Developments in China's Provisions for Postdivorce Relief in the 21st Century and Suggestions for Their Improvement

Abstract

Since entering the 21st century, China's divorce provisions for postdivorce relief have been substantially modified. Provisions for financial assistance and damages after divorce have been added. Since the 2001 amendments to the Marriage Law of the People's Republic of China, the changes to postdivorce relief show three characteristics: First, a wider range of relief is provided; second, housework is recognized and the homeless after divorce are protected; and third, loyalty to marriage is advocated and the party who commits statutory gross wrongs is obliged to make compensation. We think that some statutory requirements of the current divorce relief measures are so strict that few divorcees, especially women, are relieved with the system. Thus, the legislature should learn from foreign legislative experiences and relax the statutory conditions in accordance with the social reality in China.

Keywords:

• China
• development
• postdivorce relief
• suggestions

Acknowledgments

The divorce relief measures discussed herein refer to those for the Mainland of the People's Republic of China, not including counterparts in Hong Kong, Macao, and Taiwan.

Lei Shi is currently a visiting academic at Oxford University, Oxford, United Kingdom.

Notes

¹Professor Yinan Ma (2005) holds that divorce reliefs are composed of three parts: property division after divorce, divorce support (including financial assistance and economic compensation), and damages. We classify divorce reliefs into economic compensation, financial assistance, and damages in accordance with the current stipulations of the Marriage Law of the People's Republic of China (PRC).

²The statistics come from the Statistical Reports of the Development of Social Services from 1996 to 2000, Ministry of Civil Affairs of the People's Republic of China (http://cws.mca.gov.cn/article/tjbg/, retrieved September 13, 2012).

³With regard to the subjective happiness of a child, those living in first marriage families score high, children living in a single-parent family fall into the second group, and those living in stepparent families and divorced families score lowest on an index of happiness (Acock & Demo, 1994, cited in Li, 2006, pp. 405–406).

⁴In this Interpretation, Articles 1 and 2 clarify some terms in the Revised Marriage Law in 2001, such as “domestic violence,” and “a spouse lives together with others.” In accordance with Article 1 in Interpretation 2001, domestic violence refers to physical violence rather than spiritual abuse and cold violence. Cold violence in Chinese refers to the state of no communication, love, or care in a marriage.

⁵Statistical Communiqué on the 2011 Social Service Development released by the Civil Affairs Ministry, www.sina.com, June 12, 2012, http://news.sina.com.cn/c/2012-06-21/124024634206.shtml. The statistics prior to 2011 come from statistics reports on the website of the Civil Affairs Ministry of the PRC, http://www.mca.gov.cn/article/zwgk/mzyw/201106/20110600161364.shtml.

⁶See Xia (2003). See also Yinan Ma (2005). The statistics in these papers come from a survey carried out in Beijing, Xiamen, Haerbin from April 2001 to December 2002 (G. Wang, 2011). The statistics in this article come from an investigation on divorce cases judged in Haidian District in Beijing, Minxing District in Shanghai, and Nangang District in Haerbin in 2008. Although the empirical research has some imperfections (e.g., the investigation only covered a small time span and the area investigated was limited), without new and more comprehensive empirical research in the domestic academics, we use some statistics in the research.

⁷The appeals of divorce cases judged in the No. 2 Intermediate People's Court in Beijing from May 2001 to December 2002 numbered 1,032. Among them, divorce financial assistance was granted in 76 cases. Of those, only two couples adopted a separate property regime. Moreover, in these two cases, only after they separated did they change their common property regime into a separate property regime. See Marriage and Family Law Research Institute of China Law Society: Completed Report on Problems in Enforcing Marriage Law, 2003, p. 62 (cited by Yinan Ma, 2005).

⁸The statistics come from “Empirical Research on Domestic Violence Prevention in Chongqing,” an interim report of a key project in 2010 at the Southwest University of Political Science and Law (Domestic Violence Legislation and Practice in China Mainland, Hongkong, Macao and Taiwan) directed by Wei Chen Project No. 2010-XZZD01).

⁹See www.admin.ch/ch/e/rs/2/210.en.pdf.

¹⁰Rehabilitation support system refers to postdivorce support aiming at restoring the earning capacity lost during the marriage for one's contribution to the family. See Chen and Cao (2010, p. 33).

¹¹Although only eight states have enacted all or parts of the Uniform Marriage and Divorce Act since 2003, that Act has been the model for other statutory schemes (see Katz, 2003, p. 94).

¹²See http://www.jafbase.fr/docEstEurope/RussianFamilyCode1995.pdf.

¹³See http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5275.

¹⁴For example, in K v. L ([2010] EWCA Civ 125), the husband sexually abused the wife's grandchildren. The Court of Appeal agreed that this entitled the judge to award the husband nothing. In Vaughan v. Vaughan ([2007] 3 FCR 532), the court was particularly willing to take into account the financial misconduct, and “reattribute” the wasted money to the spouse who spent it. However, in some cases, actual domestic violence has not been regarded as relevant unless it is especially serious. Some scholars have criticized the failure of the courts to attach weight to domestic violence in financial cases. See Herring (2011, pp. 230–231).

¹⁵See http://www.jafbase.fr/docEstEurope/RussianFamilyCode1995.pdf

¹⁶Article 73 in Some Provisions of the Supreme People's Court on Evidence in Civil Procedure effective on April 1, 2002, stipulates that where both parties produce contradicting evidence to prove a same fact but neither has enough evidence to rebut the evidence of the other party, the People's Court should determine which evidence is obviously more forceful than the other evidence by taking the case into consideration, and should affirm the evidence that is more forceful.