Article Modern China Privatization of Marriage 1-27 ©The Author(s)20l4 in Post-Socialist China Reprints and permissions: sagepub.com/journalsPermissions.nav D○北10.1177/0097700414536528 mcx.sagepub.com SAGE Deborah S.Davis! Abstract Over the past three decades,a distinctly post-socialist form of marriage with high rates of divorce as well as rising rates of marriage and remarriage has emerged as the result of a"triple turn"by the party-state in regard to the institution of marriage:a "turn toward"marriage as a voluntary contract, a "turn away"from close surveillance of sexual relationships,and a "turn away"from protection of communal property.The one-child policy runs against these three prevailing"turns"toward privatization,but to date this contradiction has been muted by a de facto distinction between(strong) control over reproduction and (weak)control over sexual relationships. Moreover,as illustrated here through close analysis of three recent interpretations of the Supreme People's Court and interviews with ordinary citizens in Guangzhou and Shanghai,by continuing to extend the logic of voluntary contract to intimate relationships,the party-state's own actions (and inaction)serve to accelerate privatization of marriage in post- socialist China. Keywords marriage,sexuality,property rights,one-child policy,post-socialism In explaining the changes in the experience of marriage after 1949,many schol- ars(including myself)have emphasized how provisions of the Marriage Law of 1950 expanded the rights of women as brides,wives,and daughters-in-law and Yale University,New Haven,CT.USA Corresponding Author: Deborah S.Davis,Department of Sociology.Yale University.PO Box 208265.New Haven, CT 06520,USA. Email:deborah.davis@yale.edu Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
Modern China 1–27 © The Author(s) 2014 Reprints and permissions: sagepub.com/journalsPermissions.nav DOI: 10.1177/0097700414536528 mcx.sagepub.com Article Privatization of Marriage in Post-Socialist China Deborah S. Davis1 Abstract Over the past three decades, a distinctly post-socialist form of marriage with high rates of divorce as well as rising rates of marriage and remarriage has emerged as the result of a “triple turn” by the party-state in regard to the institution of marriage: a “turn toward” marriage as a voluntary contract, a “turn away” from close surveillance of sexual relationships, and a “turn away” from protection of communal property. The one-child policy runs against these three prevailing “turns” toward privatization, but to date this contradiction has been muted by a de facto distinction between (strong) control over reproduction and (weak) control over sexual relationships. Moreover, as illustrated here through close analysis of three recent interpretations 解释 of the Supreme People’s Court and interviews with ordinary citizens in Guangzhou and Shanghai, by continuing to extend the logic of voluntary contract to intimate relationships, the party-state’s own actions (and inaction) serve to accelerate privatization of marriage in postsocialist China. Keywords marriage, sexuality, property rights, one-child policy, post-socialism In explaining the changes in the experience of marriage after 1949, many scholars (including myself) have emphasized how provisions of the Marriage Law of 1950 expanded the rights of women as brides, wives, and daughters-in-law and 1Yale University, New Haven, CT, USA Corresponding Author: Deborah S. Davis, Department of Sociology, Yale University, PO Box 208265, New Haven, CT 06520, USA. Email: deborah.davis@yale.edu 536528 MCXXXX10.1177/0097700414536528Modern ChinaDavis research-article2014 Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Modern China more generally increased the autonomy of the conjugal pair.However,while the 1950 law supported a new form of companionate marriage and construed mar- riage to be the"personal property"(Ocko,1991:319)of the husband and wife, in other ways,the 1950 Marriage Law repositioned and strengthened the state's oversight of the institution of marriage(Davis and Harrell,1993;Palmer,1995). First,in contrast to the marriage regulations that the Chinese Communist Party (CCP)had drafted earlier for its base areas,the 1950 Marriage Law recognized a marriage only after state registration and refused to treat long-term cohabita- tion as de facto marriage(Palmer,1995).Second,by requiring that all divorces be registered with the local government and all petitions for divorce be subject to mediation first by leaders of the local community and later by court officers, the 1950 law inserted the state into disputes that previously had involved only family members (Alford and Shen,2004;Diamant,2000;Huang,2005). Moreover,in the case of divorce,the law stated that the collective "needs of production"(Article 23)explicitly trumped the individual interests of either spouse,thereby making marriage as much a"social"as personal form of prop- erty (Ocko,1991:320).Finally,even though the 1950 law(Article 15)granted children born outside marriage the same rights as those born to a married couple, by mandating monogamy and ignoring unregistered unions,the law more effec- tively limited childbearing to married couples than had either pre-1949 law or custom.In sum,multiple provisions of the 1950 Marriage Law empowered state agents as social engineers to mobilize the institution of marriage to advance the larger project of national development. The Marriage Law of 1950 also directly redefined the norms and opportu- nities for sexual intimacy.When Article 2 prohibited concubinage,the law conflated sexual intimacy and monogamous marriage for men as well as women.By criminalizing prostitution and closing brothels,the CCP further restricted sexual relationships to married couples.Before 1949,wealthy men often took secondary wives and many men visited prostitutes before and after marriage.Women,by contrast,were expected to be virgins before marriage and were severely punished for adultery (Hershatter,1997;Mann,2011). After 1950,both male and female sexual relationships became subject to legal and public censure.And in the context of political campaigns to identify saboteurs of socialism,sexual infidelity or even premarital sexual intimacy could be grounds for punishing individuals as class enemies(Chan,Madsen, and Unger,1984;Hong,1997;Kang,2005). Legal reforms initiated the "socialization"of marriage,but CCP economic policies that eliminated private ownership of land and capital created the enduring,institutional foundations for"socialist"marriages.After full col- lectivization and criminalization of private entrepreneurship,families could no longer accumulate substantial wealth.Henceforth,collective property Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
