their employers to get a divorce. Couples often were forced to stay together because their employers would not grant them permission or the couple felt uncomfortable asking for permission or having their private problems exposed. Even when permission was obtained the couple had to go through a one month waiting period in which the they were supposed to think things over. During that time the couple had to show up for meetings with divorce officials — who tried to talk them out of breaking up — or risk having the whole process voided.
Websites and Sources: Marriage: Wikipedia article Wikipedia ; Chinatown ConnectionChinatown Connection ; Travel China Guide travelchinaguide.com ; Agate Travel warriortours.com : Dating Chinatown Connection Chinatown Connection ; Wedding Wedding Customs chinese-poems.com ; Divorce: Divorces in the 1990s tech.mit.edu ; Marriage and Divorce Laws in China International Family Law ; Foreigners and divorces in China china.org
Changes in the Divorce Laws in China
New divorce laws enacted in the fall of 2003 got rid of the requirement for permission from an employer to get a divorce. Under the new rules if both parties agree to a divorce they simply filled out an application at a government office — answering “no” to the questions on kids and property disputes — provide their marriage certificate, identification cards and photos of themselves. The whole process usually takes about 10 to 20 minutes. The processing fee is less than a dollar. The only question they are asked is, “Is it voluntary?
Not surprisingly divorce rates soared after the laws were changed, In 2004, teh first year after the laws were changed, 1.6 million people were granted divorces, 300,000 more than in 2003. One woman who divorced her husband of 20 years told the Los Angeles Times they would have divorced much earlier had the laws been changed earlier. “We just don’t get along. We’ve thought about it for a long time. The new rules are best. Finally we don’t have to deal with the hassles.”
New divorce laws passed in 2001 gave wives the right to divorce their husbands for abusing them or having extramarital affairs. There are also new laws that require unfaithful partners, especially men with mistresses, to pay their spouses in compensation. One law allows a spouse to claim all family assets if her partner is considered “at fault.”
Housing reform has increase in the divorce rate by creating a rental market which gives unhappy spouses a place to go. An astounding 98 percent of all married couples in Renhe, a village with about 4,000 people near Chongqing in Sichuan Province, got divorced in the mid 2000s. The youngest had just gotten marred and the oldest were in their 90s. The reason they got divorced was to take advantage of a legal loophole that promised a new apartment in a compensation deal to any household — meaning a divorced couple would end up with two apartments while a married cold would only get one. In the end the authorities changed the deal and the compensation package after the mass divorces, making it less advantageous to be single. In the meantime some individuals took advantage of the divorces to find new boyfriends or girlfriends, leaving behind many broken up families.
2021 Chinese Law Requires 30-Day Cooling-Off Period Before Divorce
A new law that was announced in May 2020 and went into effect January 2021 requires couples to take 30-day "cooling off" period to reconsider their decision to divorce after filing. According to NBC News: The new law was s meant to urge couples to reconsider hasty divorces, but the legislation has instead only generated frustration among women who fear that seeking a divorce has now become more difficult. “The feminist writer Xiao Meili called the law a "step backwards" for women and said it limited their rights to freely seek separation from a spouse. “Marriage needs agreement from both people," Xiao told NBC News. "Divorce should be permitted if one person wants it." [Source: Dawn Liu and Adela Suliman and Isabel Wang and Vincent Wan, NBC News, March 27, 2021]
“Ma Danyang, a divorce lawyer based in Beijing, said the new cool-off period had only increased the anxiety among her clients. “Couples finally come to an agreement but then they start to worry the spouse might change their mind during the 30-days," Ma said. “It's quite unfair to women. ... Each day in this waiting period feels like years to them." But for professor He Xin, an expert in China's legal system at Hong Kong University, the introduction of the divorce cool-off period is reasonable, as divorce is such a big decision. "Many countries already have similar laws," he added. Some think the new divorce rules could discourage couples from tying the knot in the first place. “Young women now have more awareness of gender equality," Xiao said. Adding, "many single women can still have a decent life by themselves."
