Supporting Article

A New Marriage Law in China


Before the opening of China, almost all Chinese citizens were employees of the State. Their working units (or farming communes) provided all their social supports, welfare, and housing. As a consequence, marriages often took place among workers within the same working unit to avoid complications with housing allotments, children’s education, and residential registrations. Traditionally, the senior leader of a unit—who often served as a matchmaker as well as a marriage and family mediator—officiated at the marriage which was registered with the unit’s personnel office. The unit kept tabs on birth rates and issued certificates for the right to bear a child in keeping with the allotted birth quotas. Unit leaders also had the duty of a traditional village patriarch making sure that every marriage and family within their units lived happily.

The extended family, rather than the individual, was considered a single social unit. Caring for members within an extended family is, by law, the responsibility of other able family members. Divorce has been highly discouraged for it would upset the delicate distribution of valued resources such as housing, care of the elderly and children, and community equilibrium. Further, divorce was regarded as politically incorrect and was frowned upon. Because of this, China once boasted of being the most stable society with a virtually zero divorce rate—an argument for socialism being superior to capitalism as regards social stability.

During the past twenty years of “Opening and Reform” policy, the average Chinese citizen has been much better off economically and has a greater degree of freedom in choosing careers, housing, way of life, and diverse social expressions. However, with the rapid privatization of state-own enterprises, the traditional working unit has disintegrated and social welfare has shifted from the unit to the individual and local governments. With this shift in the social paradigm, social trends have entered that Chinese authorities describe as decadent habits of the West. These include an increase in divorce, extramarital affairs, keeping mistresses, bigamy, abandonment of the elderly, domestic violence, child and spousal abuse, divorce mediation on property and child custody and various new grounds for divorce. All these new marriage and family developments are beyond what the Family Law (adopted in 1980) can handle; therefore, after a long debate, on the 28th of April, 2001, the Standing Committee of the National People’s Congress of the People’s Republic of China passed a revision of the Marriage Law (adopted in 1980) to reflect the social changes occurring in China in the areas of marriage and family. This Revised Marriage Law (RML) introduces new elements to deal with emerging marriage and family issues in Chinese society vis à vis the rapid social changes.

Highlights of the RML

Mistresses: The RML forbids the cohabitation of a spouse with a non-spousal person. This clause is meant to address the epidemic situation of keeping a mistress, especially among the newly emerged entrepreneur class. There has long been a Chinese tradition of having a concubine—often as a symbol of social status. China’s Communist Party stresses monogamy as part of the equal right (for women) social policy and, in the early 1950s, abolished the institution of concubinage. Prior to the 1980s, few could really afford to have a mistress because there was simply no means for private residency with the exception, perhaps, of the senior national leaders. However, since the mid 1980s, more and more Chinese are engaged in private business and there is an emerging class of multimillionaires.

Thus, is has become fashionable for rich merchants to keep a mistress, as long as they can afford it. Several surveys suggest that few successful businessmen in Shanghai and Guangdong are without a mistress—a symbol of success. Since no marriage takes place, there is no bigamy. Children born out of wedlock are protected by law and enjoy equal rights as citizens; therefore, there may well be a de-facto family composed of a man and his mistress. The birth quota does not apply to them for there is a) no legal family, b) no working unit involved, and c) the capacity to afford the penalty fee if caught. This epidemic situation with mistresses has seriously challenged the monogamous marriage system as the original spouse can hardly do anything to prevent her husband from taking a mistress—there has been no legal ground to prohibit it. Furthermore, wives are often victimized as the husband frequently channels most of the financial resource to the mistress. If a wife can obtain a divorce, she can claim half of her husband’s total assets. However, keeping a mistress does not provide grounds for divorce because it is not bigamy. Thus, this new clause is meant to plug the legal loophole by providing legal grounds for prosecuting those who keep a mistress and making possible grounds for divorce. Now, those who keep a mistress must be careful because their wives can file for divorce with the possibility of receiving half of the couple’s total assets if a divorce is granted.

Property Issues: In the RML, there are clauses that define property (asset) allocations in case of divorce. In the past, there were few privately owned properties for most goods were owned by the State. In the case of a divorce, it could be a messy affair. How do you divide among the individual members of a typical extended family the “right” to live in a state-provided housing unit allocated to a couple with two children and four grandparents? How do you decide on an alimony amount based on salary income when an average Chinese worker’s income is often constituted of the salary and a bonus, and the bonus may often be higher than the salary but not legally part of it? How does the court decide the valuation of potential income from any patent rights or from business capital gains when both these types of wealth have previously been non-existent in China? These new issues are arising as China changes its economic structure —from a planned to a market economy, from state-owned to privately-owned enterprises. The RML attempts to update China’s legal framework to reflect the socioeconomic changes swiping across the country.

Domestic violence: The RML also contains clauses to prohibit domestic violence, abuse among family members and abandonment. Domestic violence has existed in all civilizations and Socialist China is not immune to it. However, in the past strong political pressure existed to conform to sociopolitical norms, such as the preservation of the institutions of marriage and the family, mutual support and tolerance among family members as politically correct.  As the political pressure to conform lessens and the desire for individual rights and expression increases, suppressed social behaviors emerge such as divorce, homosexuality, anti-social behavior, domestic violence and extramarital affairs. In the past, leaders of work units or local party branches mediated marriage incompatibility using political pressure that forced couples to remain together and even to tolerate a dysfunctional marriage or family. This was based not on legal rights but on the traditional role of a patriarch as well as on political authority. Today, such mediation is often less effective than in the past, and family members trying to resolve such differences by their own means often leads to violence stemming from long suppressed grudges. The RML is meant to protect the victims. It provides legal grounds for the victim to prosecute the offender for compensation and for the government (the Prosecutor’s Office and the Public Security apparatus) to intervene legally. Without such a clause there is little the Government can do in a domestic violence case for, traditionally, family matters have resided within the family and outsiders cannot interfere.

