Transforming family law in post-deng china: Marriage, divorce and reproduction

China Quarterly

Volumn , Issue 191, 2007, Pages 675-695

  Palmer, Michael ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

DIVORCE; FAMILY PLANNING; MARRIAGE; POST-COMMUNISM; REPRODUCTION; SOCIAL DEVELOPMENT; SOCIAL POLICY;

ASIA; CHINA; EURASIA; FAR EAST;

EID: 37748999182     PISSN: 03057410     EISSN: 14682648     Source Type: Journal    
DOI: 10.1017/S0305741007001658     Document Type: Article

References (64)

1. Michael Palmer, "The re-emergence of family law in post-Mao China: marriage, divorce ańd reproduction," in Stanley Lubman (guest ed.), "Law in China Under Reform," The China Quarterly, No. 141 (1995), pp. 110-34
2. republished in Stanley B. Lubman,(ed.) China's Legal Reforms (Oxford: Oxford University Press, 1996), pp. 110-34.
3. For details see, for example, Ma Yinan, Hunyin jiating fa xinlun (New Discussions on Marriage and Family Law) (Beijing: Beijing daxue chubanshe, 2002)
4. Liu Shuqiang (ed.), Zhonghua renmin gongheguo hunyin fa tiaowen jieshi (Explanation of the Articles in the, Marriage Law of the People's Republic of China) (Chengdu: Sichuan renmin chubanshe, 2001)
5. Yang Xuéming and Qu Zhi, Xin "hunyin fa" redian jujiao (Focus on Controversial Issues in the new Marriage Law) (Shenyang: Liaoning, huabao chubanshe, 2001)
6. Ma Yuan (ed), Xin hunyin fa: Ji sifa jishi shiyong zhinan (Practical Guidance on the New Marriage Law and Judicial Interpretations [on Marriage Law]) (Beijing: Renmin fayuan, chubanshe, 2002)
7. Ma Yuan (ed.), Xin hunyin fa: Anli pingxi (The New Marriage Law: Case Analysis) (Beijing: Remnin fayuan chubanshe, 2002). Within family law circles in China, the debate on the reform of the Marriage Law amendments is regarded as a significant step forward in public participation in the process of law reform. Nevertheless, a number of the more radical suggestions made were rejected and the extent to which the debate was truly free and open must be doubted, given party-state control of the media.
8. That is, the 2001 "Zuigao renmin fayuan guanyu shiyong 'Zonghua renmin gongheguo hunyin fa' ruogan wenti de jieshi [1]" ("Interpretation of the Supreme People's Court on several problems concerning the application of the Marriage Law of the PRE [1]"), promulgated and in force 24 December 2001, and the 2003 "Zuigao renmin fayuan guanyu shiyong 'Zonghua renmin gongheguo hunyin fa' ruogan wenti de jieshi (2)" ("Interpretation of the Supreme People's Court on several problems concerning the application of the Marriage Law of the PRC [2]") promulgated 25 December 2003 and in force 1 April 2004 in Hunyin fa peitao guiding (A Complete Set of Rules on the Marriage Law) (Beijing: Zhongguo fazhi chubanshe, 2006) at pp. 14-18 and pp. 18-22 respectively.
9. See also Zuigao renmin fayuan minshi shenpan diyi ting (First Civil Trial Chamber of the Supreme People's Court) (ed.), Hunyin fa sifa jieshi ji xiangguan falü guifan (Judicial Interpretations of the Marriage Law and Relevant Legal Provisions) (Beijing: Renmin fayuan chubanshe, 2001)
10. Huang Songyou (ed.), Hunyin fa sifa jieshi (2) de lijie yu shiyong (Understanding and Applying The Second Judicial Interpretation of the Marriage Law) (Beijing: Renmin fayuan chubanshe).
11. Marriage Registration Regulations (Hunyin dengji tiaoli), promulgated by the State Council, 8 August 2003 and in force 1 October 2003, in A Complete Set of Rules on the Marriage Law, pp. 42-48.
