― Ed..

The Marriage Law acts to regulate relations between married people and domestic relations as a whole. Its stipulations involve the personal interests of each citizen, and its function is of vital importance to the prosperity of the nation and the progress of society.

Following the founding of the People’s Republic of China in 1949, a marriage law was promulgated in 1950, and was amended in 1980. The legislation was to guarantee the freedom of marriage, monogamy, equality of the sexes and protection of the legal rights of women, children and aged people.

Over the two decades since the marriage law was amended, China has taken the road of reform and opening up to establish a socialist market economic system. Tremendous changes have taken place in social life, which have eventually led to new changes in the sphere of marriage and family life. But the existing marriage law is limited in the scope of readjustment, has systematic deficiencies and is not very workable. These shortcomings have become obvious with the increasingly intensified demand for readjusting marriage and domestic relations, and so it has become inevitable to revise the existing law.

As a law researcher, I hope that the revised marriage law will be more complete and scientific, and can reflect the spirit of the progress of the times and the distinguished civilization of the Chinese nation. It should provide people with legal norms and directions in handling their marriage and domestic relations, and provide law-enforcement agencies with a practical legal basis.

Chinese law experts have put forward their suggestions in relation to the amendment of the marriage law after researching in depth, and repeated discussions and deliberations over several years. Their suggestions pinpoint the following issues: First, the name of the Marriage Law should be changed to the Law on Marriage and the Family, to fully reflect the fact that it is marriage and domestic relations that the law is to regulate. Second, as the Law on Marriage and the Family will be an integral part of the civil law, its specific system should be coordinated with the norms of civil law. Third, the Law on Marriage and the Family should improve the marital system, strengthen the legal regulation of conjugal relations, complement the specific family system and the provisions concerning divorce, and add norms for regulating legal disputes involving inter-regional marriage and domestic relations under the “one country, two systems” policy. And fourth, the law should include general principles, and clauses covering relatives, marriage, husband and wife, divorce, parents and children, adoption, guardianship, upbringing, legal responsibilities and supplementary articles.

The revision of the marriage law has aroused wide attention in China. The amendments to the marital system, the system of husband’s and wife’s personal rights, the system of husband’s and wife’s property and the system of divorce in particular have become hot subjects.

Marriage

In respect of the marital system, I believe that the law should establish a marital system that secures full realization of citizens’ rights to freedom of marriage and effectively safeguard monogamy for the establishment of healthy and civilized marriage relations.

As a result, the law should introduce the concept of “marriage competence,” explicitly stipulating that only those people who are of marriageable age and who are of sound mind are qualified to marry. The marriage applicants should be those who are single, have lost their spouses or have got divorced. In addition, the provision forbidding marriage should reflect the demands of modern society for guaranteeing citizens’ right to health.

In terms of marriage procedures, the new law should stipulate the following new rules: First, in order to enhance citizens’ awareness of the legal and social implications of marriage, the new law should make it clear that a marital ceremony must be held in an appropriate way after marriage registration. Second, to ensure the quality of marriage registration, marriage registries should be set up within the civil administrative bodies of the people’s governments at the county level. But ethnic minority autonomous regions and county governments in remote areas are allowed to entrust the grassroot governments (township or ethnic minority autonomous township people’s governments) with handling marriage registration. Third, to prevent interference with the freedom of marriage, application for marriage registration should be made personally by the couple wishing to get married. And fourth, a marriage notice system should be established to reflect the openness of the marital act and legal social supervision.

In the aspect of invalidity of marriage, the new law should have following provisions: First, it should list the legal conditions of invalid marriage, for instance, involuntary marriage, marriage under the legally marriageable age, bigamy, the married parties having too-close kinship ties or diseases, and living together as husband and wife without marriage registration. Second, the restrictions on the scope of people who exercise the right to request confirmation of invalid marriage, and the time limit of exercising such right should be defined. Third, procedures for confirming invalid marriage should be stipulated, as should the legal consequences of invalid marriage.

In respect of a husband’s and wife’s personal rights, the new law should reflect the demand of modern society for regulating the relationship between husband and wife, i.e. to establish a husband-wife relationship based on equality and mutual love, and to promote family harmony and happiness as well as social progress. Such personal rights should include the right to human dignity and right to identity. The wording of “husband’s and wife’s personal rights” is not unfamiliar, but whether the concept of “spouse’s right” should be channeled into the new law has aroused much controversy. From the angle of law, actually, the “husband’s and wife’s right to identity” and the “spouse’s right” are identical in both connotation and extension. To me, it is not inappropriate to use the concept of “spouse’s right” in the new law, and the contents of this right should be clearly defined in the law, that is, both the husband and wife have equal rights to child-bearing, parental power, determination of residence, living together, removal of obstacles to the spouse’s right, and management of domestic affairs.

Property

In respect of the husband’s and wife’s property right, I think that the new law must give consideration to the following social conditions: China’s social economic system and social security system affect a husband’s and wife’s property right; and the Chinese citizens’ material guarantee remains associated with each family’s economic activities and with the marital and domestic property system. Consequently, mandatory provisions of law and citizens’ autonomy should be combined in designing the husband’s and wife’s property system. In addition, rules in relation to this system are also closely associated with various provisions over things. Hence, the system should be designed to fit in with the law relating to the rights over things. To ensure safety in transaction, for instance, the law should make corresponding restrictive provisions on the disposal of a married couple’s common property by either of them to protect the interest of bona fide third persons.

