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Transforming Family Law in Post-Deng China: Marriage, Divorce and Reproduction

Time:2014-03-13 Hit:193

Transforming Family Law in Post-Deng China: Marriage, Divorce and Reproduction

Michael Palmer

The changing family law of china- marriage law:

          The legal framework governing family life has been reformed in order, inter alia, to deal with problems encountered with the regulatory system built up in the 1980s and early 1990s, and to respond to changes taking place in Chinese society.

Two legislative developments are highly significant in recent years.

Firstly, the China Marriage Law was revised in the year 2001, and greater judicial attention then is given to its implementation, especially in relation to divorce. These changes were followed in 2003 by a further revision of the rules governing marriage (and divorce) registration.

          Secondly, a synthesizing, national code of family planning was finally introduced, also in 2001, and then extended in 2002 by State Council Measures on the Administration of Social Upbringing Charges. Other notable developments include the 1998 revision of the China Adoption Law and the continuing evolution of a corpus of social protection law including, in particular, the introduction of a law protecting the rights and interests of the elderly in 1996 and a revision of the 1992 Women's Protection Law in 2005. A number of the changes mentioned above and considered in greater detail below are also related to shifting policies and practices regarding the role of various forms of dispute process - especially "mediation" - in Chinese social life in general and intra-familial disputes in particular. Three specific aspects of family law are focused on marriage, divorce and reproduction. These are the core of PRC "family law." This focus does not accord exactly, however, with the "official" view in China, which regards rules and issues of family planning as largely falling outside family law, so that, for example, even compendia of rules on family law matters intended for judicial practice omit direct reference to legislation relating to reproduction and associated issues. The present article and its predecessor, however, both assume that planned births and population policies and rules are so critical for family life in contemporary China that their inclusion is essential. The current study, therefore, examines developments in this area, as well as in another and related mode of reproduction and recruitment to the family, namely adoption. It thus considers the nature and significance of the legal changes that have taken place in these four dimensions of family law since 1995. While highly important changes have occurred in all four areas, it is probably in the law of divorce that the most significant developments have occurred. The Reforms of 2001 The socio-political contexts within which the two most significant statutory developments since 1995 took place offer a strong contrast. On the one hand, much publicity proceeded and accompanied the revision in 2001 of the Marriage Law 1980, with the often heated debate among those doing the revision, and also a considerable degree of openly expressed controversy over some of the key issues. These included the nature of marriage, the notion of a "relative", and various aspects of divorce including the grounds for divorce, property and custody rights, compensation for morally blameworthy conduct leading to divorce, and the appropriate responses to domestic violence. Within these discussions, it was possible to discern shifting ideas about appropriate boundaries between the public sphere and private life, in particular, the appropriateness of state intervention in family matters. In formal, legal terms this is perhaps best explained by reference to the different legislative tracks that the two developments were apparently assigned. Although both legislative advances were promulgated by the Standing Committee of the National People's Congress, the China Marriage Law revisions took place within a procedural framework clearly informed by some of the reforms encouraging openness and greater public consultation introduced by the 2000 Law on Legislation. In contrast, the family planning code involved a much more restricted approach, with virtually no public deliberation. This lack of openness reflected the politically-sensitive nature of population control, and such conservatism should be borne in mind, for example, when making judgments about the significance of family law in post-Deng China for an emerging civil society. Marriage As indicated in the earlier China Quarterly article, in the PRC marriages are concluded in law by registration, not by celebration. The legal requirement of registration must be fulfilled, but in practice is often ignored by couples and their families, who consider the celebration of marriage in a traditional style more important. This has resulted in various difficulties including, in particular, official treatment of unregistered couple and enforcement of family planning rules. The system of compulsory marriage registration remains in place today, but during the past few years, attempts have been made to respond to pressures of legal practice and social change and to give greater recognition to the view that marriage is a private process. Changes were introduced by, first, the 2001 revision to Chapter 2 of the Marriage Law; secondly, by two Interpretations from the Supreme People's Court on the revised Marriage Law in 2001 and 2003 respectively; thirdly, by the 2003 revision of the rules on the processes of marriage and divorce