675 Transforming Family Law in Post-Deng China:Marriage,Divorce and Reproduction* Michael Palmer ABSTRACT This article considers the principal changes in family law in the People's Republic of China during the post-Deng period.The developments that have occurred during the period of review have been notable for their pace and their contribution to a growing legal sophistication in China's corpus of family law.They expand on a series of major reforms in family law documented in my earlier China Quarterly article.Overall,it is in the area of divorce that the most dramatic changes have taken place in family law over the past decade. This article examines the continuing evolution of family law in the People's Republic of China (PRC).Since the publication in 1995 of an earlier China Quarterly article on post-Mao Chinese family law,the legal framework for family life has been reformed in order,inter alia,to deal with problems encountered with the regulatory system built up in the 1980s and early 1990s, and to respond to changes taking place in Chinese society.Two legislative developments are highly significant.First,the Marriage Law was revised in 2001,2 and greater judicial attention then given to its implementation,especially I thank participants in the conference on“Developments in Chinese Law:the Past Ten Years'"for their helpful comments on the draft version of this article.Responsibility for any remaining errors is mine alone. 1 Michael Palmer,"The re-emergence of family law in post-Mao China:marriage,divorce and reproduction,"in Stanley Lubman(guest ed.),“Law in China Under Reform,"The China Quarterly. No.141(1995),pp.110-34:republished in Stanley B.Lubman (ed.)China's Legal Reforms (Oxford: Oxford University Press,1996),pp.110-34. 2 For details see,for example,Ma Yinan,Hunyin jiating fa xinlun (New Discussions on Marriage and Family Law )(Beijing:Beijing daxue chubanshe,2002);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);Yang Xueming and Qu Zhi,Xin "hunyin fa"redian jujiao (Focus on Controversial Issues in the new Marriage Law)(Shenyang:Liaoning huabao chubanshe,2001);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);Ma Yuan (ed.),Xin hunyin fa:anli pingxi (The New Marriage Law:Case Analysis) (Beijing:Renmin 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. CThe China Quarterly,2007 doi:10.1017/50305741007001658
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676 The China Quarterly,191,September 2007,pp.675-695 in relation to divorce.'These changes were followed in 2003 by a further revision of the rules governing marriage (and divorce)registration.Secondly,a synthesizing,national code of family planning was finally introduced,also in 2001,and then extended in 2002 by State Council Measures on the Administration of Social Upbringing Charges.Other notable developments include the 1998 revision of the Adoption Law'and the continuing evolution of a corpus of social protection law(shehui baozhang fa社会保障法)including in particular the introduction of a law protecting the rights and interests of the elderly in 1996 and a revision of the 1992 Women's Protection Law in 2005.8 A number of the changes mentioned above and considered in greater detail below are also related to shifting policies and practices regarding the role of various forms of dispute process-especially“mediation”(tiaojie调节)-in Chinese social life in general and intra-familial disputes in particular. Three specific aspects of family law are focused on:marriage,divorce and reproduction.These are the core of PRC "family law."This focus does not accord exactly,however,with the "official"view in China,which regards rules and issues of family planning as largely falling outside family law,so that,for example,even compendia of rules on family law matters intended for judicial practice omit direct reference to legislation relating to reproduction and associated issues.The present article and its predecessor,however,both assume that planned births and population policies and rules are so critical for 3 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 PRC [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 Low)(Beijing:Zhongguo fazhi chubanshe,2006)at pp.14-18 and pp.18-22 respectively.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 fali guifan (Judicial Interpretations of the Marriage Law and Relevant Legal Provisions)(Beijing:Renmin fayuan chubanshe,2001);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). 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. 5 "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. 6 "Shehui fuyang zhengshou guanli banfa,"in ibid.at pp.135-37. 7 "Zhonghua renmin gongheguo shouyang fa,"revised and in force 4 November 1998.in A Complete Set of Rules on the Marriage Law,pp.23-27. 8 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 Low:1999(Dordrecht:Kluwer (for The International Society on Family Law).1999).pp.95-107,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.I and 2 (2007),pp.151-77. 9 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).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)