The contents of such property right in the new law should still include: the ownership of property, the right to raise children and the right to inherit each other’s property, of which the ownership of the property is the key issue. As to which option of property system should be chosen between husband and wife, I consider that the law should not only set out some mandatory rules but also respect the choice of citizens, giving the partners in a marriage the full right to make their own decisions. First of all, to guarantee the basic material needs of family life, the new law should take the system that husband and wife share their property as the leading system, and should clearly define the scope of common property shared by husband and wife, for instance, the following properties acquired by the husband and wife during the period in which they are under contract of marriage (peculiar properties are excluded) should be in their joint possession: payment for labor by either of the parties or both parties; payment for business activities by either of the parties or both parties; payment for intellectual property acquired by either or both parties; properties acquired by either of or both parties through means of inheritance, grant or legacy (except for cases in which the will or grant contract identifies one party as the heir, legatee or receiver of property presented as a gift); and other properties lawfully acquired by either or both parties. Secondly, a citizen’s title to his personal property is an undeniable form of right in the property ownership framework of the civil law system. The Marriage and the Family Law is no exception. It therefore should establish personal property ownership by either husband or wife and specify the scope of such peculiar personal property, for instance, one party’s pre-marital property and its propagated interests; inheritance, legacy or grant to one party as defined in a will or granting contract; intellectual property-related expectation of property one party enjoys; special property essential in one party’s career (except those of great value and purchased with the joint property of husband and wife; clothes and other daily articles of one party; and other properties in personal possession according to law. Thirdly, the new law should define three types of property system agreed between husband and wife ―general sharing system, joint management system and separate property system ― as options to husband and wife. Finally, to meet the requirements of market economic development and ensure safety in transaction, the new law should also explicitly stipulate that the agreement between husband and wife in relation to their option of the property system should not be to the detriment of a bona fide third party

Divorce

I consider that the divorce system established in the new law should give expression to protection of freedom of divorce, protection of weak persons, realization of the fairness and justice of law, and the operability of specific legal provisions.

While stipulating the divorce registration system, the new law should set up a period of review for divorce applications. Such a provision may guarantee the right of the couple concerned to freedom of divorce on the one hand, and on the other, may give the couple concerned the necessary time to seriously consider the consequence of their divorce so as to avoid any hasty action.

In respect to the system of divorce proceedings, the new law should change the legal grounds for granting a divorce from the provision that "divorce should be granted if mediation fails because mutual affection no longer exists" in the Marriage Law now in force to the provision that "the court should decide whether to grant a divorce after determining whether the marriage has really broken up after mediation has failed. To facilitate the enforcement of this provision, the new law should spell out the specific circumstances for a broken marriage, for instance:

— Where one party commits bigamy, adultery or unlawful cohabitation, and the other party does not extend forgiveness;

— Lacking affection for each other, the couple has lived separately for three years and in that time neither has fulfilled the husband's or wife's duty;

— Where the whereabouts of one party has been unknown for two or more years and the other party undertakes divorce proceedings, the party whose whereabouts is unknown fail to respond to the suit when the period of public notice for his or her presence has expired;

— One party is maltreated or abandoned by the other party;

— As one party has bad habits such as gambling, excessive drinking or drug taking and does not fulfill his or her domestic duties, the couple can no longer live together;

— One party constitutes a serious threat to the personal safety of the other party;

— One party is sentenced to at least five years imprisonment, or his or her criminal action has seriously harmed the mutual affection; and

— Other reasons causing actual breakup of a marriage.

In relation to the disposition of property at the time of divorce, the new law should stipulate as follows: property in the joint possession of husband and wife should be distributed equally, and specific arrangements should be worked out by both parties through consultation. If they fail to reach an agreement, the court should make a judgment, taking into consideration the actual circumstances of the parties concerned and the property. Property peculiar to one party should remain in the possession of that party after divorce. During the disposition of property in joint possession of husband and wife, consideration should be given to the actual needs of the female party and the parent who has been given custody of a child. The disposition of such property should also be conducive to the production, business management and life of the parties concerned. When a house which is jointly possessed by husband and wife, property of great value or property under joint management with others are assigned to one party, the other party should be compensated according to the principle of fairness. If the divorce is caused by the serious fault of one party, the party without fault has the right to claim compensation for the hurt from the other party. Specific arrangements should be worked out by both parties through consultation. It they fail to reach an agreement, the court should make a judgment.

In respect to performance of debt and financial assistance at the time of divorce, the new law should stipulate that the debts incurred jointly by husband and wife for managing their married life and for fulfilling their legal duties to provide support should be paid out of their jointly possessed property at the time of divorce. If they do not have shared property or such property is insufficient to pay the debts, the two parties should discuss alternative ways of payment. If they fail to reach an agreement, the court should make a judgment. The following types of debts should be personal debts of either husband or wife, and should be paid by the party who incurred them using his or her personal property at the time of divorce: debts incurred by one party during his or her business activities with his or her personal property, without the consent of the other party; debts to be paid by one party according to an agreement reached between the two parties (except agreements which evade the regulation of laws and hurt the rights and interests of third persons; other debts which one party is responsible for paying .

At the time of divorce, the party that has real difficulty in supporting himself or herself or whose living standard drops noticeably as a result of the divorce has the right to request appropriate financial assistance or compensation from the other party that has the financial capacity. Specific arrangements should be worked out by both parties through consultation. If they fail to reach an agreement, the court should make a judgment.

*The author is currently professor of law at the Law School of the People’s University of China, deputy director of the Marriage Law Institute under the China Law Society, and deputy director of the Civil Law Institute under the Beijing Municipal Law Society.