2 Modern China more generally increased the autonomy of the conjugal pair. However, while the 1950 law supported a new form of companionate marriage and construed marriage to be the “personal property” (Ocko, 1991: 319) of the husband and wife, in other ways, the 1950 Marriage Law repositioned and strengthened the state’s oversight of the institution of marriage (Davis and Harrell, 1993; Palmer, 1995). First, in contrast to the marriage regulations that the Chinese Communist Party (CCP) had drafted earlier for its base areas, the 1950 Marriage Law recognized a marriage only after state registration and refused to treat long-term cohabitation as de facto marriage (Palmer, 1995). Second, by requiring that all divorces be registered with the local government and all petitions for divorce be subject to mediation first by leaders of the local community and later by court officers, the 1950 law inserted the state into disputes that previously had involved only family members (Alford and Shen, 2004; Diamant, 2000; Huang, 2005). Moreover, in the case of divorce, the law stated that the collective “needs of production” (Article 23) explicitly trumped the individual interests of either spouse, thereby making marriage as much a “social” as personal form of property (Ocko, 1991: 320). Finally, even though the 1950 law (Article 15) granted children born outside marriage the same rights as those born to a married couple, by mandating monogamy and ignoring unregistered unions, the law more effectively limited childbearing to married couples than had either pre-1949 law or custom. In sum, multiple provisions of the 1950 Marriage Law empowered state agents as social engineers to mobilize the institution of marriage to advance the larger project of national development. The Marriage Law of 1950 also directly redefined the norms and opportunities for sexual intimacy. When Article 2 prohibited concubinage 纳妾, the law conflated sexual intimacy and monogamous marriage for men as well as women. By criminalizing prostitution and closing brothels, the CCP further restricted sexual relationships to married couples. Before 1949, wealthy men often took secondary wives and many men visited prostitutes before and after marriage. Women, by contrast, were expected to be virgins before marriage and were severely punished for adultery (Hershatter, 1997; Mann, 2011). After 1950, both male and female sexual relationships became subject to legal and public censure. And in the context of political campaigns to identify saboteurs of socialism, sexual infidelity or even premarital sexual intimacy could be grounds for punishing individuals as class enemies (Chan, Madsen, and Unger, 1984; Hong, 1997; Kang, 2005). Legal reforms initiated the “socialization” of marriage, but CCP economic policies that eliminated private ownership of land and capital created the enduring, institutional foundations for “socialist” marriages. After full collectivization and criminalization of private entrepreneurship, families could no longer accumulate substantial wealth. Henceforth, collective property Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Davis 3 rights routinely trumped those of households and when young adults became members of work teams or employees of state enterprises,parental control over mate selection or even the timing of marriage also atrophied.A child's marriage remained a turning point in the life cycle,routinely triggering deci- sions as to whether or not to divide the household budget.But the marriage of a son or daughter no longer fulfilled the core,economic functions as it had when the economy was dominated by family farms and private commerce (Ocko,1991;Watson and Ebrey,1991). The socialist command economy was most fully realized in towns and cities and therefore urban family life was more fully "de-commodified"and "de-capitalized"than in villages.In the countryside,even during the high tides of the Great Leap Forward and the Cultural Revolution,families con- tinued to own their homes and village youth worked alongside their kin.By contrast,urban daughters as well as sons stayed in school until their mid- teens and then went directly to work in a state or collectively owned enter- prise.Apprenticeships in family stores and domestic service disappeared, and young adults spent little time under the close scrutiny of parents or net- works of extended kin.Moreover,not only did the structure of the urban economy weaken parental control over a child's future,it also tied the future well-being of married couples closely to their workplace (Whyte,1992). One of the clearest examples of this comprehensive reach of the socialist economy was the urban real estate system that transformed urban couples into "supplicants to a socialist state"(Davis,1993).In 1949,most families lived in privately owned accommodations which they owned or rented.But within a decade the majority of urban residents lived in publicly owned apartments.Couples waited in a housing queue at their workplace and the seniority and status of the head of household,usually the husband,deter- mined when and where they moved to a new home.Once they had acquired their new residence,rents took a tiny fraction of monthly income and life- time tenancy was guaranteed (Whyte and Parish,1984).Urban families effectively held use rights in perpetuity while for employers provision of housing was a social welfare benefit. Evolution of Post-Socialist Marriage The reintroduction of private ownership and re-legitimation of the profit motive after 1980 destroyed the core logic of the socialist economy.The impact on manufacturing and commerce has been well studied;the impact on marriage less so.Yet just as the ideological shifts away from the com- mand economy curbed state surveillance in the workplace,in a parallel fashion the CCP's endorsement of market transactions,privatization of Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