The cooling-off period law was part of a sweeping change to the civil code, covering laws including marriage, adoption and property ownership. According to The Guardian: The law requires couples who are mutually seeking a divorce to wait for 30 days before formalising it. If the couples don’t show up for two appointments between 30 and 60 days after applying, their application is automatically cancelled. The cooling-off period isn’t supposed to apply to those divorces involving domestic violence, but several cases of violence or murder have raised questions about the reality of this in practice.[Source: Helen Davidson, The Guardian, May 18, 2021]
Elsie Chen and Sui-Lee Wee wrote in the New York Times: The Chinese government has grown increasingly concerned that more wedded couples were acting hastily to get divorced. “Some couples would fight in the morning and divorce in the afternoon,” Long Jun, an expert who worked to include the rule in the country’s new civil code, said in an interview with the official Legal Daily newspaper. “In order to reduce this phenomenon, the civil code was designed to address this in a systemic way.” [Source: Elsie Chen and Sui-Lee Wee, New York Times, February 26, 2021]
Problems with the 30-Day Cooling-Off Period Divorce Law
Elsie Chen and Sui-Lee Wee wrote in the New York Times: “Mandated waiting periods for divorces — to allow for reflection, reconciliation, the organization of finances or discussions about custody — are not unusual in many countries. Most US states require waiting periods of between 30 and 60 days before filing. Maryland requires a full year. But in China, the move was met with skepticism and concern, with the hashtag #OpposeCoolingOffPeriod# generating 81,000 comments on Weibo, a popular social media website. People felt the government was overreaching into their personal lives. “We have seen enough evidence suggesting that even if you make divorce harder and you set up more hurdles, if people are not happy with their marriage, they will find ways to get out,” said Ke Li, an assistant professor at the John Jay College of Criminal Justice in New York who has studied divorce litigation in China for 15 years. [Source: Elsie Chen and Sui-Lee Wee, New York Times, February 26, 2021]
“Women’s rights activists say the waiting period could further disadvantage stay-at-home mothers who often have no independent income to pay for a legal fight. For those urgently seeking a dissolution, the order to wait could complicate the legal process. Even after they have completed the wait, couples would need to make another appointment to finalize the divorce. The rule also grants either spouse the power to retract the divorce application if they disagree, which could further endanger victims of domestic violence, activists have said. The government said that in such cases, victims could approach a court to dissolve their marriage.
The cooling-off law is said to make exceptions in the case of domestic violence. But The South China Morning Post reported that lawyers said that in reality, it will further complicate things for domestic violence victims. “Men can decide whether they want to divorce or retract their application. If a woman wants to and the man doesn't, the woman will then have to sue, hiring a lawyer at great personal and financial cost. Many women — particularly full-time housewives — aren't in a position to do this," Zhong Wen, a divorce lawyer based in the Sichuan province, said. China, he added, doesn't have a strong network of domestic violence shelters and resources, meaning that even if a woman does manage to get away from her abusive spouse she may have nowhere to go. [Source: Julie Gerstein, Business Insider, February 15, 2021]
Rush to Beat 30-Day Cooling-Off Period Divorce Law
After the 30-day "cooling off" divorce law was announced there was a huge the rush to beat the new restrictions. More than 1 million couples requested a divorce in the last three months of 2020— a 13 percent increase on the same period in 2019 — before law took effect according to data from the Civil Affairs Bureau. [Source: Dawn Liu and Adela Suliman and Isabel Wang and Vincent Wan, NBC News, March 27, 2021]
Elsie Chen and Sui-Lee Wee wrote in the New York Times: In December 2020, Emma Shi desperately needed an appointment at the civil affairs bureau in Shanghai, but could not get one. She scoured the internet to find someone who could help, quickly. Her request: Help me obtain a divorce within a day. Ms. Shi, a 38-year-old engineer, was trying to get ahead of a Chinese government rule that from Jan. 1, couples seeking a divorce must first wait 30 days. Ms. Shi said that forcing unhappy couples to stay married would only lead to more fighting. “To anyone, this would be very unbearable,” she said. “The relationship is already broken.” [Source: Elsie Chen and Sui-Lee Wee, New York Times, February 26, 2021]
Ms. Shi, the engineer, just barely made the deadline. She said she and her husband had agreed to the divorce after she discovered in December that he had been cheating on her. On Dec. 30, she found a fixer on Xianyu, an app for trading secondhand items, who promised to closely monitor the civil affairs bureau’s website for any slots that might free up. She paid him $50. That same evening, Ms. Shi got an appointment — and her divorce came through the next morning. “I’m very grateful,” she said. In her view, she said, “it is marriage that needs a cooling-off period,” not divorce.