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Transforming Family Law 677 family life in contemporary China that their inclusion is essential.The current study therefore examines developments in this area,as well as in another and related mode of reproduction and recruitment to the family,namely adoption.It thus considers the nature and significance of the legal changes that have taken place in these four dimensions of family law since 1995.While highly important changes have occurred in all four areas,it is probably in the law of divorce that the most significant developments have occurred. The Reforms of 2001 The socio-political contexts within which the two most significant statutory developments since 1995 took place offer a strong contrast.On the one hand, much publicity proceeded and accompanied the revision in 2001 of the Marriage Law(hunyin fa婚姻法)I98O,with often heated debate among those doing the revision,and also a considerable degree of openly expressed controversy over some of the key issues.0 These included the nature of marriage,the notion of a “relative'(gingi亲戚)，and various aspects of divorce including the grounds for divorce,property and custody rights,compensation for morally blameworthy conduct leading to divorce,and the appropriate responses to domestic violence. Within these discussions,it was possible to discern shifting ideas about appropriate boundaries between the public sphere and private life -in particular,the appropriateness of state intervention in family matters.On the other hand,remarkably little fanfare surrounded the promulgation of the Population and Birth Planning Law(renkou yu jihua shengyu fa人口与计划生育 later the same year.In formal,legal terms this is perhaps best explained by reference to the different legislative tracks that the two developments were apparently assigned.Although both legislative advances were promulgated by the Standing Committee of the National People's Congress,the Marriage Law revisions took place within a procedural framework clearly informed by some of the reforms encouraging openness and greater public consultation introduced by the 2000 Law on Legislation.In contrast,the family planning code involved a much more restricted approach,with virtually no public deliberation.This lack of openness reflected the politically-sensitive nature of population control,and such conservatism should be borne in mind,for example,when making judgements about the significance of family law in post-Deng China for an emerging civil society. Marriage As indicated in the earlier China Ouarterly article,in the PRC marriages are concluded in law by registration,not by celebration.The legal requirement of 10 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)
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678 The China Quarterly,191,September 2007,pp.675-695 registration must be fulfilled,but in practice is often ignored by couples and their families,who consider celebration of marriage in traditional style more important.This has resulted in various difficulties including,in particular, official treatment of unregistered unions and enforcement of family planning rules. The system of compulsory marriage registration remains in place today,but during the past few years attempts have been made to respond to pressures of legal practice and social change,and to give greater recognition to the view that marriage is a private process.Changes were introduced by,first,the 2001 revision to Chapter 2 of the Marriage Law;secondly,by two Interpretations from the Supreme People's Court on the revised Marriage Law in 2001 and 2003 respectively;thirdly,by the 2003 revision of the rules on the processes of marriage and divorce registration in which a new meaning for "marriage registration"is promoted (symbolically indicated by discarding the term "administration"from the rules'title);and finally,the 2005 revision of the Women's Protection Law.13 As a result,modifications have been made to the legal conditions of capacity for marriage.Reflecting medical advances in China,leprosy is no longer explicitly characterized as a condition rendering a person unfit for marriage.In addition,difficulties in identifying and dealing with invalidity of marriage are addressed by provisions in the revised Marriage Law at Articles 10 and 12.In particular,a marriage is characterized as void(hunyin wuxiao婚姻无效)ab initio if the minimum legal ages of marriage have not been attained (albeit with rectification possible if the union has not been registered:see below),one of the intending spouses is already married,or the proposed marriage falls within the prohibited degrees. Unregistered "marriages"between parties in which at least one of the intending spouses is underage have been a widespread problem in post-Mao China,reflecting not only continued adherence to traditional ideals that regard marriage as a matter of celebration rather than registration but also social pressures for early wedlock in order to commence reproduction.The authorities' response has been increasingly to impose strict requirements of registration and to limit judicial recognition of unregistered unions as "de facto marriages" (shishi hunyin事实婚姻).However,.this restrictive approach,closely associated with family planning policy,was criticized during the debates on revision of the Marriage Law,and was in particular considered to be inimical to the interests of rural women.As result,the revised Marriage Law permits retrospective registration:"in the absence of marriage registration,the man and the woman 11 Palmer,"The re-emergence of family law in post-Mao China,"at p.118. 12 Marriage Registration Regulations,2003 replacing the Regulations on the Administration of Marriage Registration,1994.See further below,n.19. 13 That is,"Zhonghua renmin gongheguo funui 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. 14 Marriage Law of the People's Republic of China 1980.as revised 2001,at Article 7