Davis 3 rights routinely trumped those of households and when young adults became members of work teams or employees of state enterprises, parental control over mate selection or even the timing of marriage also atrophied. A child’s marriage remained a turning point in the life cycle, routinely triggering decisions as to whether or not to divide the household budget. But the marriage of a son or daughter no longer fulfilled the core, economic functions as it had when the economy was dominated by family farms and private commerce (Ocko, 1991; Watson and Ebrey, 1991). The socialist command economy was most fully realized in towns and cities and therefore urban family life was more fully “de-commodified” and “de-capitalized” than in villages. In the countryside, even during the high tides of the Great Leap Forward and the Cultural Revolution, families continued to own their homes and village youth worked alongside their kin. By contrast, urban daughters as well as sons stayed in school until their midteens and then went directly to work in a state or collectively owned enterprise. Apprenticeships in family stores and domestic service disappeared, and young adults spent little time under the close scrutiny of parents or networks of extended kin. Moreover, not only did the structure of the urban economy weaken parental control over a child’s future, it also tied the future well-being of married couples closely to their workplace (Whyte, 1992). One of the clearest examples of this comprehensive reach of the socialist economy was the urban real estate system that transformed urban couples into “supplicants to a socialist state” (Davis, 1993). In 1949, most families lived in privately owned accommodations which they owned or rented. But within a decade the majority of urban residents lived in publicly owned apartments. Couples waited in a housing queue at their workplace and the seniority and status of the head of household, usually the husband, determined when and where they moved to a new home. Once they had acquired their new residence, rents took a tiny fraction of monthly income and lifetime tenancy was guaranteed (Whyte and Parish, 1984). Urban families effectively held use rights in perpetuity while for employers provision of housing was a social welfare benefit. Evolution of Post-Socialist Marriage The reintroduction of private ownership and re-legitimation of the profit motive after 1980 destroyed the core logic of the socialist economy. The impact on manufacturing and commerce has been well studied; the impact on marriage less so. Yet just as the ideological shifts away from the command economy curbed state surveillance in the workplace, in a parallel fashion the CCP’s endorsement of market transactions, privatization of Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Modern China assets,and reliance on voluntary contracts transformed familial and marital relationships.Under these conditions marriages became less like "social property”and closer to“personal property”(Ocko,l99l:319).Thus I would argue that the changes in the experience of marriage and in the state's policy of marriage since 1980 go beyond a retreat from the earlier role as social engineer and toward a more general "privatization"of the institution of marriage. In making this argument I am not adopting the vocabulary of legal schol- ars such as Cass Sunstein and Richard Thaler(2008)who advocate privatiza- tion of marriage as a correction to the distortions created when government licensing subsidizes one form of intimacy over another.Rather,I understand privatization of marriage as a process that follows from the state's redefini- tion of marriage as a voluntary contractual relationship grounded in individ- ual emotional satisfaction.One immediately observes this redefinition in provisions of the new Marriage Law promulgated soon after Deng's procla- mation of the Four Modernizations.Henceforth,whenever both spouses agreed that affection had completely broken down如感情确已破裂，the court had to grant a divorce (Marriage Law of the PRC,1980:Article 25).1 If only one spouse declared a complete breakdown of affection,the court was required to grant a divorce after mediation failed (Article 25)and no state agents could deny or delay a divorce on the grounds that the larger needs of the society trumped those of the individual happiness of an alienated spouse. The new law also abandoned the earlier provisions that had prioritized the needs of production over the claims of the married couple (Article 13), thereby signaling to the court and the community that personal preferences could trump the needs of the public economy. At first glance,it would seem that the one-child policy,first announced in 1979,contradicted the promise of the new Marriage Law to prioritize personal satisfaction and subjected a couple's most intimate life to increased state control.Yet if one distinguishes between marital fertility and sexual- ity,the contradiction becomes less stark.In 1978,the national leaders were convinced that only by mandating a dramatic drop in birth rates could they achieve "core regime objectives"(Greenhalgh,2008:xvii).However,if sexual intimacy did not lead to a birth,the state could (and did)treat it as a matter of personal choice protected by the right to privacy.In short,by delinking regulation of sex from regulation of procreation,the contradic- tion in the state's position toward post-socialist marriages become less salient.In fact,one could hypothesize that by making such a distinction, state agents were able to monitor procreation while reducing surveillance of sexual intimacies.In the Conclusion section,I will return to this contra- diction.But first let me now turn to a discussion of how economic,social, Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
4 Modern China assets, and reliance on voluntary contracts transformed familial and marital relationships. Under these conditions marriages became less like “social property” and closer to “personal property” (Ocko, 1991: 319). Thus I would argue that the changes in the experience of marriage and in the state’s policy of marriage since 1980 go beyond a retreat from the earlier role as social engineer and toward a more general “privatization” of the institution of marriage. In making this argument I am not adopting the vocabulary of legal scholars such as Cass Sunstein and Richard Thaler (2008) who advocate privatization of marriage as a correction to the distortions created when government licensing subsidizes one form of intimacy over another. Rather, I understand privatization of marriage as a process that follows from the state’s redefinition of marriage as a voluntary contractual relationship grounded in individual emotional satisfaction. One immediately observes this redefinition in provisions of the new Marriage Law promulgated soon after Deng’s proclamation of the Four Modernizations. Henceforth, whenever both spouses agreed that affection had completely broken down 如感情确已破裂, the court had to grant a divorce (Marriage Law of the PRC, 1980: Article 25).1 If only one spouse declared a complete