Introduction to Chinese Legal System

Lecture 8 Family Law

Ying Xia
yingxia@hku.hk
Topics I. Marriage & Divorce

II. Reproduction

III. Gender Equity and LGBT

Rights
I. MARRIAGE & DIVORCE
 Legislative Structure
Marriage Law
• Adopted in 1980, revised in 2001, incorporated into the Civil Code in 2020
• Regulation for the Administration of Marriage Registration (1994; revised in
2003)
• Judicial Interpretations on the 2001 Marriage Law (2001, 2003, 2011); Judicial
Interpretation on the Marriage and Family Book in the Civil Code (2021, 2024)

Succession Law & Adoption Law

Laws on Protection of the Elderly, Minors, and Women; Anti-Domestic

Violence Law
 Marriage Law during the Mao Era

´ PRC’s first Marriage Law (1950)

´ Promotion of gender equality and protection and women and children to

demonstrate a break from the feudalist past and commitment to socialist
ideology

´Explicitly banned bigamy and polygamy (arts 1&2);

´Provided that the husband and wife shall be equal status in their household,
equal right to work, equal right to keep their own names, and equal right to
household property (arts 7, 9, 10, 11).
 Marriage Law during the Mao Era (2)

´ The exclusive power of the state over marriage and divorce

´ Marriage had to be registered with the local government;

´ Divorce was subject to community mediation first before an

application can be filed in court;

´ Neither de facto marriage nor de facto divorce was recognized;

´ “Collective needs of production” would trump the individual interests

of either spouse (art 23).
 Marriage Law (1980)
´ The requirement of compulsory marriage registration

´ Restricted recognition of “de facto marriage” (事实婚姻) in judicial practice

´ The freedom to divorce

´ Breakdown of mutual affection (感情破裂) as a ground for divorce (art 25).

´ Judicial mediation was still used to delay or block divorce applications.

´ The 1989 SPC Guideline specified situations for the courts to find a
“breakdown of mutual affection”.
 Social Responses

´ Concerns over women protection

´ Men would take advantage of the new law to desert their wives;
´ This was a particular concern for marriages contracted during the radical
years of “down to the countryside” movement (上山下乡).
´ Concerns over family instability
´ Economic liberalization would stimulate divorce applications by women.
´ Divorce rate rose from 3 percent at the beginning of the open-up and
reform policy to 20 percent by the late 1990s.
´ In the 1980s, more than two-thirds of the divorce applications were filed
by women.
 Marriage Law (2001)
´ The conservative camp
´ Economic liberalization and the growing commodification of society has resulted
in many family and social problems, such as increased divorce, spousal abuse,
and child neglect;
´ The new marriage law needs to clarify the boundaries of freedom and improve
the balance between law and morality.
´ The liberal camp
´ The solution to those social problems should not be more restrictions on
personal freedom;
´ The new marriage law should go further in the direction of liberalization, such as
to recognize same-sex marriage.
 Codifying Rules on Marriage

´ Art 4: the loyalty obligation (忠实义务)

´ “Husband and wife should be faithful to and respectful of each other; family
members should respect and help one another, and maintain an equal,
harmonious, and civilized family relationship.”
´ Art. 8: remedial registration for unregistered couples
´ 2001 Judicial Interpretation (1): when a couple in an unregistered marriage seek
divorce, the relationship may be characterized as de facto marriage if both
parties satisfied the substantive conditions for marriage.
´ Art. 11: abrogation of forced marriage
´ A party coerced into marriage can seek abrogation of the marital relationship
within one year either from the date of registration or of securing his or her
freedom.
 Codifying Rules on Divorce
´ Freedom to divorce

´ Art. 31: for divorce based on mutual consent, the two parties need to file an
application with the local marriage registration department and show that they
have made proper arrangements regarding martial property and the custody of
children.

´ Art. 32: when mediation is ineffectual, the court should grant a divorce application
in the following situations: 1) bigamy or cohabitation with others; 2) domestic
violence, maltreatment, or desertion of family members; 3) either party is
indulged in gambling, drug-abuse or has other vicious habits; 4) separation for at
least two years due to a lack of mutual affection.
 Codifying Rules on Divorce (2)

´ The principle of protecting the “innocent party” (保护无过错方)

´ Art 46: “in divorce disputes, the innocent spouse is entitled to claim
damages in the following situations: bigamy; cohabitation of the other
spouse with a third person; domestic violence; maltreatment or
desertion of any family member.”
 The 2020 Civil Code

´ Art 1777: adds a mandatory cool-off period of 30 days before granting a

divorce.