“For many, the rush to get divorced before the rule took effect meant that in cities like Shanghai, Guangzhou and Shenzhen, residents sometimes had to wait up to a month for an appointment. Some described going to unusual lengths to beat the crowd. In Guangzhou, Li Sisi, the 28-year-old owner of a cosmetics shop on the e-commerce platform Taobao, said that for several nights in September, she stayed up until midnight just to wait for the Guangzhou civil affairs bureau to release appointment slots on its website.
“Ms. Li eventually secured a slot in October, but her husband couldn’t make it. She tried again and was finally able to dissolve the marriage on Dec. 21. Ms. Li said she had decided to divorce because her marriage, which was long-distance, was leaving her unhappy. She has a 3-year-old daughter but said she would not stay married just for the sake of her child, unlike many parents in earlier generations. “This generation has spiritual needs,” she said. “Since I want a divorce,” she added, “one more day and one more minute of being together is all suffering for me.”
China’s Divorce Rate Drops 70 Percent after ‘Cooling Off’ Law
The number of divorces in China dropped more than 70 percent in the first three months of 2021, after law forcing a “cooling-off period” for couples came into effect. The Guardian reported: According to data published by the ministry of civil affairs, 296,000 divorces were registered during the first three months of 2021, down from 1.05 million in the previous quarter, and 1.06 million in the same time period in 2019. [Source: Helen Davidson, The Guardian, May 18, 2021]
“The new data also drew criticism, with online commenters querying whether the rates were down because people changed their minds or because the process had been made so difficult, noting reported struggles to get divorce appointments before the time ran out. In February Chinese media reported fully booked appointment slots in Shenzhen, Shanghai and other cities, with some being sold by scalpers. “If you try all means to obstruct it, of course it dropped. Anyway, there’s no statistic on how much the pain has increased,” said one person on Weibo. Marriage is not necessary for happiness, but divorce must be for happiness. This data can only show that 70% of people have lost the opportunity to pursue happiness,” said another. Observers said more data was needed to draw further conclusions, noting variable rates in different locations, and China’s economic rebound improving livelihoods and relationships.
Describing one woman who filed for divorce after the 30-day law went into effect, Elsie Chen and Sui-Lee Wee wrote in the New York Times:““Shen Jinjin, a 34-year-old employee of an insurance company, has been married for over three years to a man who she says is verbally abusive to her and her parents. In January, she decided to leave him. Ms. Shen, who lives in the southern city of Zhangzhou, said she believed that her husband’s conduct amounted to domestic violence. But she had taken her friends’ advice and pursued a divorce instead of suing him, a process that would have taken longer. “Ms. Shen was expecting to be granted the divorce on Saturday. She described the wait as a “real torment,” adding that she was most worried that her husband would change his mind. “I’m under a lot of pressure,” Ms. Shen said. “I don’t know what kind of harm he could inflict on me.”[Source: Elsie Chen and Sui-Lee Wee, New York Times, February 26, 2021]
Chinese Divorce Court Ordered a Man to Pay His Ex-wife $7,700 for Housework
Spouses in China who do the majority of housework are now entitled to ask for compensation for their unpaid labor in a divorce. In February 2021, a Beijing court created a major brouhaha national when it ruled that a woman should receive financial compensation — US$7,700 — for housework she did during her five-year marriage. The court ruling follows the passing of a law that that law that went into effect in January 2021. [Source: Katie Warren, Business Insider, February 24, 2021]
Katie Warren wrote in Business Insider: The 2021 marriage law includes a clause stating that the spouse who spends more time raising the children and doing housework in a marriage is entitled to ask for compensation for that labor in a divorce. The Beijing man who requested the divorce, identified in court documents by his last name Chen, met his wife, whose last name is Wang, in 2010, according to the South China Morning Post. The couple married in 2015 but started living separately in 2018, with their son living with Wang. In 2020, Chen filed for divorce.
“In response, the wife asked for a division of property and compensation for housework and childcare, saying Chen wasn't involved in housework or raising their son. She also said her husband had cheated on her. “In granting the divorce, the Beijing court gave the mother, Wang, custody of the couple's son and ordered Chen to pay alimony of about $300 per month. The court also ordered Chen to pay Wang a one-time payment of about $7,700 for the housework. The judge presiding over the case told reporters that while splitting a couple's assets in a divorce usually involved tangible assets, "housework constitutes intangible property value," according to the BBC.