breakdown of affection, the court was required to grant a divorce after mediation failed (Article 25) and no state agents could deny or delay a divorce on the grounds that the larger needs of the society trumped those of the individual happiness of an alienated spouse. The new law also abandoned the earlier provisions that had prioritized the needs of production over the claims of the married couple (Article 13), thereby signaling to the court and the community that personal preferences could trump the needs of the public economy. At first glance, it would seem that the one-child policy, first announced in 1979, contradicted the promise of the new Marriage Law to prioritize personal satisfaction and subjected a couple’s most intimate life to increased state control. Yet if one distinguishes between marital fertility and sexuality, the contradiction becomes less stark. In 1978, the national leaders were convinced that only by mandating a dramatic drop in birth rates could they achieve “core regime objectives” (Greenhalgh, 2008: xvii). However, if sexual intimacy did not lead to a birth, the state could (and did) treat it as a matter of personal choice protected by the right to privacy. In short, by delinking regulation of sex from regulation of procreation, the contradiction in the state’s position toward post-socialist marriages become less salient. In fact, one could hypothesize that by making such a distinction, state agents were able to monitor procreation while reducing surveillance of sexual intimacies. In the Conclusion section, I will return to this contradiction. But first let me now turn to a discussion of how economic, social, Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Davis 5 and legal changes in the second and third decades of reform further priva- tized the institution of marriage. Marriage in the Second and Third Decades of Economic Reform Rapid growth and institutional restructuring after 1990 intensified the ini- tial privatization and commodification of the economy.They also compli- cated the financial dimensions of marriage and increased the number of family disputes over property.Growth of family firms required courts con- fronting divorce or inheritance disputes to weigh the claims not only from the two spouses but also from in-laws and other shareholders whose prop- erty interests had not been salient during the first decade of market reform. Rapid privatization of urban housing stock and skyrocketing prices after 2000 ended urban housing as a welfare benefit (Davis,2010).They also promoted multigenerational investments into marital residences whereby in-laws could hold claims to a conjugal home equal to (or even stronger than)than those of a spouse.Rural families were not immune from these new pressures.But because rural families had built and owned their homes throughout the socialist era,the creation of a more privatized housing mar- ket did not create as dramatic a disjuncture as it did for urban families (Parish and Whyte,1978). A second and distinct source of disjuncture was a surge in geographic mobility.For most of the socialist era the hukou registration system tied adults to the county or city of their birth.and a first employer was often the last(Davis,1992).Over the first decade of reform,geographic mobility had increased,but migration did not routinely involve permanent relocation. Over the second and third decades of reform,however,migration acceler- ated and became less short-term.More than 200 million villagers left home and millions traveled to towns or factory zones thousands of miles from their parents and their ancestral villages.At the same time hundreds of thousands of Hong Kong,Southeast Asian,and Taiwan investors extended their sojourning in the People's Republic of China(PRC)and many became long- term residents.In the context of high levels of geographic mobility,the mar- ket for romantic and marital partners rapidly expanded and social norms that had constrained premarital and extramarital sexual relationships weakened (Shen,2008).Prostitution returned,premarital sex became normative,and divorce rates surged(Farrer,2002;Farrer and Sun,2003;Farrer et al.,2012; Huang et al.,2011;Osburg 2013;Parish,Laumann,and Mojola,2007;Pei, 2011;Yan,2003;Zhang,2011).Privatization of property transformed the Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
Davis 5 and legal changes in the second and third decades of reform further privatized the institution of marriage. Marriage in the Second and Third Decades of Economic Reform Rapid growth and institutional restructuring after 1990 intensified the initial privatization and commodification of the economy. They also complicated the financial dimensions of marriage and increased the number of family disputes over property. Growth of family firms required courts confronting divorce or inheritance disputes to weigh the claims not only from the two spouses but also from in-laws and other shareholders whose property interests had not been salient during the first decade of market reform. Rapid privatization of urban housing stock and skyrocketing prices after 2000 ended urban housing as a welfare benefit (Davis, 2010). They also promoted multigenerational investments into marital residences whereby in-laws could hold claims to a conjugal home equal to (or even stronger than) than those of a spouse. Rural families were not immune from these new pressures. But because rural families had built and owned their homes throughout the socialist era, the creation of a more privatized housing market did not create as dramatic a disjuncture as it did for urban families (Parish and Whyte, 1978). A second and distinct source of disjuncture was a surge in geographic mobility. For most of the socialist era the hukou registration system tied adults to the county or city of their birth. and a first employer was often the last (Davis, 1992). Over the first decade of reform, geographic mobility had increased, but migration did not routinely involve permanent relocation. Over the second and third decades of reform, however, migration accelerated and became less short-term. More than 200 million villagers left home and millions traveled to towns or factory zones thousands of miles from their parents and their ancestral villages. At the same time hundreds of thousands of Hong Kong, Southeast Asian, and Taiwan investors extended their sojourning in the People’s Republic of China (PRC) and many became longterm residents. In the context of high levels of geographic mobility, the market for romantic and marital partners rapidly expanded and social norms