´ Art 1776: requires the two parties to show reached consensus rather than
“proper arrangements” on issues such as custody, property, and debt.
´ Art 1779: adds another ground for granting a divorce application: the spouse
have separated for at least a year since the date on which their previous
divorce application was rejected by the court.
 Judicial Practice
´ Institutional objective of courts
´ Maintain social stability
´ Increase the efficiency of decision-making
´ Personal incentives of judges
´ Performance evaluation targets: rates of withdrawl
´ Personal safety concerns
´ Informal (yet common) practices
´ Reject first-attempt divorce petitions
´ Imposition of de facto cooling-off period (before the adoption of the Civil Code)
 Marital Property
´ Marital property regime in pre-2001 era
´ 1980 Marriage Law art 13: Asset acquired during the course of a marriage
should be considered as marital property;
´ 1993 judicial interpretation on handling divorce cases: personal property
may be transformed into common property after eight years of marriage.
´ The 2001 Marriage Law
´ Strengthened individual property protection in response to the accumulation
of personal wealth;
´ Art. 17: defines marital property; ownership of intellectual property;
´ Art. 18: defines individual property;
´ Art. 19: contractual arrangement of individual and marital property.
 Judicial Interpretations (2003 & 2011)
´ Individual ownership of contribution by the family of intending spouses
´ 2003 JI Art. 22
´Parent’s contribution to the purchase of matrimonial property prior to a marriage should
be considered as a personal donation to their own child unless otherwise specified.
´ 2011 JI Art. 7
´When parent’s contribution to the purchase of matrimonial property after a marriage and
the property is registered under the name of that spouse, it should be considered as
that spouse’s individual property.
´When parents of both husband and wife have invested in the purchase of the home,
unless otherwise specified, ownership will be apportioned on basis of parental
investment.
 Underlying Tensions
´ Critique of the liberalization and privatization of marriage
´ Market vs. family
´ Prioritizing the protection of property registration and market transaction over the protection of
common property
´ Individual vs. family
´ Prioritizing the protection of individual property over the protection of common property
´ Reference: Zhao Xiaoli, 中国家庭资本主义化的号角 (2011)
http://m.aisixiang.com/data/39011.html
´ De facto discrimination against women (the lack of recognition for non-financial
contribution to family)
´ Counter-critique
´ Law is and should be responsive to social reality
´ Reference: Liu Liantai, 婚姻法解释(三)动了谁的奶酪 (2011)
https://www.chinacourt.org/article/detail/2011/09/id/462875.shtml
 Domestic Violence
´ The 2001 Marriage Law confirmed domestic violence as a ground for
granting a divorce (arts. 32, 46).
´ The 2001 Judicial Interpretation (1) gave a definition of domestic violence
´ Behavior that results in injurious consequences physically, emotionally, etc.
´ Involves beating, injuring, forcibly restricting one’s personal freedom, etc.
´ The maltreatment must be persistent and frequent.

´ Remedies
´ Local people’s mediation committee
´ Local public security bureau
´ Local court: private prosecution
´ Right to seek compensation in divorce disputes: article 46
´ Right to apply for protection orders: Anti-Domestic Violence Law (2015), articles 23-32
 Domestic Violence: Judicial Practice

´ Lack of interest from public security officers

´ Classifies domestic violence complaints as “family issue” and prefers to use
“persuasion and education” to settle the disputes.
´ Reluctance for family members, friends, or neighbors to intervene
´ The cultural belief in social harmony and family values: “宁拆十座庙, 不破一桩婚”.
´ Both factors have accounted for the difficulty in collecting evidence for
domestic violence claims.
 Domestic Violence: Judicial Practice (2)

´ The determination of domestic violence often relies on judges’ skill

and willingness to actively investigate and collect evidence.
´ When judicial mediation is frequently used to substitute adjudication,
judges tend to deemphasize domestic violence even if there is
sufficient evidence.
´ The rights-based approach in the investigation of domestic violence is
superseded by the need-based focus in mediation.
 Judicial Mediation in Divorce Cases

1,600,000

1,400,000

1,200,000

1,000,000

800,000

600,000

400,000

200,000

0
2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018
Case handled Case mediated

Source: National Bureau of Statistics

II. REPRODUCTION
 Reproduction in Early PRC
´ During the Mao era, China experienced a population explosion, with an
increase from 540 million to 800 million in less than three decades.