registration in which a new meaning for "marriage registration" is promoted (symbolically indicated by discarding the term "administration" from the rules' title; and finally, the 2005 revision of the Women's Protection Law. As a result, modifications have been made to the legal conditions of capacity for marriage. Reflecting medical advances in China, leprosy is no longer explicitly characterized as a condition rendering a person unfit for marriage. In addition, difficulties in identifying and dealing with the invalidity of marriage are addressed by provisions in the revised China Marriage Law at Articles 10 and 12. In particular, marriage is characterized as void ab initio if the minimum legal ages of marriage have not been attained, one of the intending spouses is already married, or the proposed marriage falls within the prohibited degrees. Unregistered "marriages" between parties in which at least one of the intending spouses is underage have been a widespread problem in post-Mao China, reflecting not only continued adherence to traditional ideals that regard marriage as a matter of celebration rather than registration but also social pressures for early wedlock in order to commence reproduction. The authorities' response has been increased to impose strict requirements of registration and to limit judicial recognition of unregistered couples as "de facto marriages". However, this restrictive approach, closely associated with family planning policy, was criticized during the debates on the revision of the Marriage Law, and was in particular considered to be inimical to the interests of rural women. As a result, the revised Marriage Law permits retrospective registration: "in the absence of marriage registration, the man and the woman should go through registration procedures." The 2003 revised Marriage Registration Regulations provide at Article 8 for a process of "remedial marriage registration" for the unregistered couples. In addition, the people’s courts have the jurisdiction to deal with cases of a void marriage, and their decisions in such cases are then filed with the relevant marriage registration organs (Article 16 of China Marriage Law). The revised China Marriage Law itself affords little scope for retrospectively legitimating a union as in many cases the problem is that the parties commenced their union when one partner (or both) was underage. In order to deal with this problem, the 2001 Interpretation of China Marriage Law at Article 4 allows for the recognition of unregistered relationship in which one party (or both) was underage: the union may be characterized as one of lawful marriage from the moment when the parties attain the age of capacity to marry. Moreover, when a couple in an unregistered relationship seek a divorce, then the relationship may be characterized as de facto marriage if both parties satisfied the substantive conditions for marriage prior to the promulgation of the Regulations on the Administration of Marriage Registration on 1 February 1994. In cases in which one or both parties only attained the age of capacity to marry subsequent to that date, the couple must register their union before any matrimonial proceedings may commence (Article 5 of China Marriage Law). Nevertheless, the above developments indicate an important shift in official policy on the unregistered couple. Hitherto, the trajectory of change had been increasingly to regard unregistered couples an unlawful cohabitation. There is now some relaxation in this approach, reflecting an official acknowledgement of the predominance in numerous areas of the countryside of customary celebration over legal registration in the conclusion of a marriage. In the process of declaring a marriage void, significantly greater attention is also given to procedural issues. Thus, Article 10 of the revised China Marriage Law not only gives the spouses themselves but also confers on "persons with an interest" the right to apply for a declaration of void marriage in cases of bigamy. Such interested persons include not only close relatives but also "grassroots" organs. Moreover, in considering the validity of marriage following an application under Article 10 of the revised China Marriage Law, mediation may be used by the court only in respect of the distribution of property and custody of children: the decision on the substantive validity of the "marriage" itself must be made by adjudication. In addition, the 2003 Interpretation provides that an application for a declaration of a void marriage, once started, may not be retracted. The court must declare the marriage void if it finds merit in the application (Articles 2 and 3 of China Marriage Law). If there are concurrent suits for a declaration of void marriage and for divorce, the former is given prior consideration by the court (Article 7 of China Marriage Law). A third significant area of development concerns forced marriage. The revised Marriage Law introduces new provisions (in Article 11 of China Marriage Law) that empower a party coerced into marriage to seek abrogation of the marital relationship within one year either from the date of marriage registration or of securing their freedom. Only the coerced party in a marriage may make such an application, according to the 2001 Interpretation of China Marriage Law at Article 10, which characterizes such "marriages" as couple in which one party compels the other "to enter into marriage against her or his will by threatening the intimidated party or close relatives of that party with harm to life, health, reputation, property and so on." This is clearly an important step in strengthening women's rights, although