that had constrained premarital and extramarital sexual relationships weakened (Shen, 2008). Prostitution returned, premarital sex became normative, and divorce rates surged (Farrer, 2002; Farrer and Sun, 2003; Farrer et al., 2012; Huang et al., 2011; Osburg 2013; Parish, Laumann, and Mojola, 2007; Pei, 2011; Yan, 2003; Zhang, 2011). Privatization of property transformed the Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Modern China economics of marriage.Mass migration and openness to global cultural shifts unleashed a sexual revolution that redefined the character of intimate relationships inside and outside of marriage. Revised Marriage Law of 2001 There was no single reaction to the lower barriers to divorce and the freer sexual climate.But regardless of whether individuals embraced the shifts as a positive break from a repressive past or whether they saw social breakdown and moral decay,local courts found it increasingly difficult to rely on the 1980 Marriage Law to adjudicate the financial,property,and custody dis- putes of contemporary family life.In response to both public dissatisfaction and confusion in lower courts,the National People's Congress (NPC)decided to solicit proposals for a new Marriage Law.Two opposing views soon crys- tallized.On one side were those who felt that the 1980 law had been too lib- eral and they proposed more legal oversight of marriages and harsher penalties for adultery.On the other side,were those who advocated further liberalization,such as recognition of same-sex marriage.2 Debate continued over five years with no clear resolution.But faced with the need to adjudicate the ever more complex family disputes,in 2001 the NPC promulgated a revised rather than new Marriage Law (Alford and Shen,2004) In terms of substantive changes,the most noteworthy new provisions were those strengthening individual property rights (Marriage Law of the PRC Revised,2001).3 Articles 18 and 19 defined individual property within marriages and elaborated how prenuptials or other notarized agreements between spouses could designate legally enforceable claims.Henceforth,all property acquired before marriage would be presumed to be individual unless otherwise agreed,as would all items which one spouse deemed for his or her personal use.Article 19 introduced new vocabulary such as gezisuoyou that stressed individual ownership as well as explicit wording to empha- size how agreements to designate separate ownership were binding on both parties.By contrast Article 13 in the original 1980 law had merely com- mented that both spouses had equal rights to manage a couple's jointly owned property夫妻对共同所有的财产有平等的处理权. In addition to detailed specification of individual-property rights,the revised law reinforced the ideal of marriage as a voluntary contract where courts would take action only when one or more parties requested court adju- dication.Or,as summarized by legal scholar Margaret Woo(2003),the 2001 revisions went beyond specifying individual rights to enhancing"litigant's choice'”当事人主意so that henceforth courts would intervene in marital dis-- putes only if at least one party explicitly requested court adjudication.In Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
6 Modern China economics of marriage. Mass migration and openness to global cultural shifts unleashed a sexual revolution that redefined the character of intimate relationships inside and outside of marriage. Revised Marriage Law of 2001 There was no single reaction to the lower barriers to divorce and the freer sexual climate. But regardless of whether individuals embraced the shifts as a positive break from a repressive past or whether they saw social breakdown and moral decay, local courts found it increasingly difficult to rely on the 1980 Marriage Law to adjudicate the financial, property, and custody disputes of contemporary family life. In response to both public dissatisfaction and confusion in lower courts, the National People’s Congress (NPC) decided to solicit proposals for a new Marriage Law. Two opposing views soon crystallized. On one side were those who felt that the 1980 law had been too liberal and they proposed more legal oversight of marriages and harsher penalties for adultery. On the other side, were those who advocated further liberalization, such as recognition of same-sex marriage.2 Debate continued over five years with no clear resolution. But faced with the need to adjudicate the ever more complex family disputes, in 2001 the NPC promulgated a revised rather than new Marriage Law (Alford and Shen, 2004). In terms of substantive changes, the most noteworthy new provisions were those strengthening individual property rights (Marriage Law of the PRC Revised, 2001).3 Articles 18 and 19 defined individual 一方 property within marriages and elaborated how prenuptials or other notarized agreements between spouses could designate legally enforceable claims. Henceforth, all property acquired before marriage would be presumed to be individual unless otherwise agreed, as would all items which one spouse deemed for his or her personal use. Article 19 introduced new vocabulary such as gezisuoyou 各自 所有 that stressed individual ownership as well as explicit wording to emphasize how agreements to designate separate ownership were binding on both parties. By contrast Article 13 in the original 1980 law had merely commented that both spouses had equal rights to manage a couple’s jointly owned property 夫妻对共同所有的财产 有平等的处理权. In addition to detailed specification of individual 一方 property rights, the revised law reinforced the ideal of marriage as a voluntary contract where courts would take action only when one or more parties requested court adjudication. Or, as summarized by legal scholar Margaret Woo (2003), the 2001 revisions went beyond specifying individual rights to enhancing “litigant’s choice” 当事人主意 so that henceforth courts would intervene in marital disputes only if at least one party explicitly requested court adjudication. In Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Davis 7 of all stories 1946-2009 1.6 0.8 0.6 0.4 02 0 oogg°goeg %of stories on divorce %of stories on mamriage Figure I.Discussion of marriage and divorce in People's Daily,1946-2009. Source.Renmin ribao(dianziban),1946-2009,http://biscuit.library.yale.edu/. statute and practice therefore,the Revised Law of 2001 echoed and strength- ened the underlying trend toward ever greater privatization and individual- ization throughout contemporary Chinese society (Kong,2011;Yan,2009, 2011). Without access to inner-party debates,I cannot explain the shifting