´ Mao’s population policy was based on revolutionary legacies and the need
of an agrarian society for more workers, as illustrated by Mao’s statement
of “the greater the number, the greater the strength” (⼈多⼒量⼤).

´ It was projected that with a population of 1.25 billion at the end of 1998,
China must provide for twenty-two percent of the world’s population on only
seven percent of the world’s arable land.
 Reproduction in Early PRC (2)
´ The 1950 Measure on Restricting Abortion by Women Cadre
´ Jointly issued by the Ministry of Health and the Military Commission
´ Restrictions on abortion
´ Termination of pregnancy is allowed only for certain eugenic and therapeutic
circumstances;
´ Women need to obtain consent from her husband, physician, and supervisor at
work.
´ An Essay on the Principle of Population, Ma Yinchu (1957)
´ Pointed out the tension between economic and population growth, advocated
for control measures on birth and eugenics;
´ Ma was purged during the Anti-Rightest Movement since 1958;
´ The State Council introduced a policy guidance on family planning in 1962, but
the implementation was interrupted by the Cultural Revolution.
 Family Planning Policy (计划生育)
´ The State Council Report on Implementing the Family Planning Work
in 1971
´ The “later, longer, and fewer” campaign
´ The 1978 Constitution: the state advocates and encourages family
planning
´ The 1980 Marriage Law
´ Art 2: couples bear the obligation to practice family planning
´ Art 5: increased to minimum age for marriage to 22 years old for men and
20 years old for women
´ Arts 8 and 16: aimed to enhance the social acceptability of matrilocal
marriage
 The Family Planning Policy (2)

´ The 1982 Constitution: family planning was made a fundamental state

policy (基本国策).
´ Encourage couples to practice late marriage and late childbirth
´ Promote one-child for one couple and allows a second child in only in
certain circumstances
´ The minority ethnic groups should also follow the family planning policy
´ The formulation and implementation of the family planning policy
continued to rely on internal policy directions and local regulations.
 Other Regulatory Objectives

´ To improve the quality of population

´ The 1980 Marriage Law art 7: bans cross-cousin marriage and marriage of
any person with serious hereditary disease;
´ The 1994 Maternal and Infant Health Care Law: intending spouses must
conduct a pre-marriage medical examination in government-certified
hospitals or health clinics.
´ Art. 15 & 17: Parents have the duty to educate, discipline and protect their
children and ensure the children’s right to attend school.
 Family Planning: Legislation
´ The 2001 Population and Family Planning Law
´ Art 2: reaffirms the family planning as the fundamental state policy.
´ Art 25: couples who practice “late marriage and late childbirth” are entitled to an
extended wedding holiday and childbirth leave.
´ Art 41: Citizens who violate the family planning regulation need to pay a penalty
called the social compensation fee (社会抚养费).
´ Art 42: State employees who violate the family planning regulation will be subject to
administrative or disciplinary punishments including wage cut or even dismissal (in
addition to other applicable penalties).
´ Art 36-40: legal liabilities for state officials who violate or fail to implement their legal
mandates in family planning.
´ The Marriage Law Judicial Interpretation (3)
´ Art 9: confirms women’s right to abortion without the husband‘s consent.
 Cadre Responsibility
´ Arts 9-12 of the Family Planning Law: all levels of governments, from
the State Council down to neighborhood and township governments
and local residents’ committees, are responsible for birth control
targets.

´ Failure to meet assigned birth quotas can result in salary reduction,

disciplinary sanctions, and demotion for government officials.

