Seventy Years of Marriage and Family Law in China: Achievements, Challenges and Prospects

2.3.1 Refinement of Marriage and Family Law

The amendment in 2001 further refined the marriage and family law. Several important improvements are worth highlighting. Firstly, consolidating the monogamy and maintaining family stability. In 1996, the number of divorces exceeded more than one million couples and the divorce caused by extramarital affairs accounted for about one-third (Zhou 2019), seriously damaging the monogamous marriage and family stability. To curb bigamy, adultery, and other behaviours violating monogamy and to stabilize family relations (Chen 2003), the 2001 Marriage Law added that “no one who has a spouse may cohabit with any other person”, “husband and wife shall be truthful to and respect each other”, and “family members shall respect the old, take good care of the underage, and help each other so as to maintain an equal, harmonious and civilized marriage and family relationship.”^[12] These new provisions clarified the responsibilities between spouses and family members and highlighted ethical features of family law (Wu 2009). It was the inheritance and development of the fine traditional Chinese culture.

Secondly, prohibiting domestic violence and protecting the personal rights of family members. One main reason was that the increasing number of domestic violence cases attracted social attention and widespread concern. Compared with the 1980s, domestic violence cases increased by 25.4 % in the 1990s (Zhu 2019). Punishing and eliminating domestic violence became an important part of protecting women’s human rights (Li and Feng 1995). Besides, China ratified the Convention on the Elimination of all Forms of Discrimination Against Women in 1980. Prohibiting domestic violence by law is an international obligation that China should implement (Yang 2001). Therefore, legal regulation of domestic violence became a much-discussed topic in marriage law revision. Anti-domestic violence provisions were inserted in the 2001 Marriage Law.^[13] It was the first time that domestic violence was prohibited in basic law and was of great significance for further protecting the personal rights of family members and creating a social environment against domestic violence (Wu 2011). After that, protecting women, children, the elderly, disabled persons, and patients with mental disorders from domestic violence was inserted into relevant laws.^[14] In December 2015, the Anti-domestic Violence Law of the PRC was passed. It was the first national anti-domestic violence law in China (Wu and He 2016) and a breakthrough in addressing domestic violence that has long been considered a private matter.

Thirdly, determining the scope of marital property and refining the agreed marital property system. With the implementation of the Reform and Opening-up and the development of the socialist market economy, the amount and type of marital property increased, couples’ concepts of personal property enhanced, and the legal status of marital property became increasingly prominent (Chen 2010, pp. 238–239). However, the marital property system in the 1980 Marriage Law couldn’t meet the growing requirements of people to protect personal property ownership. This is mainly reflected in the following two aspects. On the one hand, the scope of joint property of husband and wife is too large, which is detrimental to protecting the personal property ownership of husband and wife. According to the 1980 Marriage Law, if the couple didn’t reach an agreement on the property acquired after marriage, all the property acquired after marriage was joint property. Due to the subordinate status of the agreed marital property system and the influence of the concept of “unity of husband and wife”, it’s difficult for the couples to make a written agreement on the property acquired after marriage (Wang 1997). On the other hand, the provision of the agreed marital property in the 1980 Marriage Law is too simple to operate in practice (Li 1992). The 1980 Marriage Law only stipulated that the property acquired by husband and wife during their marriage should be in their joint possession “unless otherwise agreed”, without stipulating specific contents of agreed marital property. Therefore, the marital property system was revised mainly from the following two aspects. First, the 2001 Marriage Law newly listed the scope of joint property and personal property of husband and wife respectively and narrowed the scope of joint property of husband and wife.^[15] Second, it stipulated more detailed regulations on property agreements between husband and wife, including the scope, content, form, and legal effect of the property agreement.^[16] The refinement respected the property agreement between husband and wife and highlighted the protection of their personal property rights. The value orientation of the marital property system has changed from the emphasis on the protection of social interest to the balance between individual interests and social interests (Yang 2002).