posi- tions among the national elite toward marriage reform.However,by tracking the frequency with which People's Daily,the official paper of the CCP Central Committee,published stories with“marriage'”or“divorce'”in the title between 1946 and 2009,I can roughly trace the rise and fall in the rela- tive importance of marriage as a central concern among those at the apex of national politics.As we see in Figure 1,coverage peaks in the three years after 1949,drops drastically after 1953,and virtually disappears between 1960 and 1979.It then picks up again after the passage of the 1980 Marriage Law,and continues at levels comparable to the mid-1950s.Based on these trends,it appears that official discourse on marriage and/or divorce main- tained a salience for the post-Mao leadership that had been absent in the high- socialist years of the Great Leap Forward and the Cultural Revolution. I turn now to three Supreme People's Court(SPC)interpretations of the Revised Marriage Law.Through examination of these interpretations one Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
Davis 7 statute and practice therefore, the Revised Law of 2001 echoed and strengthened the underlying trend toward ever greater privatization and individualization throughout contemporary Chinese society (Kong, 2011; Yan, 2009, 2011). Without access to inner-party debates, I cannot explain the shifting positions among the national elite toward marriage reform. However, by tracking the frequency with which People’s Daily, the official paper of the CCP Central Committee, published stories with “marriage” or “divorce” in the title between 1946 and 2009, I can roughly trace the rise and fall in the relative importance of marriage as a central concern among those at the apex of national politics. As we see in Figure 1, coverage peaks in the three years after 1949, drops drastically after 1953, and virtually disappears between 1960 and 1979. It then picks up again after the passage of the 1980 Marriage Law, and continues at levels comparable to the mid-1950s. Based on these trends, it appears that official discourse on marriage and/or divorce maintained a salience for the post-Mao leadership that had been absent in the highsocialist years of the Great Leap Forward and the Cultural Revolution. I turn now to three Supreme People’s Court (SPC) interpretations of the Revised Marriage Law. Through examination of these interpretations one 0 0.2 0.4 0.6 0.8 1 1.2 1.4 1.6 % of all stories 1946-2009 % of stories on divorce % of stories on marriage Figure 1. Discussion of marriage and divorce in People’s Daily, 1946–2009. Source. Renmin ribao (dianziban),1946–2009, http://biscuit.library.yale.edu/. Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
8 Modern China observes a"triple turn"by the party-state as it advances the further privatiza- tion of the institution of marriage.First,the court has "turned toward" expanding protection of individual claims to property,a turn clearly in accord with an economy where an ever higher percentage of wealth is privately held. Second,it has "turned away"from surveillance of private life,a turn equally in accord with the state's new endorsement of voluntary contract and the right to privacy.And,finally,by privileging individual claims to private property, the court has also "turned away"from the CCP's long-time advocacy and support for a communal,conjugal property regime.The result is an ever more privatized institution of marriage. Interpreting the Revised Marriage Law of 200I Chinese statutes are often vague.And because lower courts cannot rely on case precedents as in the Anglo-U.S.system,judges who find a statute ambiguous or incomplete first consult their party committee,which may sub- sequently seek guidance from higher courts or party supervising bodies. When a problem is pervasive or challenges persist,the Supreme People's Court will be asked to issue interpretations to guide the lower courts in sub- sequent adjudication(Finder,1993).4 Since passage of the Revised Marriage Law in 2001,the SPC has issued three such interpretations.In addition, because drafts of what later became the third interpretation were circulated on the internet,comparison among drafts identifies issues where CCP elites were uncertain or disagreed as how to instruct lower courts in cases of marital discord. The First and Second Interpretations of the 2001 Revised Marriage Law The SPC issued its first interpretation of the revised law in December 2001 (SPC,2001).In that interpretation,the court focused on defining terms that had been absent in the earlier version of the Marriage Law such as "family violence'”家庭暴力，“adulterous cohabitation”配偶者与他人同居，and “abuse'”虐待and that according to the revised statute established grounds for financial compensation in cases of divorce.Also significant was a provision that courts could not withhold divorce from the party at fault if affection had broken down.By instructing lower courts to differentiate criteria for granting a divorce from those for awarding financial compensation such as bigamy, cohabitating with lovers,abusing children,or abandoning the family,the court simultaneously upheld the principle of monetizing fault and advanced an individual's personal right to leave a marriage that was no longer Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
8 Modern China observes a “triple turn” by the party-state as it advances the further privatization of the institution of marriage. First, the court has “turned toward” expanding protection of individual claims to property, a turn clearly in accord with an economy where an ever higher percentage of wealth is privately held. Second, it has “turned away” from surveillance of private life, a turn equally in accord with the state’s new endorsement of voluntary contract and the right to privacy. And, finally, by privileging individual claims to private property, the court has also “turned away” from the CCP’s long-time advocacy and support for a communal, conjugal property regime. The result is an ever more privatized institution of marriage. Interpreting the Revised Marriage Law of 2001 Chinese statutes are often vague. And because lower courts cannot rely on case precedents as in the Anglo-U.S. system, judges who find a statute ambiguous or incomplete first consult their party committee, which may subsequently seek guidance from higher courts or party supervising bodies. When a problem is pervasive or challenges persist, the Supreme People’s Court will be asked to issue interpretations to guide the lower courts in subsequent adjudication (Finder, 1993).4 Since