´ Family planning departments and local governments are allowed to

retain a portion of the social compensation fees collected.
 Impact on Population Growth

Fertility rate (births per woman)

Source: World Bank

Impact on Population Growth (2)
 Widening Gender Gap
Percentage of women in population

Source: World Bank

• There are now 30 to 40 million of surplus men, mostly in Chinese countryside;

• Increased mental distress among younger generations;
• Kidnapping and trafficking of women for marriage.
 Population Aging
• By the end of 2014, China had 212 million
people aged above 60, accounting for
15.5 percent of the total, while the world’s
average is around 12 percent.
• Only 24 percent of the elderly population
(60 or above) were eligible for a pension
while 41% of elderly people had to rely on
family support.
 Policy Turn
´ 2013: local experiments allowing couples where either the husband or the wife is
from a single-child family to have two children
´ 2015: Population and Family Planning Law was revised to confirm the universal
two child policy (art. 18)
´ No long needs to seek ex ante approval from the government to have a child
´ The use of contraception measures by women is now voluntary (art 20)
´ 2020: the Civil Code dropped the principle of family planning
´ 2021: Population and Family Planning Law was revised again to allow three
children per couple
´ Announced weeks after the results of the latest census suggesting a rapidly aging
society and shrinking working age population
´ Abolished the social compensation fee system
´ Local experiments encouraged in areas of maternity benefit, women’s rights protection,
public education and housing support, etc.
 Legal Efforts
´ Local regulations have extended maternal leave to six months;

´ Strengthened enforcement for rules barring companies from firing

pregnant women until their child is at least one year old;

´ Efforts to repeal local regulation that penalizes state employees for

violating family planning policies;

´ Policy and regulations imposing restrictions on abortion (?)

´ State Council’s Development Plan for Women (2021-2030): aims to reduce “abortion for
non-medical purposes”.

´ The legislature and judiciary has also tightened regulation on divorce.

 Social Responses

´ The universal two-child policy has not been as effective as expected in

stimulating birth growth:
´ Since 2016, the number of births has continued to decline, from 17.9 million in
2016 to 14.6 million in 2019.
´ Part of the reason is the rising cost of housing, education, and living and the job
stress facing young couples in China.

´ Proposals for using more aggressive measures

´ Eg., “no child tax” or “reproduction fund”
´ A representative of Shanxi Provincial Political Consultative Conference advocated
for measures to “require” young couples to follow the two-child policy.
The Phenomenon of Leftover Women (剩女)

´ Mainly an urban phenomenon

´ Relational dignity: mixture of social and legal normative pressure

´ Debate on the liberalization of reproductive rights

´ Traditional conception of family

´ Legal restrictions of assisted reproductive technology

III. GENDER
 Gender Equality in China

´ The symbolic promotion of gender equality in Maoist China: women

hold up half the sky (妇⼥能顶半边天).

´ Increasing gender inequality during the open-up and reform era

´ In 1990, for example, the average annual salary of an urban woman was 77.5
percent that of men, but by 2010, urban women’s average income fell to just 67.3
percent that of men.

´ Reemergence of the traditional stereotypes and values about women’s role in

society.
 Gender Discrimination at Workplace
´ Direct discrimination in the hiring process
´ Discrimination on the grounds of gender is strictly prohibited by Labor Law, Law on
the Protection of Women’s Rights and Interests, and Employment Promotion Law.

´ In China’s 2019 national civil service job list, about one-fifth of the postings specify a
requirement or preference for men, without giving reasonable clarifications.

´ Discrimination against pregnant female workers

´ Many employment contracts restrict female workers’ freedom to marry or to bear a
child and require compensation for violation.

´ Most such terms are found to be invalid by the courts.

 Gender Discrimination at Workplace (2)
´ “Protective discrimination”
´ Eg., for all state entities, the retirement age for men is 60 years old while that
for women is 55 or 50, according to a State Council Regulation.
´ In 2005, Zhou Xianghua, a female manager at a state-owned bank brought a
lawsuit challenging the legality of the mandatory retirement age for women
based on the constitutional right to equality
´Since Chinese court does not have the power to conduct constitutional review,
Zhou’s claims were not supported.
´ The 13rd Five-Year Plan: a progressive plan to delay and unify retirement
age.
 Legal Protection of Gender Equality
´ Major legislation
´ Law on the Protection of Rights and Interests of Women (1992)
´ Labor Law (1994)
´ Employment Promotion Law (2008)
´ Legal remedies
´ Make petitions to women’s rights groups and government agencies
´ Request arbitration at a labor arbitration committee
´ Sue employers before a court
´ Challenge
´ Difficulty in evidence collection
´ No punitive damage
´ Inadequate supporting mechanisms
 Impact of the Reproduction Policy
´ Introduction of the universal two-child policy and the three-child policy
´ Intrafamily negotiation on whether or not to have more children

´Women’s fertility autonomy depends on their relative financial strength.

