Marriage and Divorce in China after implementation of the First Civil Code
A Guest Post by Yacong Lin
The First Civil Code of the People’s Republic of China will come into effect on January 1, 2021. It will have an impact on Marriage and Divorce in China. Upon the implementation of the Civil Code, any relevant laws already in force, including the Marriage Law, will be formally abolished. Accordingly, there are several provisions stipulated in the Marriage Law that will be overridden, and it will be important to pay attention to these changes. One notable example of this is that the one child policy stipulated in the Marriage Law will no longer be valid under the Civil Code. Below, I will discuss some of the other changes regarding marriage and divorce.
According to the Civil Code, marriage should meet the following conditions:
– The man and the woman have both reached the statutory marriageable age in China – the man should be at least 22 years old and the woman should be at least 20 years old.
– Both parties should not be lineally related by blood and cannot be collateral relatives by blood up to three generations.
– Neither party can be married (no bigamy).
Both the man and the woman who wish to get married must apply in person at the Marriage Registration Office for marriage registration.
The biggest change in the Civil Code with regard to marriage is that serious diseases will no longer be a legal condition for the prohibition or invalidation of marriage. According to article 1053 of the Civil Code, if one party suffers from a serious disease, he/she shall truthfully inform the other party before the marriage registration; if not, the other party may request the People’s Court to revoke the marriage.
Also noteworthy is that the Marriage Registration Office can only accept a marriage application when at least one party holds Chinese nationality, based on Notice No. 456 issued by the Ministry of Civil Affairs on 29 March 2019.
As in most countries, divorce proceedings stipulated in the Civil Code involve both divorce by agreement and divorce by litigation.
Divorce by agreement:
According to the current Marriage Law, a couple can immediately receive a divorce certificate at the Marriage Registration Office if they meet the conditions for divorce. After January 1, 2021, when the Civil Code is implemented, this process will be changed. A couple will then have to go to the Marriage Registration Office together to apply for a divorce; after a 30 day ‘waiting’ period following this application, the couple must again go together to the Marriage Registration Office to get the divorce certificate. They are allowed an additional 30-day period to do so. If they fail to do so during that second 30-day window, their application will be invalidated.
Divorce by litigation:
Generally speaking, either party can institute divorce proceedings in court. However, in the following circumstances the husband is not allowed to apply for a divorce unless the court deems it specifically necessary. These circumstances are:
– When the wife is pregnant;
– Within one year after the birth of a child;
– Within six months after the termination of her gestation.
The Court cannot adjudicate a divorce without legal cause. According to the provisions of the Marriage Law, the Court can directly make a divorce judgement if any of the following can be proven:
– A party is proved to have engaged in bigamy or cohabitation;
– Domestic violence, maltreatment, or desertion of a family member;
– One party indulges in gambling, drugs, or other vices that are incorrigible and refuses to correct after repeated persuasion;
– The couple has been separated for two years due to emotional discord;
– One party is declared missing and the other party initiates divorce proceedings.
The Civil Code adds a new circumstance that enable a court to directly adjudicate a divorce:
– Where one party initiates divorce proceedings again after the Court has ruled against divorce and the two parties have separated for an additional year.
The Civil Code is another milestone in China’s efforts towards developing a comprehensive legal system and protecting people’s rights, including many family law considerations that sometimes get overlooked in the discussion.
About the Author:
Yacong Lin is a partner and is in charge of the International Family Law practice of DaWo Law Firm Shanghai. Lin primarily focuses on marriage law and inheritance law. She acts as legal counsel for domestic and foreign clients, and has handled numerous global complex lawsuits and non-litigation cases for both domestic and foreign clients. She provides customized solutions to varying needs, always endeavoring to offer “customer-oriented legal services”. Lin is bilingual in Mandarin and English.