passage of the Revised Marriage Law in 2001, the SPC has issued three such interpretations. In addition, because drafts of what later became the third interpretation were circulated on the internet, comparison among drafts identifies issues where CCP elites were uncertain or disagreed as how to instruct lower courts in cases of marital discord. The First and Second Interpretations of the 2001 Revised Marriage Law The SPC issued its first interpretation of the revised law in December 2001 (SPC, 2001). In that interpretation, the court focused on defining terms that had been absent in the earlier version of the Marriage Law such as “family violence” 家庭暴力, “adulterous cohabitation” 配偶者与他人同居, and “abuse” 虐待 and that according to the revised statute established grounds for financial compensation in cases of divorce. Also significant was a provision that courts could not withhold divorce from the party at fault if affection had broken down. By instructing lower courts to differentiate criteria for granting a divorce from those for awarding financial compensation such as bigamy, cohabitating with lovers, abusing children, or abandoning the family, the court simultaneously upheld the principle of monetizing fault and advanced an individual’s personal right 人身权 to leave a marriage that was no longer Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Davis 9 emotionally satisfying.In 1989,the SPC(1989)had issued an opinion that opened the door for a person guilty of adultery to apply for divorce and if denied on first petition,the court could not refuse to hear a second petition. Provision 22 of the 2001 interpretation went beyond that earlier opinion by deleting the several conditions for a second petition and guaranteeing that the court must grant,not merely hear,a petition for the divorce from the adulter- ous spouse.Henceforth,it became even clearer that a court could not with- hold a divorce simply because a judge found one party guilty of abuse(SPC, 2001:Provision 22). The second SPC interpretation of the Revised Marriage Law,issued on December 24,2003(SPC,2003),further strengthened the salience of per- sonal rights within the marital relationship.For example,the first provision of this 2003 interpretation explicitly explained that cohabitation only comes into the court's purview when justifying a contested divorce or assigning compensation.Another significant provision in the 2003 interpretation clari- fied the property rights of parents-in-law in regard to their expenditures for wedding gifts or a new conjugal home(SPC,2003:Provision 22).During the socialist era,parents in rural areas exhausted their savings to build homes for their sons.However,because divorce was rare and geographic mobility restricted,parents rarely needed to go to court to recoup their investment in a child's marriage.In cities,where direct costs of marriages were far lower and housing was rented,concern with recouping parental investment was even less pressing(Davis-Friedmann,1983;Whyte and Parish,1984).However as noted,rising real estate prices and accelerating migration have created a situ- ation where both rural and urban parents heavily invest in establishing their children's new households even as geographic mobility may undermine fam- ily and marital solidarity (Davis,2002,2010;Yan,2011).Thus,by 2000 the issue of how to protect parental investments in the purchase of a married child's new residence could not be ignored.In response to this specific issue, the Revised Marriage Law was inadequate and thus Provision 22 of the 2003 interpretation specified that absent other arrangements,parental investments before a marriage should be seen as a gift to their child alone and invest- ments after the marriage would be considered as a gift to the couple. The Third Interpretation of the 2001 Revised Marriage Law In August 2011,the SPC issued its third interpretation of the Revised Marriage Law (SPC,2011).In contrast to the first and second interpreta- tions,this third interpretation directly undermined the latent protections of communal property.Thus,Provision 7 in the third interpretation states that when parents give their child money to purchase"immovable property" Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
Davis 9 emotionally satisfying. In 1989, the SPC (1989) had issued an opinion 意见 that opened the door for a person guilty of adultery to apply for divorce and if denied on first petition, the court could not refuse to hear a second petition. Provision 22 of the 2001 interpretation went beyond that earlier opinion by deleting the several conditions for a second petition and guaranteeing that the court must grant, not merely hear, a petition for the divorce from the adulterous spouse. Henceforth, it became even clearer that a court could not withhold a divorce simply because a judge found one party guilty of abuse (SPC, 2001: Provision 22). The second SPC interpretation of the Revised Marriage Law, issued on December 24, 2003 (SPC, 2003), further strengthened the salience of personal rights within the marital relationship. For example, the first provision of this 2003 interpretation explicitly explained that cohabitation only comes into the court’s purview when justifying a contested divorce or assigning compensation. Another significant provision in the 2003 interpretation clarified the property rights of parents-in-law in regard to their expenditures for wedding gifts or a new conjugal home (SPC, 2003: Provision 22). During the socialist era, parents in rural areas exhausted their savings to build homes for their sons. However, because divorce was rare and geographic mobility restricted, parents rarely needed to go to court to recoup their investment in a child’s marriage. In cities, where direct costs of marriages were far lower and housing was rented, concern with recouping parental investment was even less pressing (Davis-Friedmann, 1983; Whyte and Parish, 1984). However as noted, rising real estate prices and accelerating migration have created a situation where both rural and urban parents heavily invest in establishing their children’s new households even as geographic mobility may undermine family and marital solidarity (Davis, 2002, 2010; Yan, 2011). Thus, by 2000 the issue of how to protect parental investments in the purchase of a married child’s new residence could not be ignored. In response to this specific issue, the Revised Marriage Law was inadequate and thus Provision 22 of the 2003 interpretation specified that absent other arrangements, parental investments before a marriage should be seen as a gift 赠与 to their child alone and investments after the marriage would be considered as a gift to the couple. The Third Interpretation of the 2001 Revised Marriage Law In August 2011, the SPC issued its third interpretation of the Revised Marriage Law (SPC, 2011). In contrast to the first and second interpretations, this third interpretation directly undermined the latent protections of communal property. Thus, Provision 7 in the third interpretation states that when parents give their child money to purchase “immovable property” 不 Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
