China promulgated its first Civil Code in May 2020, which includes seven parts, i.e., General Principles, Real Rights, Contracts, Personality Rights, Marriage and Family, Succession, Liability for Tort, and Supplementary Provisions. The Marriage and Family is its fifth part.
For related posts on the PRC Civil Code, please click here.
Before this, China had promulgated Marriage Law and Adoption Law respectively. After the promulgation of the Civil Code, the two laws are to be abolished accordingly on 1 Jan. 2021 when the Civil Code enters into force.
“Part V Marriage and Family” is divided into five chapters: General Provisions, Marriage, Family Relations, Divorce, and Adoption.
We have selected some noteworthy points as follows:
1. Only a man and a woman can apply for marriage registration. The Civil Code does not provide that same-sex partners can apply for marriage registration.
See an earlier post, “Chinese Court Backs Protection for LGBTQ Workers”, for the discussion on changing dynamics of LGBTQ topics in Chinese courts.
2. The marriageable age shall not be earlier than 22 years old for men, and shall not be earlier than 20 years old for women.
3. The husband and wife shall have an equal status in marriage and family, and both husband and wife have the right to use his/her name.
4. The properties that acquired during the existence of the marriage shall be the common property of the spouses and shall be commonly owned by the spouses.
However, the following properties shall be the personal properties of the husband or the wife:
(1) the properties that belong to one party before marriage;
(2) compensation or indemnity obtained by one party for a personal injury;
(3) the properties that belong to only one party as determined by a will or by a contract of gift;
(4) the daily necessities of one party.
5. The husband and wife have the right to inherit each other’s properties. Parents and children have the right to inherit each other’s property.
6. Children born out of wedlock shall have equal rights as children born in wedlock.
7. Parents are obliged to raise minor children. Adult children are obliged to support parents who are unable to work or have difficulty in providing for themselves.
8. Methods for divorce include divorce by registration and divorce by litigation.
(1) Divorce by registration: if the spouses both intend to get divorced voluntarily, they should apply for divorce registration in person to the marriage registration authority.
(2) Divorce by litigation: if only one party requires divorce, he/she may directly file a divorce lawsuit in a people’s court.
9. In the mechanism of divorce by registration, in order to prevent the spouses from applying for divorce out of impulse, the Civil Code sets a 30-day “cooling-off period” (冷静期) for the first time.
It is worth noticing that the “cooling-off period” here is the name given by the public, but not a legal concept.
Under this circumstance, the procedures for divorce by registration are as follows:
Step 1, applying for divorce: the spouses apply to the marriage registration authority for divorce registration.
Step 2, the “cooling-off period”: within 30 days from the date that the marriage registration authority receives the application for divorce registration (the “cooling-off period”), either party may withdraw the application for divorce registration.
Step 3, applying for divorce certificate: if neither of the spouses has withdrawn the application during the cooling-off period, then within 30 days upon the expiration of the cooling-off period, both spouses can apply to the marriage registration authority for issuing the divorce certificate. Failure to apply the divorce certificate during the stipulated time shall be regarded as the withdrawal of the divorce registration application by the spouses.
Many argue that this new regulation for divorce registration is very unfavorable for women who are treated inappropriately in their family, for the husband can withdraw the application unilaterally during the cooling-off period after his wife has finally persuaded him to get divorced, which makes it more difficult for women to get rid of a failed marriage.
Moreover, some commentators believe that this provision will make more people have to resort to divorce by litigation, thereby significantly increasing the number of relevant lawsuits.
10. In a divorce by litigation, the court shall first mediate between the spouses to try to prevent the divorce.
However, after review, if the court considers that there is an irretrievable breakdown of marriage and the mediation is failed, the divorce shall be granted.
11. The husband shall not apply for a divorce when the wife is pregnant or within one year after the birth of the child or six months after the termination of gestation, unless the divorce is raised by the wife, or the people’s court deems it necessary to accept the divorce application made by the husband.
12. An adopter with no child may adopt two children, while an adopter with children can only adopt one child.
13. If a person who has a spouse intends to adopt a child, the husband and wife shall adopt him/her together.
If a person without a spouse intends to adopt a child of the opposite sex, the age difference of the adopter and the adoptee shall be more than 40 years.
14. Foreigners may adopt children in China, but they need to go through legal procedures.
The English translation of the PRC Civil Code is currently available for pre-order on China Justice Observer. If you are interested in a pre-order, please contact Meng Yu via e-mail at email@example.com. The PRC Civil Code of 110,123 Chinese words in total are translated into English, and the English translation (estimated at 60,000 words) is priced at US$ 4400. We will provide the English translation and the English-Chinese version within 2 weeks.
Photo by Li Lin (https://unsplash.com/@northwoodn) on Unsplash
Contributors: China Laws Portal Team