12. "Zonghua renmin gongheguo renkou yu jihua shengyu fa," promulgated 29 December 2001 and in force 1 September 2002, in Renkou yu jihua shengyu fa ji qi peitao guiding (The Population and Birth Planning Law and a Complete Set of its Rules) (Beijing, Zhongguo fazhi chubanshe, 2003) at pp. 1-9.
13. "Shehui fuyang zhengshou guanli banfa," in ibid. at pp. 135-37.
14. "Zhonghua renmin gongheguo shouyang fa," revised andin force 4 November 1998, in A Complete Set of Rules on the Marriage Law, pp. 23-27.
15. See Michael Palmer, "Protecting the rights and interests of the elderly: Developments in the family law of the People's Republic of China, 1996-8," in A. Bainham (ed.), The International Survey of Family Law: 1999 (Dordrecht: Kluwer (for The International Society on Family Law), 1999), pp. 95-107,
16. and Michael Palmer, "On China's slow boat to women's rights: Revisions to the Women's Protection Law, 2005," in P. W. Chan (ed.), special issue of International Journal of Human Rights on "Equality in the Asia Pacific," Vol. 11, Nos. 1 and 2 (2007), pp. 151-77.
17. See, for example, China Legal System Press, Hunyin jiating ban'an changyong shouce (An Everyday Handbook for Handling Cases of Marriage and Family) (Beijing: Zhongguo fazhi chubanshe, 2006),
18. and Huang Songyou (ed.-in-chief), Hunyin jiating sifa jieshi shili shijie (Marriage and Family: Explanation of Judicial Interpretations and Concrete Cases) (Beijing: Renmin fayuan chubanshe, 2006).
19. For an admirable analysis of key aspects of the reform of the Marriage Law in 2001 see William Alford and Yuanyuan Shen, "Have you eaten, have you divorced? Debating the meaning of freedom in marriage in China," in William C. Kirby (ed.), Realms of Freedom in Modern China, Vol. 15, "Making of modern freedom" series (Stanford, CA: Stanford University Press, 2004).
20. Palmer, "The re-emergence of family law in post-Mao China," at p. 118.
21. Marriage Registration Regulations, 2003 replacing the Regulations on the Administration of Marriage Registration, 1994. See further below, n. 19.
22. That is, "Zhonghua renmin gongheguo fanü quanyi baozhang fa" ("The Law on the Protection of Rights and Interests of Women of the People's Republic of China"), revised and in force 25 August 2005, in A Complete Set of Rules on the Marriage Law, pp. 28-36.
23. Marriage Law of the People's Republic of China 1980, as revised 2001, at Article 7.
24. At Article 8.
25. Article 10 provides that a "marriage" remains invalid if the parties fall short of the minimum legal ages of marriage, and a void marriage is, invalid from its inception (Article 12).
26. Article 6 provides that the same principles also apply where one party dies andjhe other claims succession rights in the estate of the deceased.
27. The detailed rules on the property division dimensions of void and voidable marriages are not considered here, for reasons of space. Suffice it to note that the 2003 Interpretation at Article 1 guarantees cohabiting parties the right to bring suit if disputes arise over division of property and custody of children.
28. See, for example, Yang Dawen and Long Yifei, Hunyin jiating faxue (Marriage and Family Law) (Beijing, Zhongguo renmin daxue chubanshe, 2006), pp. 116-19; the full text of the revised regulations is provided at pp. 330-33.
29. See Palmer, "Protecting the rights and interests of the elderly."
30. See also Article 18 of the 1996 Law on the Protection of Rights and Interests of the Elderly, which provides: "freedom of marriage of the elderly is protected by law. Children and other relatives may not interfere in the divorce, remarriage or married life of the elderly. The obligations to provide support... does not alter with a change in the marital relations of the elderly person." Zhonghua renmin gongheguo laonianren quanyi baozhang fa, in Guowuyuan fazhi bangongshe (Office of the Legislative Affairs Office of the State Council) (ed.), Xinpian Zhonghua renmin gongheguo changyong falü fagui quanshu (Newly Complied Compendium of Frequently Used Laws and Regulations of the People's Republic of China) (Beijing, Zhongguo fazhi chubanshe, 1999) pp. 1700-05.