10 Modern China after the child's marriage and the property is registered in their child's name,then according to Article 18 of the Marriage Law,the property is a gift to their child alone and considered one spouse's individual property 方的个人财产.The interpretation then goes on to say that in cases where parents of both husband and wife have invested in the purchase of the home, absent other arrangements,ownership will be apportioned on basis of paren- tal investment.Were lower courts to follow this logic strictly,they could in the event of divorce grant to the parents who had paid the largest percentage of the down payment or mortgage a larger share of a marital home than to the coresident spouse. Marking an even more dramatic break with past practice,Provision 11 instructed lower courts to refuse to hear cases where one spouse had sold a jointly owned marital home夫妻共同共有的房屋without the permission of the other spouse.Only in cases of divorce could the spouse who had not been consulted sue for compensation;however,even then ownership of the home remained with the third party who had legally purchased the property.For decades,PRC law and judicial rulings had upheld the right of each spouse to equal claims to the home in which they lived regardless of formal legal docu- mentation specifying rights of ownership.Specifically,regulations of the socialist era emphasized that even when one spouse(most often the wife)did not have his or her name on a deed or had not made the largest financial investments,that spouse was entitled to half the conjugal home on the grounds that many years of uncompensated labor to maintain the family,raise the children,and care for the elderly had created the conjugal assets to which each spouse held equal claims.>By prioritizing the legitimacy of officially documented financial transactions,voluntary contracts,and notarized agree- ments the 2011 SPC interpretation not only"turned away"from established norms of the socialist property regime but also argued in favor of formal over substantive equality. A third noteworthy element in the 2011 interpretation was the "judicial silence"on matters of sexual infidelity.I flag this silence not because lower courts ignored issues of sexual infidelity in adjudicating divorce cases but because in 2009 and 2010 the SPC released draft interpretations that explic- itly dealt with how best to deal with sexual infidelities irrespective of ques- tions of divorce (SPC,2009;SPC,2010).Moreover,because these drafts circulated widely on the internet,we can interpret what the SPC's silence on these matters in the final version in 2011 signals about the party-state's evolv- ing position on the limits of state intrusion into marriage as a private institu- tion.Particularly noteworthy was a provision in the 2009 draft that instructed lower courts to adjudicate disputes over loyalty agreements忠诚协议 between married spouses and a provision in the 2010 draft that denied legal Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
10 Modern China 动产 after the child’s marriage and the property is registered in their child’s name, then according to Article 18 of the Marriage Law, the property is a gift to their child alone and considered one spouse’s individual property 夫妻一 方的个人财产. The interpretation then goes on to say that in cases where parents of both husband and wife have invested in the purchase of the home, absent other arrangements, ownership will be apportioned on basis of parental investment. Were lower courts to follow this logic strictly, they could in the event of divorce grant to the parents who had paid the largest percentage of the down payment or mortgage a larger share of a marital home than to the coresident spouse. Marking an even more dramatic break with past practice, Provision 11 instructed lower courts to refuse to hear cases where one spouse had sold a jointly owned marital home 夫妻共同共有的房屋 without the permission of the other spouse. Only in cases of divorce could the spouse who had not been consulted sue for compensation; however, even then ownership of the home remained with the third party who had legally purchased the property. For decades, PRC law and judicial rulings had upheld the right of each spouse to equal claims to the home in which they lived regardless of formal legal documentation specifying rights of ownership. Specifically, regulations of the socialist era emphasized that even when one spouse (most often the wife) did not have his or her name on a deed or had not made the largest financial investments, that spouse was entitled to half the conjugal home on the grounds that many years of uncompensated labor to maintain the family, raise the children, and care for the elderly had created the conjugal assets to which each spouse held equal claims.5 By prioritizing the legitimacy of officially documented financial transactions, voluntary contracts, and notarized agreements the 2011 SPC interpretation not only “turned away” from established norms of the socialist property regime but also argued in favor of formal over substantive equality. A third noteworthy element in the 2011 interpretation was the “judicial silence” on matters of sexual infidelity. I flag this silence not because lower courts ignored issues of sexual infidelity in adjudicating divorce cases but because in 2009 and 2010 the SPC released draft interpretations that explicitly dealt with how best to deal with sexual infidelities irrespective of questions of divorce (SPC, 2009; SPC, 2010). Moreover, because these drafts circulated widely on the internet, we can interpret what the SPC’s silence on these matters in the final version in 2011 signals about the party-state’s evolving position on the limits of state intrusion into marriage as a private institution. Particularly noteworthy was a provision in the 2009 draft that instructed lower courts to adjudicate disputes over loyalty agreements 忠诚协议 between married spouses and a provision in the 2010 draft that denied legal Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014