WUNRN
http://www.womenofchina.cn/html/womenofchina/report/15030584-1.htm?=mail
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.