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Transforming Family Law 679 should (vingdang)go through registration procedures."5 The 2003 revised Marriage Registration Regulations provide at Article 8 for a process of “remedial marriage registration'”(buban jiehun dengji补办结婚登记)for unregistered unions.In addition,the courts have the jurisdiction to deal with cases of void marriage,and their decisions in such cases are then filed with the relevant marriage registration organs (Article 16).The revised Marriage Law itself affords little scope for retrospectively legitimating a union as in many cases the problem is that the parties commenced their union when one partner (or both)was underage.16 In order to deal with this problem,the 2001 Interpretation at Article 4 allows for recognition of unregistered relationship in which one party (or both)was underage:the union may be characterized as one of lawful marriage from the moment when the parties attain the age of capacity to marry.Moreover,when a couple in an unregistered relationship seek divorce,then the relationship may be characterized as de facto marriage if both parties satisfied the substantive conditions for marriage prior to promulgation of the Regulations on the Administration of Marriage Registration on 1 February 1994.In cases in which one or both parties only attained the age of capacity to marry subsequent to that date,the couple must register their union before any matrimonial proceedings may commence (Article 5).17 Nevertheless,the above developments indicate an important shift in official policy on unregistered unions.Hitherto,the trajectory of change had been increasingly to regard unregistered unions an unlawful cohabitation(feifa tongju非法同居).There is now some relaxation in this approach,reflecting official acknowledgement of the predominance in numerous areas of the countryside of customary celebration over legal registration in the conclusion of marriage. In the process of declaring a marriage void,significantly greater attention is also given to procedural issues.Thus,Article 10 of the revised Marriage Law not only gives the spouses themselves but also confers on "persons with an interest" (li-hai guan.xi de ren利害关系的人)the right to apply for a declaration of void marriage in cases of bigamy.Such interested persons include not only close relatives but also"grassroots"organs.Moreover,in considering the validity of a marriage following an application under Article 10 of the revised Marriage Law, mediation may be used by the court only in respect of distribution of property and custody of children:the decision on the substantive validity of the "marriage"itself must be made by adjudication.In addition,the 2003 Interpretation provides that an application for a declaration of void marriage, once started,may not be retracted.The court must declare the marriage void if it finds merit in the application(Articles 2 and 3).If there are concurrent suits for a 15 At Article 8. 16 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). 17 Article 6 provides that the same principles also apply where one party dies and the other claims succession rights in the estate of the deceased
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680 The China Quarterly,191,September 2007,pp.675-695 declaration of void marriage and for divorce,the former is given prior consideration by the court (Article 7). A third significant area of development concerns forced marriage (xiepo hunyin胁迫婚姻).The revised Marriage Law introduces new provisions(in Article 11)that empower a party coerced into marriage to seek abrogation of the marital relationship within one year either from the date of marriage registration or of securing their freedom.Only the coerced party in a marriage may make such an application,according to the 2001 Interpretation at Article 10,which characterizes such"marriages"as unions in which one party compels the other "to enter into marriage against her or his will by threatening the intimidated party or close relatives of that party with harm to life,health,reputation, property and so on."This is clearly an important step in strengthening women's rights,although the time limit of one year is rather short for a woman thus coerced to adjust to her new situation and to decide on whether to remain in the forced marriage. Perhaps indicative of the relatively widespread nature of forced marriage,the 2003 revised Marriage Registration Regulations allow marriage registration organs as well as courts to handle applications from those pressed into marriage against their will (Article 9).The petitioner submits the appropriate documentation to a registration official who then considers the facts of the case.If there is sufficient evidence of coercion,and problems concerning child maintenance,property and debts are revolved,the registrar rescinds the marriage and declares the marriage certificate invalid (Article 9).It would seem,however,that no procedures are yet in place for dealing with customary unions that have been entered into by force.s Fourthly,the revised Marriage Law attempts to deal with growing problems in the"monogamous"nature of marriage.In particular,there has been the re- appearance in southern China of the phenomenon of taking concubines(bao'er nai).This reflects,inter alia,enhanced wealth in the southern China countryside and the continued popular belief in the importance of maintaining patrilineal descent lines (an importance that continues to be indirectly acknowledged officially in family planning regulations,as shown below).In the debates surrounding the revision in 2001 of the Marriage Law,the All- China's Women's Federation pushed hard to make the taking of concubines into a national moral panic,and in this atmosphere some critics of the practice of concubinage argued that the revised Marriage Law should make it a criminal offence.Such arguments were rejected on the ground that the Marriage Law is essentially civil law,and to criminalize concubinage would be to overextend public interest in private matters.However,the General Principles section of the revised marriage code now provides that"cohabitation of a married person with 18 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