Fourthly, improving the divorce system. The divorce rate in China was only 0.35 ‰ in 1980 but raised to 0.96 ‰ by 2000 (Xu and Ye 2002). The number of divorce cases due to bigamy, cohabitation with another person, family violence, maltreatment, and desertion of spouses increased and became the main reasons for divorce in some areas. Due to the lack of relevant provisions in the 1980 Marriage Law, if the divorce causes damages to the non-fault spouse due to the above faults, the spouse at fault can’t be held accountable for compensation (Chen 2002). To further protect the rights and interests of parties related to divorce and fill legal loopholes, the 2001 Marriage Law refined the divorce system. The 2001 Marriage Law added legal circumstances that lead to the nonexistence of mutual affection, such as bigamy, cohabiting with another person, family violence, maltreatment, separation for 2 years, and so on.^[17] Most importantly, the newly created divorce economic compensation^[18] recognized the value of housework and was a breakthrough in legislation about gender (Peng and Li 2010). Additionally, divorce damage compensation^[19] was inserted into the 2001 Marriage Law and aimed to compensate damages to the innocent party and to prevent and punish illegal acts (Wu 2009). Moreover, the divorced parents who didn’t directly raise their children were granted visitation rights.^[20]

2.3.2 Family Justice Reform

According to the Gazette of the Supreme People’s Court of the PRC (2015), the people’s courts accepted approximately 1.76 million family and inheritance cases of first instance in 2015, accounting for approximately 17.4 % of civil and commercial cases of first instance (10.1 million) accepted nationwide in 2015. Family cases have the characteristics of rapid growth, large numbers, new types, and difficulty in legal application, causing the court to encounter many new problems when using the general civil dispute resolution mechanism to deal with family cases, which is unfavourable for effectively solving family disputes and stabilizing family relationships (Cao 2016). To change the traditional model and working mechanism of family trial, explore trial paths to properly resolve family disputes, and protect the interests of the parties (Wang 2018), the Supreme People’s Court issued the Opinions on Conducting the Pilot Program of the Reform of the Mode and Working Mechanism of Family Trial in April 2016, which required to select 100 courts to conduct this Pilot Program for two years from 1 June 2016. Some achievements were made: (i) The concept of family trial has gradually changed. Judges now pay more attention to substantive justice, differential protection of vulnerable groups, and restoration of family relationships.^[21] (ii) Diversified dispute resolution mechanisms are rapidly established. In 2017, the Supreme People’s Court took the lead in establishing a joint meeting system for the reform of family trial methods and working mechanisms involving 15 departments.^[22] More than 80 % of the pilot courts have built joint meeting mechanisms and reached cooperation with local civil affairs departments, women’s federations, and other relevant departments (Du 2018a). (iii) The working mechanism of family trials is constantly innovating. The pilot courts established new mechanisms, such as psychological counseling and intervention, family investigations, pre-litigation mediation, and post-case return visits.^[23] (iv) The professional level and supporting facilities of family trials are greatly improved. Nearly 60 % of the pilot courts set up professional family mediation teams and about 90 % of the pilot courts built specialized family courts (Du 2018b). In July 2018, the Supreme People’s Court issued Opinions on Further Deepening the Reform of Modes and Working Mechanisms of Family Trials (for Trial Implementation) for further deepening the reform of family trials. This is not the end of the national family trial reform, but a brand-new beginning (Ding 2020). Family justice reform is an ongoing project and needs to be constantly advanced.

2.4.1 Systematic Structure: Regression and Synergy

The systematic structure includes external structure and internal structure (see Table 2). In relation to external structure, the Civil Code incorporates the General Principles of the Civil Law, Property Law, Contract Law, Guarantee Law, Marriage Law, Adoption Law, Inheritance Law, Tort Law, and some judicial interpretations. Its Book Five makes the marriage and family law return to the civil law system and becomes an indispensable part of the Civil Code. With regards to the internal structure, the Civil Code merges the Marriage Law and the Adoption Law into Book Five, which systematically realizes the return of the Adoption Law to the marriage and family law system and enriched its framework (Wang 2023). This improvement forms a five-chapter system of marriage and family law – General Rules, Marriage, Family Relations, Divorce, and Adoption. The Civil Code ends the marriage and family legislation model that is learned from the Soviet Union, and marriage and family law reach a new level in terms of the legislative concept and technology (Li 2020).