the time limit of one year is rather short for a woman thus coerced to adjust to her new situation and to decide on whether to remain in the forced marriage. Perhaps indicative of the relatively widespread nature of forced marriage, 2003 revised China Marriage Registration Regulations allow marriage registration organs as well as courts to handle applications from those pressed into marriage against their will (Article 9). The petitioner submits the appropriate documentation to a registration official who then considers the facts of the case. If there is sufficient evidence of coercion, and problems concerning child maintenance, property and debts are revolved, the registrar rescinds the marriage and declares the marriage certificate invalid (Article 9). It would seem, however, that no procedures are yet in place for dealing with a customary couple that has been entered into by force. Fourthly, the revised China Marriage Law attempts to deal with growing problems in the "monogamous" nature of marriage. In particular, there has been the reappearance in southern China of the phenomenon of taking concubines. This reflects, inter alia, enhanced wealth in the southern China countryside and the continued popular belief in the importance of maintaining patrilineal descent lines (importance that continues to be indirectly acknowledged officially in family planning regulations, as shown below). In the debates surrounding the revision in 2001 of the China Marriage Law, the All China's Women's Federation pushed hard to make the taking of concubines into a national moral panic, and in this atmosphere, some critics of the practice of concubine argued that the revised Marriage Law should make it a criminal offence. Such arguments were rejected on the ground that the China Marriage Law is essentially civil law, and to criminalize concubine would be to overextend public interest in private matters. However, the General Principles section of the revised marriage code now provides that "cohabitation of a married person with any third party shall be prohibited" (Article 3, para. 2 of China Marriage Law), and concubine is also made a ground for divorce. Nevertheless, concubine does not in itself constitute a crime and the 2003 Interpretation also sets limits on the public response to it: in ordinary cases of cohabitation, the courts may not order the cohabitants to cease living together, and it seems that a man and his concubine in a stable relationship will not be required to terminate their cohabitation unless a complaint is made to the court (Article 1). A fifth notable change is in the procedures for marriage registration. As noted above, the change in name from Regulations on the Administration of Marriage Registration in China promulgated in 1994, to Marriage Registration Regulations of China in 2003 reflected official acceptance of the view that hitherto there has been excessive state interference in married life. The more liberal procedures may also be seen as a response to the declining importance of state-owned enterprises as institutions of social control. The amendments were also a product of a change in official thinking on the "private international law" dimensions of marriage registration, as the 2003 reforms create a unified system in which the parties are not only Chinese citizens but also "compatriots" in Hong Kong, Macau and Taiwan, and foreign parties, thereby ending the hitherto separate regimes for these categories (Article 5). The revised Regulations introduce two further changes. First, the marrying parties must now themselves demonstrate that they have the capacity to marry - assuring the registrar that they are not already married to others nor close consanguine, and so on. Prior to this change, this responsibility was often assumed by work units. Secondly, the policy increasingly imposed in the 1990s requiring intending spouses to undergo pre-marital medical checkups - expressed in robust terms in Article 9 and 10 of the 1994 Regulations - has been abandoned. In part, this reflects the fact that the examination scheme has not worked well. It also reflects an official recognition that marriage and reproduction are not quite the same things. Thus, although the 2003 Regulations no longer require pre-marital medical check-ups, the revised Women's Protection Law of 2005 at Article 51 contains a new provision on pregnancy health care systems that suggests that women will still be encouraged to undergo pre-marital medical check-ups, and certainly prior to attempting pregnancy. Finally, the revised Marriage Law also attempts to deal with the somewhat paradoxical situation that while parental interference in marriage has declined in post-Mao China, the obstruction of parental marriage by adult children - anxious, for example, about the adverse impact of an intended re-marriage on their inheritance rights - has been on the increase.20 As a result, the revised Marriage Law contains a new provision at Article 30 which forbids children from blocking the remarriage of a parent. Moreover, and consistent with welfare policies that continue to define the family as an important unit of care and welfare for the elderly, the same Article stipulates that the remarriage of a parent does not release the children from their obligation to support their parents. This confirms Article 19 of the Elderly Persons Law 1996, which also safeguards the right of the elderly to divide and distribute their own property as they see fit, free from any obstruction from their children or other relatives, including attempts by such kinsfolk to secure the property by force.

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