´ Exacerbated gender discrimination in the labor market

´ Employers have faced more disincentives to hire women because of the

increased economic cost

´More female job applicants have received questions about their marital status and
birth plans during the interview

´Local experiments underway to explore better welfare system for pregnant

women workers: formal vs informal barriers
 Interplay of Marriage and Reproduction
´ Impact of the three-child policy on women employment
´ Employers face more disincentives to hire women because of the increased
economic cost
´ More female job applicants have received questions about their marital status
and birth plans during the interview
´ Conflicting trends in China’s reproduction policy and marriage law
´ The state’s concern over population decline and the resurgence of traditional
culture values have called upon Chinese women to return to family.
´ Meanwhile, the individualization and monetization trends of marriage law
have weakened protection of women’s interest in marriage.
´ The contradiction between the two has resulted in a decline in both the
financial security and fertility autonomy of Chinese women.
 LGBT Rights in China

´ Between 1949 and 1997, sodomy was criminalized in China through

the crime of hooliganism (流氓罪).

´ In 1997, the Criminal Code abolished hooliganism.

´ In 2001, the Chinese Psychiatry Association removed homosexuality

from its official categorization of mental disorders.
 Case One
´ The fight against conversion therapy (扭转治疗) in China
´ After 2001, many mental health clinics have continued to offer conversion therapy
for homosexuals.

´ In 2014, Mr. Y, after receiving electroconvulsive therapy from a psychotherapy

center he found through Baidu, filed a lawsuit against both the psychotherapy
center and Baidu.

´ The Haidian District Court of Beijing acknowledged that homosexuality was not
an illness and ruled that the therapy center had performed services beyond the
limit of its license, which also had already expired.

´ The plaintiff was awarded compensation for incurred expenses and a formal
apology from the psychotherapy center.
 Case Two
´ Anti-discrimination in the workplace
´ Chinese legislation has yet to recognize discrimination based on one’s sexual
orientation as part of gender discrimination.
´ In 2015, Mr. C, a transgender man, sued his formal employer for firing him based
of his gender identity.
´ C was awarded compensation for illegal termination, but the court refused to order the
employer to issue an apology.
´ In 2019, Ms. Gao, a transgender woman sued Dangdang.com for illegal
termination of contract and gender discrimination.
´ The No. 2 Intermediate Court of Beijing ruled that legal rights and human dignity of
transgender people should be protected, including their equal right to work, and found
the termination of employment contract to be invalid.
 Case Three

´ Engaging the government through administrative litigation

´ In 2015, Qiubai, a lesbian college student in Guangdong, sued the Ministry of
Education for using textbooks that contain incorrect and discriminative
information about homosexuality.
´ The courts of first and second instances found that the plaintiff lacked the
necessary “legal interest” to gain the legal standing to sue.
´ After the Qiubai case was reported widely by media, several university presses
have removed or corrected relevant contents on homosexuality in their textbooks.
 Case Four
´ The issue of child custody in the “divorce” dispute of a lesbian
couple
´ In 2016, Didi and Minmin completed marriage registration in Los Angeles.
´ In 2017, Didi gave birth to a daughter and Minmin gave birth to a son in the
U.S., both using Minmin’s eggs. Between 2017 and 2020, Didi stayed
home (in Shanghai) to care for the kids.
´ The couple broke up in 2020, and Didi was denied access to the kids. She
sued to seek custody over her daughter and right to visit her son.
´ Legal issues
´The legality of marriage
´Child custody
´Consideration of the two parties’ economic capacity and contribution to child-
care
 Legal Restrictions on LGBT Groups

´ Same-sex marriage is not allowed or recognized in China;

´ Discussions during the public comments period of the Civil Code.

´ Legal challenge for same-sex couples to jointly adopt children or to

inherit each other’s property;

´ Some couples have used notarization to achieve a certain degree of

legal protection;

´ Limitations of notarization: can be revoked by single party at any time;

uncertainty in “divorce” disputes.