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China – Proposed Revisions of Marriage Law May Require Deliberation Period & Forbid Divorces of Couples with Children Under Age 10

 

Editor: A. Hou – March 5, 2015

Since a proposal on revising and updating the Marriage Law system was recently reported by media, netizens have expressed their widespread concern over suggestions that parents with children under 10 would be "forbidden to divorce by agreement."

The proposal was delivered by the Revolutionary Committee of the Chinese Kuomintang, a democratic party in mainland China, during the "Two Sessions" of 2015. Their suggestions were based on the results of a survey on the implementation of the Marriage Law in 2014 conducted in northeast China's Liaoning Province, north China's Tianjin Municipality and south China's Guangdong Province, among other places.

According to the report, current marriage laws regulate that as long as a couple agrees, they can go through the divorce procedures in local civil affairs bureaus, which is too easy and has led to sharp increases in divorce rates in recent years. The report suggests establishing a divorce registration appointment system and a mandatory deliberation period for couples.

Data from Ministry of Civil Affairs shows that from 2002 to 2013, marriage registrations rose by 71.4 percent, whilst divorce rates rose by 197.4 percent, and the ratio between divorce and marriage grew from 15 to 26.1 percent.

During the investigations, researchers found that the current Marriage Law lacks intervention on the divorce of couples who have young children and lacks protection for minors' legal rights and interests. Furthermore, it neglects to clarify which of the divorced parents' have taken guardianship of a child, leading to difficulties in deciding child-support payments and implementation.

The proposal suggests that to protect the legal rights and interests of the affected minors a mandatory deliberation period before a divorce should be established to give the parents more time to meditate on their marriage. It also suggests that "parents whose children are under the age of 10 are forbidden to divorce by agreement" and "if parents whose children are above 10 intend to divorce, the wishes of the children should also be taken into account."

Xia Yinlan, a professor of the China University of Political Science and Law and an expert on the Marriage Law, said the proposal is reasonable in certain aspects. "Freedom of marriage is the principle of the Marriage Law, but any freedom is comparative and has limitations, and there is no absolute freedom," she said. She said that some countries have restrictions on the freedom of divorce, such as Russia, where parents whose children are minors should go through special proceedings before any such action can be passed.

Xia said that parents may not think comprehensively about the problems of bringing up their young children in their divorce agreement, leading to the fact that the offspring's rights and interests would be lacking legal protection. If they go through with proceedings, however, the judge will balance various factors to exert the role of law to protect the underprivileged.

Song Yushui, a judge of the Beijing Intellectual Property Court and a previous judge of the Haidian People's Court, who has heard numerous divorce cases, said that while handling divorces cases, the court usually issued more detailed meditative and protective measures for the upbringing of minors. "We usually evaluate the work, income, living conditions of both parents, to make a decision in the interest of the minors to keep the material and mental impact to a minimum," she said.