2.4.2 Institutional Contents: Further Development

The Civil Code further develops the contents of marriage and family law. The first is to strengthen family protection and family civilization construction. Two important provisions are inserted into the Civil Code: “Marriage and family are protected by the State”^[26] and “Families shall establish good family values, promote family virtues, and pay close attention to the construction of family civilization.”^[27] These provisions inherit the marriage and family virtues of the Chinese nation. With the weakening of family functions including taking care of the elderly, childcare, and family education (Ding 2016), emphasizing the responsibility of the State to protect family is not only a requirement of the times but also a reflection of China’s traditional culture that values family. It is in line with the spirit of the Universal Declaration of Human Rights, which states the family is entitled to be protected by the State.^[28] To carry forward the Chinese nation’s fine tradition of attaching importance to family education, guiding the whole society in emphasizing family education, the Law on Family Education Promotion was passed in October 2021. Elevating China’s traditional excellent family virtues and family civilization into law embodies the characteristic of the co-governance of morality and law in marriage and family relations (Xia 2020b), which is beneficial for carrying forward the Chinese traditional culture and maintaining family stability.

Besides, the cooling-off period was inserted into divorce by litigation. One main reason is the high divorce rate. China’s divorce rate has kept growing from 0.96 ‰ in 2000 to 3.4 ‰ in 2019 (see Figure 1). Another is impulsive divorce. Divorce by registration and divorce by litigation are two ways of divorce in China.^[29] Compared with divorce by litigation, divorce by registration is easy and low-cost. The Civil Code adds a cooling-off period in divorce by registration.^[30] The main functions are to ensure that the couples have enough time to calmly consider whether to divorce and how to deal with matters after the divorce within the 30-day cooling-off period, so as to prevent impulsive divorce (Ma 2020). After the cooling-off period has been implemented, the divorce rate decreased to 2 ‰ in 2021 and 2022. To fully examine the impact of the cooling-off period, it is essential to observe for a longer period (Song and Li 2022). In addition, from my perspective, there is no need to set up a cooling-off period in divorce by litigation because mediation can serve a similar function. Mediation is a compulsory procedure in divorce by litigation and the process of mediation also gives the parties sufficient time to calmly think about whether to divorce (Guo 2022).

Figure 1:

Number of divorce in China 2000–2022. Source: NBSC, China Statistical Yearbook 2022 and China Statistical Yearbook 2014; Ministry of Civil Affair of PRC, The Statistical Bulletin on the Development of Civil Affairs in 2022.

Moreover, the Civil Code refined the adoption system. (i) The Adoption Law stipulated that minors under the age of 14 could be adopted. However, this scope of adoptees was too narrow, causing difficulty in the application of the law and some minors losing the opportunity to reintegrate into families (Xue and Xie 2020, p. 470). So the scope of adoptees is extended from those under the age of 14 to all minors meeting legal conditions in the Civil Code.^[31] It improves the scope and intensity of protecting the interests of minors by adopting more eligible minors (Xia 2020a, 2020b). (ii) The Civil Code adds two restrictive conditions for adopters to protect the best interest of the adoptees. First, the adopter should have no “criminal records that are not conducive to the healthy growth of the adopted person”.^[32] Second, if a single adopter adopts a child of the opposite sex, the adopter shall be not less than 40 years older than the adopted child unless otherwise specified.^[33] In general, regardless of men and women, the age gap between the adoptees and adopters without a spouse need to reach 40 years of age or more to avoid using the adoption to achieve illegal purposes. Strict requirements on the age gap between adoptees without spouses and adoptees of the opposite sex are based on the legislative considerations to protect adoptees (Xue and Xie 2020, p. 529). (iii) Regarding the procedural conditions, the Civil Code adds the adoption assessments. The civil affairs department of the people’s government shall evaluate the adoption.^[34] This is an mechanism that has been implemented by the civil affairs department for several years, and the purpose is to avoid or reduce the occurrence of negative adoption relationships as much as possible and achieve the best interests of the adoptees (Xue and Xie 2020, p. 549).

The Civil Code also amends other contents of family law, such as deleting provisions relating to family planning, expanding the scope of application of divorce economic compensation^[35] and adding the confirmation and denial of parent-child relationship.^[36]

In conclusion, remarkable achievements have been made over the past 70 years. These include significant progress in equality between men and women, greater freedom of marriage and divorce, fairer and clearer distribution of rights and responsibilities between family members, increased attention to the rights and interests of children, women, the elderly, and persons with disabilities, and increasing concern on family stability and family civilization. However, compared with some Western countries, the reform of marriage and family law in China is relatively conservative and cautious. It fails to respond to some needs for social changes. Chinese marriage and family law is also facing some challenges.

