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The Changing Marriage Law of China- Divorce Law

Time:2014-03-13 Hit:165


The Changing Marriage Law of China- Divorce Law


The issuance of divorce law and regulations of China has also been subject to very significant legal change over the past decade. The statistical evidence points to a considerable increase in the divorce rate during the post-Mao period as a whole - from an initial figure of 3 percent to 20 percent in some areas by the late 1990s. This is the result of a number of different causes, but several stand out as especially important: a relaxation in the grounds for divorce in contested applications, a reduced willingness on the part of young people to endure unhappy marriages in China's increasingly open and economically developed society, and the emergence of a more professional and younger judiciary. Freedom of divorce, especially for women, appears at long last to be becoming a reality in socialist China. Nevertheless, the 2001 revisions to the Marriage Law continue to reflect a moralistic and judgmental approach to a contested divorce. This approach infused the 1989 Supreme People's Court Opinions on divorce, and the 2001 revisions have now put in place a system that deals more effectively with issues of fault and compensation for blameworthy conduct. In particular, compensation may be sought by a "non-faulting party" if matrimonial breakdown results from bigamy, cohabitation with a third party, domestic violence, or maltreatment and desertion.25 Another highly significant development has been a growth in concern with the issue of family violence. Economic restructuring, international pressure (in particular from CED AW) and an increased tendency for husbands to take revenge against an unfaithful spouse27 are among the factors which encouraged the introduction, at Article 43 of the revised China Marriage Law, of new provisions which attempt to provide better protection for women victims. Moreover, the 2001 Interpretation offers a definition of domestic violence for the first time in national law, and includes within that definition beating, tying-up, maiming and restricting personal freedom (for example by the use of force) such that mental or physical harm results. Maltreatment, however, must be "persistent" and "frequent" before it can be characterized as domestic violence. Another significant limitation is that, according to Article 3 of the 2001 Interpretation, a victim of domestic violence may not bring suit under Article 4 of the revised China Marriage Law, even though that Article encourages mutual respect and assistance between family members. Women suffering from domestic violence continue to be encouraged to seek intervention from their local people's mediation committee, which is expected to persuade the husband to cease his misconduct. However, in more serious cases the local public security bureau is also expected to intervene and, at the victim's request, may impose administrative sanctions on the husband. In addition, a wife who has suffered domestic violence may bring a private prosecution and both the public security bureau and the procurer are expected to assist her. This shift in the policy and regulatory framework for dealing with domestic violence is significant. Although the processes of mediation and administration sanctioning continue to be emphasized, domestic violence is now characterized as not only a private dispute but also a matter of public concern, and therefore also the concern of criminal law and judicially imposed punishment. As in the debates on concubine, the public-private divide is shifting in order better to protect women.



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