31. Michael Palmer, "Marriage reform and population control: Changing family law in contemporary China," in A. Bainham (ed.), The International Survey of Family Law: 2005 (Bristol: Jordan Publishing (for The International Society on Family Law), 1997), pp. 173-201, at p.185.
32. See Michael Palmer, "The People's Republic of China: More rules but less law," in M. Freeman (ed.), Annual Survey of Family Law: 1989 Vol. 13 (London: The International Society on Family Law, 1991, pp. 325-42, at pp. 333-36.
33. Ibid.
34. These provisions, contained in Article 46, have been elaborated in the 2001 Interpretation, which provides that a court may not disallow a divorce application if the petitioner is to some extent also blameworthy (Article 23), and by the 2003 Interpretation, which stipulates at Article 27 that when marriage registration organs are dealing with cases of divorce by mutual consent, it is still possible for one party to seek compensation for the matrimonial misconduct of the other spouse.
35. See "Patriarchy, privacy and protection: Slowly conceptualizing domestic violence in Chinese law," in Natalia In. Erpyleva, Jane Henderson and M. Butler (eds.), Forging a Common Legal Destiny: Liber Amicorum in Honour of Professor W. E. Butler (London & New York: Wildy, Simmonds and Hill, 2005), pp. 786-812.
36. Yang Xueming and Qu Zhi, Xin "hunyin fa" redian jujiao (Focus on the Controversial Issues in the New Marriage Law) (Shenyang: Liaoning huabao chubanshe, 2001), pp. 212-61.
37. Custody is not considered to require new regulation so that the provisions in the Marriage Law and the 1993 "Zuigao renmin fayuan guanyu renmin fayuan shenli lihun anjian chuh zinü fuyang wenti de ruogan juti yijian" ("Several concrete opinions of the Supreme People's Court on the problems of bringing up children in divorce cases handled by the Supreme People's Court"), 3 November 1993 remain the main source of rules. The fundamental principle is found in Article 36 of the revised Marriage Law (Article 29 in the old version of the 1980 Law) which provides that after divorce ordinarily the mother is awarded custody of a child that is still being breast-fed (in the 1993 Opinions the wording is a child who is under two years of age). For older children, custody is a matter of agreement between the two parties. However, if they are unable to reach an agreement and a dispute arises, the court is expected to award custody on the basis of the child's interests, the circumstances of the divorcing spouses, and in cases in which the child is ten years old or above, the wishes of the child (Article 36 of the revised Marriage Law, and Articles 3 and 5 of the 1993 Opinions). The 1993 Opinions at Article 3 envisage a range of circumstances in which custody might be awarded to the father father than the mother. Although neither the revived Marriage Law nor the 1993 Opinions deal with the issue of access for non-custodial parents, the Opinions do allow for joint custody (Article 6). Child support payments for children up to the age of 18 are a function of the child's needs, the financial circumstances of the parents and local cost of living, but ordinarily will not exceed 30% of a parent's fixed incoine (Article 7). For a more detailed analysis of custody provisions at divorce see Michael Palmer, "Women to the fore: Developments in the family law of the PRC," in A. Bainham (ed.), Annual Survey of Family Law: 1994 (Dordrecht: Kluwer (for The International Society on Family Law, 1996), pp. 155-79. Suffice it to say that court awards of custody to women continue to suffer from problems of enforcement, especially in rural areas. The revised Law at Article 38 does, however, confirm the rights of non-custodial parents to visit their children. These are in the first instance a matter of negotiation between the parents and only if they are unable to agree should a court make an order. If visitation by a non-custodial parent leads to a decline in the wellbeing (include mental health) of a child, then the court may order a cessation of the visits until such time as the child's wellbeing is restored.
38. For earlier discussions of the difficulties that the people's courts have faced in resolving betrothal gift disputes, see Michael Palmer, "The People's Republic of China: Problems of marriage and divorce," in M. Freeman (ed.), Annual Survey of Family Law: 1987, Vol. 11 (London: The International Society on Family Law, 1988, pp. 57-79, at pp. 65-66,
39. and Michael Palmer, "Caring I for young and old: Developments in the family law of the People's Republic of China,", in A. Bainham (ed.), The International Survey of Family Law: 2000 (Bristol: Jordan Publishing (for The International Society on Family Law), 2000), pp. 95-107, at p. 100.