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Transforming Family Law 681 any third party shall be prohibited"(Article 3,para.2),and concubinage is also made a ground for divorce.Nevertheless,concubinage does not in itself constitute a crime and the 2003 Interpretation also sets limits on the public response to it:in ordinary cases of cohabitation,the courts may not order the cohabitants to cease living together,and it seems that a man and his concubine in a stable relationship will not be required to terminate their cohabitation unless a complaint is made to the court (Article 1). A fifth notable change is in the procedures for marriage registration.As noted above,the change in name from Regulations on the Administration of Marriage Registration(hunyin dengji guanli tiaoli婚姻登记管理条例)，promulgated in l994,to Marriage Registration Regulations(hunyin dengji tiaoli婚姻登记条例) in 2003 reflected official acceptance of the view that hitherto there has been excessive state interference in married life.The more liberal procedures may also be seen as a response to the declining importance of state-owned enterprises as institutions of social control.The amendments were also a product of a change in official thinking on the "private international law"dimensions of marriage registration,as the 2003 reforms create a unified system in which the parties are not only Chinese citizens but also "compatriots"in Hong Kong, Macau and Taiwan,and foreign parties,thereby ending the hitherto separate regimes for these categories (Article 5).The revised Regulations introduce two further changes.First,the marrying parties must now themselves demonstrate that they have the capacity to marry-assuring the registrar that they are not already married to others nor close consanguines,and so on.Prior to this change,this responsibility was often assumed by work units.Secondly,the policy increasingly imposed in the 1990s requiring intending spouses to undergo pre-marital medical check ups-expressed in robust terms in Article 9 and 10 of the 1994 Regulations-has been abandoned.In part,this reflects the fact that the examination scheme has not worked well.It also reflects an official recognition that marriage and reproduction are not quite the same thing.Thus, although the 2003 Regulations no longer require pre-marital medical check-ups, the revised Women's Protection Law of 2005 at Article 51 contains a new provision on pregnancy health care systems that suggests that women will still be encouraged to undergo pre-marital medical check-ups,and certainly prior to attempting pregnancy. Finally,the revised Marriage Law also attempts to deal with the somewhat paradoxical situation that while parental interference in marriage has declined in post-Mao China,the obstruction of parental marriage by adult children anxious,for example,about the adverse impact of an intended re-marriage on their inheritance rights-has been on the increase.20 As a result,the revised Marriage Law contains a new provision at Article 30 which forbids children 19 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. 20 See Palmer."Protecting the rights and interests of the elderly
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682 The China Quarterly,191,September 2007,pp.675-695 from blocking the remarriage of a parent.21 Moreover,and consistent with welfare policies that continue to define the family as an important unit of care and welfare for the elderly,the same Article stipulates that the remarriage of a parent does not release the children from their obligation to support(shanyang their parents.This confirms Article 19 of the Elderly Persons Law 1996, which also safeguards the right of the elderly to divide and distribute their own property(geren caichan个人财产)as they see fit,free from any obstruction from their children or other relatives,including attempts by such kinsfolk to secure the property by force. Divorce The issue of divorce has also been subject to very significant legal change over the past decade.The statistical evidence points to a considerable increase in the divorce rate during the post-Mao period as a whole-from an initial figure of 3 per cent to 20 per cent in some areas by the late 1990s.22 This is the result ofa number of different causes,but several stand out as especially important:a relaxation in the grounds for divorce in contested applications,23 a reduced willingness on the part of young people to endure unhappy marriages in China's increasingly open and economically developed society,and the emergence of a more professional and younger judiciary.Freedom of divorce,especially for women,appears at long last to be becoming a reality in socialist China. Nevertheless,the 2001 revisions to the Marriage Law continue to reflect a moralistic and judgemental approach to contested divorce.This approach infused the 1989 Supreme People's Court Opinions on divorce,24 and the 2001 revisions have now put in place a system that deals more effectively with issues of fault and compensation for blameworthy conduct.In particular,compensa- tion may be sought by a“party without fault'”(wu guocuo fang无过错方)if matrimonial breakdown results from bigamy,cohabitation with a third party, domestic violence,or maltreatment and desertion.5 Another highly significant 21 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 fali 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. 22 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. 23 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,atpp.333-36. 24 Ibid. 25 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
