A new law in China that makes it harder for couples to divorce has sent husbands and wives rushing to file applications to dissolve their marriages.
Under the law, which was implemented on January 1 after being passed by the National People’s Congress last year, couples who mutually agree to dissolve their marriage must complete a month-long “cooling-off” period to reconsider their positions. After the 30 days have passed, couples can go to their local civil affairs bureau to apply a second time for their official divorce documents.
Divorce lawyers have been inundated with requests from couples to file for divorce once their 30 days are up.
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In some cities such as Guangzhou, in Guangdong province, the demand for consultations with divorce lawyers is so high that scalpers are charging premium prices online to help couples secure appointments.
Zhong Wen, a lawyer based in Sichuan province who specialises in divorce, says he has already received numerous phone calls from anxious clients concerned that the new law complicates their divorce and compromises their freedom to split.
If one party withdraws from the agreement to divorce before the 30 days are up, the application is cancelled, leaving the other party to apply again and restart the 30-day clock, or to sue for a divorce – a costly and lengthy process.
Zhong said one client was a rubber stamp away from having her divorce finalised when her husband changed his mind.
He added that, even before the cooling-off period was introduced, it was easy for one party to a mutually agreed divorce to change their mind. “Now, with the [30-day] period, the divorce process is too unpredictable,” he said.
When the law was passed in May last year, Chinese citizens criticised the central government for interfering in private matters. More than 600 million comments were posted online using the hashtag “oppose divorce cooling-off period”. It became the top trending topic online, with internet users demanding to know if Chinese people no longer had the freedom to divorce as they chose.
Officials believed the legislation would lower the divorce rate in China, which has risen rapidly, and prevent “impulsive divorces” among young people.
Lockdowns to stop the spread of coronavirus have coincided with a spike in the divorce rate. In 2019, 4.7 million couples said “I don’t” – up from 1.3 million in 2003, when couples were first permitted to divorce by mutual consent without going to court.
“We need a cooling-off period for getting married, not for getting divorced,” one popular commentator said.
The law was passed by the National People’s Congress as part of China’s first Civil Code, which replaced several existing laws covering marriage, adoption, inheritance and property rights.
If a man doesn’t want a divorce, the female domestic-violence sufferer needs to file a lawsuit. That takes time
Dong Xiaoying, lawyer and founder, Advocates for a Diverse Family Network
Ran Keping, a law professor at Wuhan University who discussed the Civil Code with lawmakers before it was drafted, said that policymakers were unhappy with the country’s high divorce rates.
“Even though the freedom to divorce is a basic right of individuals, from a societal point of view a high divorce rate will affect [the country’s] stability,” he said.
The new law does not apply if a spouse files for divorce on the grounds that they are a victim of domestic violence. However, Zhong said the law would still disadvantage women, particularly those without an independent source of income.
“Men can decide whether they want to divorce or retract their application. If a woman wants to and the man doesn’t, the woman will then have to sue, hiring a lawyer at great personal and financial cost. Many women – particularly full-time housewives – aren’t in a position to do this,” Zhong said.
Dong Xiaoying, a Guangzhou-based lawyer and founder of the Advocates for a Diverse Family Network, believes women victims of domestic violence will find it even more difficult than previously to divorce.
“If a man doesn’t want a divorce, the female domestic-violence sufferer needs to file a lawsuit. That takes time,” Dong said. “But China does not provide support for women suffering from domestic violence, such as providing sanctuaries.”
Lu Pin, a feminist commentator living in New York, does not accept the government’s contention that Chinese people divorce impulsively, saying that family values would deter them from doing so. She believes passage of the new law reinforces official opposition to divorce.
Zhong suggested couples could avoid delays in settling their affairs by applying for mediation instead of filing for divorce. In mediation, if both parties reach an agreement, the court issues a document that carries the same weight as a divorce decree.
A second way around the new law is for couples to sign a prenuptial contract on childcare arrangements and the division of property in the event of a split. That way if, during the month-long cooling-off period, one party changed their mind, the contract already in place would streamline the process.
“These ways aren’t to entirely circumvent the new rule, just to mitigate its effects,” Zhong said.
The rights of Chinese citizens to marry and divorce has long been a matter for public debate. Internet users opposed to the new law cite political adviser Deng Yingchao, who was in charge of drafting the previous marriage law in 1950.
Deng said that no conditions should be placed on divorce. She believed that allowing no-strings divorce would benefit oppressed women in Chinese society and if one person in the couple wanted a divorce, it should be granted.
In December, weeks before the law brought in the cooling-off period for divorcing couples, a woman in Shaanxi province, northwest China, filed for divorce after “being beaten by my husband for 40 years”, according to public court documents on the website Chinese Judgements Online.
She told a court she had waited until her children had grown up before asking for a divorce.
The judge refused to grant a divorce, saying the couple had been together for 40 years and would need each other in their later years. “She should cherish her hard-earned happiness in her later years,” the judge wrote on the case file.
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