40. See Section 10, paragraph 1 of the 2003 Interpretation.
41. For excellent analyses of the tensions between the state and the family, especially as manifested in the countryside, and of the conflicts between the official ideal of a "socialist family" and continued adherence to the values of the patriarchal family see the work of Tyrene White, including "Two kinds of production: The evolution of China's family planning policy in the 1980s," Population and Development Review, Vol. 20, Supplement; "The new politics of population: conflict and consensus in family planning," 1994, pp. 137-58,
42. "Domination, resistance and accommodation in China's one-child campaign," in Elizabeth J. Perry and Mark Seldon (eds.), Chinese Society: Change, Conflict and Resistance (London & New York: Routledge, 2000) and the splendid China's Longest Campaign: Birth Planning in the People's Republic 1949-2005 (Ithaca, NY: Cornell University Press, 2006).
43. Also see the insightful study by Susan Greenhalgh and Edwin A. Winkler, Governing China's Population: From Leninist to Neoliberal Biopoltics (Stanford, CA: Stanford University Press, 2005).
44. "Zhonggong zhongyang, guowuyuan 'guanyu jiaqiang renkou yu jihua shengyu gongzuo wending dai shengyu shuiping de jueding'," issued 2 March 2000, at http://www.chinapop.gov.cn/rkzh/rk/wxzl/ t20040326_2869.htm.
45. "Beijing shi renkou yu. jihua shengyu tiaoli" ("Beijing municipal regulations on population and birth planning"), at http://www.bjfc.gov.cn/Article/Detail.asp?UNID=645, adopted 18 July 2003 and in force 1 September 2003. Since the introduction of the 2001 Law, many of the provincial regulations on family planning have been amended, and the 2003 Beijing Regulations are used here as an illustration of the new generation of such rules.
46. "Waishengbu 'guanyu xiuding renlei buzhu shengzhi jishu yu renlei jingziku xiangguan jishu guifan jiben biaozhun, he lunli yuanze de tongzhi"' ("Notice of the Ministry of Health Regarding the revision of the relevant technical parameters, basic standards and ethical principles related to IVF technology and sperm banks"') (available at http://www.moh.gov.cn/newshtml/3215.htm) at Section 4, Articles 5 and 13 bans surrogacy, thereby overruling a radical provision introduced by the Local People's Congress of Jilin which allowed surrogacy and therefore birth outside marriage. "Jilin sheng renkou yu jihua shengyu tiaoli" ("Regulations of Jilin province on population and birth planning"). adopted 27 September 2002 and in force 1 November 2002, available at http://www.chinalaw.gov.cn/jsp/ contentpub/browser/contentpro.jsp?contentid=co32938550-7.
47. This has given rise to worries within China that Article 17 may be relied on as a defence against accusations of rape within marriage.
48. Ordinarily, the couple will also have to wait four years after the birth of their first child before a second child application will be permitted: See Article 17 of the Beijing Municipal Regulations. Article 17(6) allows a couple to apply for a second child where the husband is a rural resident and he is the only one of several brothers who is able to procreate. In these circumstances he is likely to allow any son born as the second child to be adopted by his brother in the classic form of jiantiao or "double ancestral hall" adoption, which is aimed specifically at continuing a patriline that would otherwise become extinct.
49. The ability of some families to afford an extra child does, of course, have eugenics dimensions: In effect, it allows economically more successful urban residents to enjoy larger families, and this is something that has been considered in the past as a way of helping China to develop a "higher-quality" population. See Michael Palmer, "Protecting the health of mothers and their children? Developments in the family law of the People's Republic of China," in A. Bainham (ed.), The International Survey of Family Law: 1995 (Bristol: Jordan Publishing (for The International Society on Family Law), 1997), pp. 107-16.
50. On these two systems, see Michael Palmer, "Controlling the state? Mediation in administrative litigation in the People's Republic of China," in Larry Backer (ed.), "China: Law, finance and security," Transnational Law & Contemporary Problems, Vol. 16, No. 1 (2006), pp. 165-87.