3.2.1 The Deepening of Population Aging

Population aging is the most basic national condition of China in the 21st century. Driven by rising life expectancy and declining fertility rates, the population aging is becoming more and more serious. The proportion of the population aged 65 or over increased from 6.96 % in 2000 to 14.9 % in 2022,^[40] which means China has entered an aged society.^[41] And the pace of population aging has become much faster since the 21st century. Furthermore, the old-age dependency ratio has risen from 9.9 % in 2000 to 20.8 % in 2021 (see Figure 4). This suggests that per 100 working-age population was only responsible for supporting 9.9 elderly people in 2000 but was responsible for supporting 20.8 elderly people in 2021, that is, one elderly person needed to be supported by five working-age population in 2021. The increase in the old-age dependency ratio indicates that the working-age population and the overall economy face a greater burden in supporting elderly people. One core issue of population aging is the reduction in the number of labor force population. Data from the Seventh National Census in 2020 shows that compared with the Sixth National Census in 2010, the working-age population aged 15–59 decreased by more than 45 million people within 10 years.^[42]

Figure 4:

Old-age dependency ratio in China 2000–2021. Source: NBSC, China Statistical Yearbook 2022.

The deepening of population aging brings challenges to family law. For instance, how to protect the rights and interests of the elderly in remarriage and cohabitation relationships, how to implement the duty of spiritual support to the elderly parents which was inserted into the Law on the Rights and Interests of the Elderly in 2012,^[43] how to improve the adult guardianship system to better protect the rights and interests of the increasing elderly people, how to improve family law to protect the elderly from abuse and neglect, and how to reduce or remove barriers for the elderly to participation in social activities. For instance, the age limitation is prevalent in society, including age limitation on employment and participation in other social activities (Guo 2023a). The solution to the issues related to population aging requires further research and the improvement of family law and other related laws.

3.2.2 Fewer Children

In China, the total fertility rate dropped to 1.3 in 2020 (Zhai et al. 2022), far below the replacement population level of 2.1. It failed to achieve the expected development goal that the total fertility rate in 2020 was 1.8, which was proposed by the State Council of PRC in the National Population Development Plan (2016–2030). What’s more, entering the 21st century, the birth rate and natural growth rate of mainland China have shown a clear downward trend in general. By 2022, the birth rate and rate of natural increase dropped to the lowest values, at 6.77 ‰ and −0.6 ‰ respectively.^[44] This is the first negative population growth since the founding of the PRC except in 1960 and 1961.^[45] In other words, it is the first negative growth in population over the last 61 years. China has a risk of stepping into the “low fertility trap” (He and Zhang 2022). In addition, the family size in China has become smaller. Since the 21st century, the average household size decreased from 3.4 persons per household in 2000 to 2.8 persons per household in 2021.^[46] The proportion of one-person (25.3 %) and two-person (29.8 %) households was more than 50 % in 2020.^[47] In consequence, the function of traditional intergenerational care is weakened as family size shrinks and childcare issues become a key factor in improving birth rates. What’s more, the empirical investigation that I conducted in 2022 found that less than 7 per cent of respondents wanted to have three children under the three-child policy, and the four most important reasons why respondents didn’t want to have three children are: limited economic conditions, shortage of childcare, high costs of raising children, and concerns about career development (Guo 2023b).

Chinese family law is facing the dual challenges of population aging and low birth rates in the 21st century. How to respond to these challenges is an important topic worthy of in-depth study. In terms of low birth rate, issues worthy of attention may include but not limited to: Should the legal age of marriage in the Civil Code be adjusted to allow women aged 18–20 and men aged 18–22 to register for marriage, should the limitation on the number of children that people want to have be deleted from the Population and Family Planning Law (2021 Amendment) (the New PFPL), and how to legally regulate and promote the development of childcare services?