“One divorce attorney in China said the amount Chen paid his ex-wife was too low. “Those who do housework are devalued in a marriage, with the most obvious effect being their survival skills in society and their professional skills will probably decrease," Zhong Wen, a divorce attorney in China's Sichuan province, told the Post.
Divorce Quiz in China: High Scorers Denied Divorce
In 2017, some divorce registration offices in China started requiring couples to take a "marriage and family exam" before they were granted a divorce. The exam asks questions like "What responsibilities have you fulfilled to your family, and what do you think have you done well or not well?" In one case, a couple was denied a divorce because they scored too highly on the exam. [Source: Katie Warren, Business Insider, February 24, 2021]
Tiffany May wrote in the New York Times: “In some parts of China, married couples seeking to split up have been asked to take a quiz issued by the local authorities. The more they knew about each other — including a spouse’s birthday or favorite food — the less likely they were to have the divorce immediately approved. The quizzes, issued in at least two provinces since 2017 follow the format of a typical three-part school exam: fill-in-the-blank, short answer and an essay. Questions include the mundane — “When is your anniversary?” — and the philosophical: “Have you fulfilled your responsibility to your family?” [Source: Tiffany May, New York Times, May 30, 2018]
“The quizzes — 15 questions, scored on a scale of 100 points — were developed as a way to prevent “impulse divorces,” Liu Chunling, an official in Lianyungang, a city in Jiangsu Province, told the Yangtse Late News. He said the authorities considered a score of 60 points or higher to mean “room for recovery,” and those couples were encouraged to work on their marriages. “Through the guidance of the questions, couples can reminisce on the moments of their relationship and reflect on their familial roles and responsibilities,” Mr. Liu, who oversees Lianyungang’s civil marriage registry, told the newspaper. Mr. Liu said the quizzes were meant only to be a starting point, not the deciding factor in whether a couple can split up. But at least one couple’s high score resulted in the authorities’ preventing their divorce in another province last year.
“A court in Nibin, a small city in Sichuan Province, refused to grant the couple a divorce in September after citing their stellar test scores, according to local news outlets. Experts said the state’s focus on preventing divorce stems from a Confucian belief that a stable society is made up of complete families. “Only through thousands of harmonious family units can an entire society achieve harmony,” said Mr. Liu, the Lianyungang official.
Chinese internet users were quick to criticize the divorce quizzes after a copy of Lianyungang’s was posted on Weibo, a popular microblogging site, by the city’s Civic Affairs Bureau. “So if you remember your wedding anniversary you can’t divorce?” one commenter wrote. “Divorce isn’t a case of amnesia.” “They are adults and they have the right to divorce,” another Weibo user wrote. “Isn’t this an interference in domestic affairs?” Officials in Lianyungang have pushed back against the criticism, saying that taking the quiz was voluntary. “The main objective is to let the couple consider this rationally and to treat it seriously,” the bureau said on Weibo in response to the most popular online comments.
China Cracks Down on Fake Real Estate Divorces
Some divorces in China are shams that take advantage of real estate laws in some cities that limit the number of properties a married couple can own. By legally divorcing, a couple can buy more real estate, a way to make large profits in some of the world’s most expensive cities. Some places are trying to reign in this practice. In January 2021, Shanghai introduced policies to cool the local real estate market that included a measure designed to plug a loophole long exploited by buyers using fake divorces to obtain more properties or mortgages.
“With the new policy, Shanghai follows big cities including Shenzhen and Hangzhou to crack down on housing speculation via fake divorces since 2018,” Pan Hao, a property analyst at KE Holdings Inc., told Bloomberg. [Source: Bloomberg News, January 22, 2021]
Bloomberg reported: “As most Chinese cities limit home-buying demand by capping the number of properties a family can own, divorce becomes a way to bypass the restriction. In Shanghai, local families are allowed to own two homes. Under the new rule, the number of homes owned by people who have been divorced for less than three years will be counted based on the total they had when they were still married.
Child Custody Laws in China
Natalie Thomas of Reuters wrote: “Under Chinese law, parents are rarely granted joint legal custody, as is the case in some countries where both parents share the responsibility of raising the child after a divorce. Instead judges give one parent “direct custody”, often preferring to maintain the status quo living arrangement for a child between two- and ten-years-old, some lawyers say. [Source: Natalie Thomas, Reuters, December 29, 2016]
Lawyers in China “say judges tend to favor the parent who has physical possession of the child, creating an incentive for a father or mother to take their child to gain an advantage in court. There are currently no laws against one parent taking sole possession of a child against the wishes of the other parent, lawyers say, reflecting a traditional view that conflicts between family members are considered private matters.