51. See, for example, Thomas Scharping, Birth Control in China 1949-2000: Population Policy and Demographic Development (London & New York, Routledge, 2003), at p. 155.
52. See, in particular, Judith Banister, "Shortage of girls in China today," Journal of Population Research, Vol. 21, No. 1, pp. 19-45.
53. Thus, Banister reports that China, with a population sex ratio of 106.7 males for every 100 females, is the most extreme example of overall imbalance, adding that among children aged 0-4 "China reports 120 boys per hundred girls" (p. 22) and concluding that demographic analysis shows that "by 1999, girls were permanently lost primarily through sex-selective abortion of female foetuses and secondarily through excess female infant deaths, due to infanticide, abandonment, ill-treatment or neglect of infant girls. The third factor was selective maltreatment of neglect of girls aged 1-3" (p. 27).
54. This development may explain one of the few rays of light in the data identified by Bannister, namely the puzzling fact that "the sex-ratio at 0-4 stabilised for the five years 1997-2001" (p. 27).
55. Josie Liu, "Changes to criminal law under NPC Review," South China Morning Post, 26 December 2005, p. A-4, cols. 2-3.
56. Thus, both the 1991 and revised 1998 version of the Adoption Law robustly declare at Article 3 that "adoption shall not contravene laws and regulations on family planning." For a comprehensive analysis of adoption, abandonment and orphanage care in post-Mao Chini see, in particular, Kay Ann Johnson, Wanting a Daughter, Needing a Son: Abandonment, Adoption, and Orphanage Care in China (St. Paul, MS: Yeong & Yeong Book Company, 2004).
57. "Zuigao renmin fayuan guanyu guanche zhixing minshi zhengce falü de yijian," 2 February 1979, in Liu Suping (ed.), Hunyin faxue cankao ziliao (Reference Materials for Marriage Law) (Beijing Zhongguo renmin daxue chubanshe, 1989), pp. 145-55 at p. 154.
58. An additional safeguard has also been introduced by the 1998 revisions at Article 6, namely, that the adoptant may not suffer from an illness considered inappropriate for the adoption of children. This parallels Marriage Law provisions which prohibit marriage if one party is deemed to be suffering from a disease rendering her or him unfit for marriage (Marriage Law 2001, Article 7).
59. As noted above, n. 33.
60. "Minzhengbu, Zhongguo gongmin zai zhongguo banli shouyang dengji de ruogan guiding" ("Ministry of Civil Affairs, certain provisions [governing the] procedures for registration of adoptions by Chinese citizens in China"), promulgated 1 April 1992, in Liang Wenshu (ed.) Zhonghua renmin gongheguo hunyinfa quanshi (Explanatory Notes on the Marriage Law of the People's Republic of China) (Bejing: Renmin fayuan chubanshe, 1995), pp. 105-08.
61. "Zhongguo gongmin shouyang zinü dengji banfa," approved by the State Council, 12 May 1999 and in force 25 May 1999, in Zhonghua renmin gongheguo guowuyuan fazhi bangongshe (Office of the Legislative Affairs Office of the State Council) (ed.), Zhonghua renmin gongheguo shewai fagui huipian 1999 (Laws and Regulations of the People's Republic of China Governing Foreign-Related Matters 1999) (Beijing, Zhongguo fazhi chubanshe, 2000), pp. 206-13.
62. "Waiguo ren zai Zhonghua renmin gongheguo shouyang zinü dengji banfa," approved by the State Council 12 May 1999 and in force 25 May 1999, in Laws and Regulations of the People's Republic of China Governing Foreign-Related Matters 1999, pp. 213-23.
63. The system was further strengthened by the introduction of "Shouyang dengji dang an guanli zanxing banfa" ("Provisional measures for the administration of adoption registration archives"), promulgated and in force 17 December 2003; available at http://www.mca.gov.cn/artical/content/WJYL_SYDJ/2004812163113.html.
64. Alice Yan, "China's one-child policy questioned," South China Morning Post, 31 December 2005, p. A6, cols. 1-6.