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Transforming Family Law 683 development has been a growth in concern with the issue of domestic violence (jiating baoli家庭暴力).Economic restructuring,international pressure(in particular from CEDAW)26 and an increased tendency for husbands to take revenge against an unfaithful spouse27 are among the factors which encouraged the introduction,at Article 43 of the revised Marriage Law,of new provisions which attempt to provide better protection for women victims.Moreover,the 2001 Interpretation offers a definition of domestic violence for the first time in national law,and includes within that definition beating,tying-up,maiming and restricting personal freedom (for example by the use of force)such that mental or physical harm results.Maltreatment,however,must be "persistent"and "frequent"before it can be characterized as domestic violence.Another significant limitation is that,according to Article 3 of the 2001 Interpretation, a victim of domestic violence may not bring suit under Article 4 of the revised Marriage Law,even though that Article encourages mutual respect and assistance between family members. Women suffering from domestic violence continue to be encouraged to seek intervention from their local people's mediation committee,which is expected to persuade the husband to cease his misconduct.However,in more serious cases the local public security bureau is also expected to intervene and,at the victim's request,may impose administrative sanctions on the husband.In addition,a wife who has suffered domestic violence may bring a private prosecution(zisu f),and both the public security bureau and the procuracy are expected to assist her. This shift in the policy and regulatory framework for dealing with domestic violence is significant.Although the processes of mediation and administration sanctioning continue to be emphasized,domestic violence is now characterized as not only a private dispute but also a matter of public concern,and therefore also the concern of criminal law and judicially imposed punishment.As in the debates on concubinage,the public-private divide is shifting in order better to protect women. Matrimonial estate The regulatory framework governing domestic property relations was put under increasing stress in the 1990s as a result of China's rapid economic development and social change.The forms and value of domestic property have expanded significantly,and property dealings between spouses and third parties grown considerably.Accordingly,the ownership,contents and value of matrimonial 26 See"Patriarchy,privacy and protection:slowly conceptualizing domestic violence in Chinese law,"in Natalia lu.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. 27 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
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684 The China Quarterly,191,September 2007,pp.675-695 assets have become more complicated,often making difficult the task of dividing the estate upon divorce.28 One probable result of this increasing complexity is that negotiation between the parties for securing division of the matrimonial estate is the preferred form of decision-making.While a negotiated outcome should be lawful,and not contravene the interests of third parties,serious power imbalances will nevertheless often affect the decision-making process.There is a real danger that the rights and interests of divorcing wives are insufficiently safeguarded. Some protection is offered by Article 47 of the revised Marriage Law,which provides that a party who is discovered to have concealed or alienated the property,or to have created false debts,will receive,inter alia,a smaller share of the matrimonial estate (Article 47). The changing circumstances also stimulated vigorous debate on a number of key issues:for example,should the intellectual property rights of one spouse be included in the matrimonial estate to be divided at divorce,or excluded on the basis that this will be an incentive for originality and creativity?The revisions to the 2001 Law are a compromise,with earnings from intellectual property rights characterized as joint spousal property,but the ownership of the property rights themselves remaining under the individual ownership of the inventive spouse. These provisions are now contained in Article 17 of the revised Law,and that and the following Article together with the relevant sections of the two judicial interpretations of the Marriage Law now offer a significantly reformed system. Thus,the 2003 Interpretation now provides explicit rules on the often difficult 28 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 chuli zinu 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 rather 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 income (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 Low: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
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