Abandonment: Abandonment is becoming an increasing concern as mobility increases and familial tensions rise. In China, the concept of marriage covers the union between two families, not just two individuals. In the Marriage Law, it also includes the rights and obligations of members within the family. For example, by law children are obligated to care for their parents and the same is true among siblings. (An older brother would care for a younger sister should the parents not be available.) Therefore, the extended family is the basic social welfare unit of Chinese society, founded in tradition and enshrined in the Marriage Law. With the increase in the population’s mobility—over 100 million are migrant workers—many are not living with their families. They simply abandon their original families as they establish new ones in the cities or towns where they have migrated to work, and where they have found a new lifestyle and wealth. The original family members, often in poor and backward rural areas, loose their means of financial support. Often they hear nothing from their family member who now works in a city and has just disappeared.

The old Marriage Law stated that obligation was between parents and children and between siblings. The RML extends the obligation to three generations and widens the lateral relational network as well as the type of support (no longer defined by age but by ability to earn a living). For example, grandchildren have an obligation to care for grandparents. Brothers and sisters have the obligation to care for their siblings if due to a handicap they are unable to make their own living. These obligations extend even to parents who have re-married (there is obligation to care for a biological parent even though he/she is re-married). In short, the Government codifies family as the basic social support unit and, from the State welfare system, will care only for those in need who have exhausted all other means of support from their extended families.

Divorce: The RML also allows for increased grounds for divorce. Under the old law, grounds for divorce were arbitrary and decided upon by the work unit or court.  However, these decision makers had conflicts of interest that influenced against granting a divorce. Thousands upon thousands of dysfunctional marriages have resulted. All too often these marriages have caused suffering stemming from domestic violence, extramarital affairs, an increase in violence and husbands taking mistresses. In the RML, there is a clear listing of grounds for divorce such as bigamy, non-spousal cohabitation, domestic violence, drug or gambling addictions, separation for more than two years, prolonged disappearance and so on. These grounds, which reflect current legal practices in other countries, offer a way out for family members suffering in a dysfunctional marriage or family system.

The RML is a step the Government has taken to cope with the changing socioeconomic dynamics in China. Many experts argue that this RML will make divorce easier further corrupting the institutions of marriage and the family. Others argue that there is more social damage if people are forced to live in a dysfunctional family or a marriage that is beyond salvage. The intent of the RML is to protect victims in a fair and just way. No matter how the arguments go, there is clearly a strong challenge to the traditional marriage and family institutions in China as Chinese enjoy more wealth and freedom. Such a challenge will surely intensify as China enters the global economic network via WTO accession.

Non-governmental Agencies

In addition to the legal realm, as demonstrated by the RML, there are many agencies in China that are working closely with these issues. One of the most vocal groups is the Women’s Federation of China that has been constantly lobbying for more protection for female victims of divorce, violence and abandonment. There are hotlines, legal aid, counseling centers and shelter houses in major cities, but these resources are far from sufficient. There are increasing numbers of NGOs in China focusing on these issues—mostly in urban areas. However, there are few resources to help families in rural areas where many family tensions—often violent ones—exist. It may, perhaps, be an opportunity for many ministerial groups to share their experience, resources and values in family and marriage ministry and provide direct assistance to those in need in China. Currently, many Hong Kong-based Christian social services centers have numerous joint programs within China (some with Christian-based groups such as the YMCA, others directly with local churches in China, and yet others with government or civil social service group linkages) that provide training and services on marriage and family issues. Such joint ventures are just beginning and both sides are becoming familiar with each other’s systems and values. There is also an increasing openness for Chinese authorities to incorporate outside social resources.

Considering the Future

Will social issues such as increasing family and marriage break-ups, single parents, reconstituted families, homosexuality and children’s rights, so hotly debated in the West, soon become issues in Chinese society? What can Chinese society do to confront such drastic social changes? Can some of the lessons and experiences gained in the Western world become paradigms for Chinese society to consider? As China stands at this historical juncture, it is important that she ask: What are the core values of a family and of a stable and civil society? Along with its economic values, should China adopt (as some Western political powers and NGOs strongly advocate) the liberal social views of the West—such as individual rights, freedom and choice—as the basis for Chinese social values in the future? Or, should China hold on to and revitalize its traditional cultural values on society and family with less stress on individual rights and freedoms and more on communal and familial interests? Would this preserve the social stability that seemed to work for more than two thousand years until modern times? Does Christianity have anything to offer in terms of social values that would contribute to the building of the new Chinese society that is in the making? Would such offerings be practical and realistic taking into consideration the seeming failure of Christianity to confront the liberal social trends in the West on marriage and family issues? All these newly emerging questions challenge not only our ministerial outlook on China, but also our very own convictions on the fundamental value of marriage and family regardless of where we are.

Image credit: china is obsessed with wedding by HI TRICIA! 王 圣 捷 via Flickr.

Kim-kwong Chan

The Rev. Kim-kwong Chan, PhD, DTh, is the Executive Secretary of the Hong Kong Christian Council. View Full Bio