3.4.1 Divorce

Divorce is the determination of marriage relationship, which may pose substantial challenges to family stability. With the changes in people’s marriage and family concepts, improvement of women’s economic independence, wide acceptance of divorce, and so forth, divorce has become prevalent. The emotional harm caused by divorce to the parties, children, and families should not be underestimated. Property division disputes, child custody disputes, and debt settlement disputes often occur during divorce. But it should be acknowledged that divorce is also a dissolution of a “dead marriage” and so is a blessing for some parties involved (Guo 2022). After the enforcement of the cooling-off period, the divorce rate decreased in 2021 and 2022. However, the total number of divorces is still very large, exceeding 2.9 million couples in 2022.^[52]

The prevalence of divorce is a challenge for family law to avoid rash divorce and maintain family stability. The large number of judicial divorce cases also leads to high trial pressure and challenges for the court. According to the Gazette of the Supreme People’s Court of the PRC (2022), divorce cases accepted by courts of first instance (1.42 million) accounted for 79 % of all family and inheritance cases accepted by courts of first instance (1.79 million) in 2022. Furthermore, divorce cases become more complicated. For example, the types of property involved in divorce are becoming increasingly diverse, mainly from the previous pots, pans, appliances and furniture to today’s houses, cars, stocks, wealth management products, shares of the company, intellectual property, insurance, and so on, and the value of the properties is shifting, making it difficult to divide the properties (Chen 2020).

3.4.2 Remarriage

A large number of divorces lead to increase in remarriage. Compared with first-married families, remarried families may face more complicated family relationships, may be more sensitive to property, and may be prone to disputes due to child rearing and property disposal, especially for remarried couples who have minor children in their previous relationships. Elderly people generally may have some property and have their own adult children, so their remarriage is more likely to have disputes over property issues. Such disputes include property division when divorce^[53] and inheritance disputes after the death of one or both parties.^[54] Both the number and proportion of remarriages have increased significantly since the 21st century (see Figure 5). The number of remarriages only accounted for 6.5 % of the number of first marriages in 2000, but it increased to 32 % by 2021.

Figure 5:

Number of marriages in China 2000–2021. Source: NBSC, China Statistical Yearbook 2022 and China Statistical Yearbook 2014.

Remarriage is beneficial to mutual care and support between the remarried parties. But more detailed regulations should be made to solve possible disputes existing in the remarried family to protect the legitimate rights and interests of both parties and their children. The possible issues of remarriage are a challenge to family law, particularly for disputes arising from the remarriage of elderly people under the background of the deepening of population aging and prevalence of divorce in China. A study suggests that the separate property system, rather than common property system, is an effective way to improve the legal protection of property rights for remarriage of elderly people (Wu 2018.).

3.4.3 Cohabitation

Cohabitation^[55] becomes increasingly common in China. According to the stratified and equal-probability random sampling survey in 25 provinces conducted by the Institute of Sexuality and Gender of Renmin University of China, the proportion of unmarried people aged 18 to 61 cohabiting in China was 21.4 % in 2000, 24.6 % in 2010, and 31.4 % in 2015 (Zhang and Pan 2016). Although women, children and other vulnerable parties in the cohabitation may suffer harm (Li 2020), the Civil Code and other laws still have no special provisions to protect the rights and interests of the cohabitants. One party, who performs more duties in raising children, taking care of the elderly or assisting the other party in his or her work, doesn’t have the right to claim compensation from the other party in the case of separation (Yang and Lin 2020). If one party has difficulty in supporting himself or herself, the other party who can afford it can refuse to provide appropriate assistance when they break up. Both parties also don’t have succession rights to each other.^[56] But if they are married couples, they are entitled to the above-mentioned reliefs and succession rights.^[57]

In addition, the law tends to protect reproductive rights of married couples, while the reproductive rights of cohabitants are not equally protected. The New PFPL stipulates that “citizens” have the reproductive rights,^[58] however, it also provides that “one couple may bear three children”,^[59] and “the couples who bear children … may receive the rewards of extended maternity leaves or other welfare treatments.”^[60] Apparently, the law vests in married couples the right to receive rewards for extended maternity leave or other welfare benefits, but these are not available to cohabitants in law.

The prevalence of cohabitation is a great challenge for family law to protect the rights and interests of people who are unwilling to marry but want to live together, especially for the weaker party. With the deepening of the population aging, many elderly people also choose to live in cohabitation. Some researchers suggest making the cohabitation law to address the challenge of cohabitation (Chen and Wang 2008; He 2021).