While official data is not publicly available, Yan Jun, a judge in Beijing’s Haidian court, estimates that children are taken from spouses in 60 percent of cases where both parents are seeking custody. The data tells us that divorce cases where husbands and wives snatch children from each other are by no means in the minority,” Yan wrote in an article posted on the court’s website in March. The Supreme People’s Court, China’ highest court, declined to comment on specific cases when contacted by Reuters, but it said “maximizing benefit to the child is the basic principle by which custody decisions are made.”
Even when judges rule in their favor, some mothers complain about a lack of enforcement and sometimes take matters into their own hands. One mother, who did not want to be named because her dealings the court are ongoing, said she hired a private detective who found her son living under a fake name with an aunt of her ex-husband in a northern city in China. The court had awarded her custody but when she complained months later that the order had not been enforced, a court official was blunt. “She told me ‘don’t just depend on the courts. Are you working hard enough yourself or are you just depending on us to get your child back?” Reuters was unable to independently verify her account.
Aggressive Child Custody Tactics in China
Natalie Thomas of Reuters wrote: A lawyer at a Beijing family law firm, who declined to be identified, said child snatching often takes place before divorce proceedings commence, by which point the parent can argue the child has a stable living environment with them. [Source: Natalie Thomas, Reuters, December 29, 2016]
“Dai Xiaolei last saw her son in 2014 when he was 17 months old and living with her Chinese in-laws outside the capital Beijing. Her marriage was crumbling and as relations with her husband’s family worsened, they blocked her from entering the house and taking him back to her home in Beijing, she said. “The last time I saw my son was at the end of this alley. It’s almost like a fortress,” Dai, 37, said outside the home of her former in-laws in Baoding, 156 km from Beijing. Dai said the family has prevented her in all subsequent attempts to see her son. Reuters was unable to independently verify her account. Her husband, Liu Jie, filed for divorce, arguing that their marriage had fallen apart due to “conflicts in character, ideas and living habits,” according to the court ruling seen by Reuters.
“Dai pushed for custody, but in April a judge dissolved the marriage and ruled that it was best for the boy’s “healthy physical and mental growth” to be raised by his father, the court ruling said. Liu Jie, a movie stunt coordinator, and his family declined to comment when contacted by Reuters. Dai appealed the April ruling to get custody of her son and lost. In its rejection of the appeal issued on Nov. 30, the court said the child’s living environment was relatively stable and any change to this would not be beneficial to his upbringing.
“As China’s divorce rates rise, so too have calls by lawyers for an application of a new domestic violence law that would clamp down on aggressive tactics used by some parents to take and retain possession of children to gain the upper hand in custody battles. Li Ying, a Beijing-based lawyer and advocate for parental rights, said aggressive snatching tactics should be prosecuted under China’s new domestic violence law enacted in March 2016. Under these laws, beatings, frequent verbal abuse, and threatening behavior are considered forms of domestic violence. Some family law lawyers argue that preventing a child from seeing their parent is restricting the child’s physical liberty, while preventing a parent from seeing her child could be considered a form of psychological abuse.
China and the Hague Convention
China is not a member of the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is the main international agreement that covers international parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country. Japan and many other countries are also not members.
Under Chinese law, there are no legal provisions specifically addressing international parental child abduction or legal assistance available for those involved. Free legal assistance is available to Chinese citizens in civil and criminal proceedings, with the scope of cases and eligibility for the aid provided in the nationally applicable Regulations of Legal Aid. Parental child abduction is not a criminal offense. In addition to the requirement of economic difficulty in hiring a representative, the Regulations limit family law cases for which a party may apply for legal aid to disputes over alimony for parents or spouses, and child support payments. Therefore, it is unlikely that individuals involved in international parental child abduction would be eligible for legal aid. [Source: Library of Congress Law Library, Legal Legal Reports, 2015]
Text Sources: New York Times, Washington Post, Los Angeles Times, Times of London, National Geographic, The New Yorker, Time, Newsweek, Reuters, AP, Lonely Planet Guides, Compton’s Encyclopedia and various books and other publications.
Last updated September 2021