The Recently Revised Marriage Law of China: The Promise and the Reality

By Ogletree, Charles J., Jr.; Rangita de Silva-de Alwis | Texas Journal of Women, Gender, and the Law, April 1, 2004 | Go to article overview

The Recently Revised Marriage Law of China: The Promise and the Reality


Ogletree, Charles J., Jr., Rangita de Silva-de Alwis, Texas Journal of Women, Gender, and the Law


I. Introduction

Ms. Z was brutally beaten by her unemployed husband during her marriage to him. . . . If she ever complained to him about his neglect of his family, the beatings became more severe. Due to the battering she received from her husband, she developed severe pulmonary emphysema and was barely able to continue to work to support her family. Once, when returning home early from work, she found her husband in bed with another woman. During the confrontation that followed, Ms. Z was severely beaten and driven out of her home by her husband. Ms. Z filed for divorce and sought custody of their child. During the first trial, the court gave custody of the child to Ms. Z and allowed Mr. Z to remain in the two-bedroom housing unit. Ms. Z was told to find her own accommodations. A legal services lawyer helped Ms. Z appeal the decision. This time, the court ruled that Ms. Z could remain in the apartment's larger bedroom while Mr. Z stayed in the smaller room. What followed was a nighmarish experience for Ms. Z and her daughter. Her ex-husband would frequently kick the door of her bedroom, cursing and swearing in an effort to drive her away. Since this was the middle of the winter, Ms. Z bore the harassment rather than be homeless. Things continued to degenerate in this unusual living arrangement. Mr. Z started letting out his room for prostitution and boasted to the daughter as to how much he made from this trade. The child lived in constant terror of Mr. Z, and she started performing very poorly at school. On occasion, Mr. Z would pursue his ex-wife and daughter with a knife in his hand and once actually wounded Ms. Z. The situation became unbearable, and Ms. Z and her daughter were forced to flee the apartment. The legal services lawyers once again went to court to ask for a readjustment in the living arrangements. After much negotiation with the owner of the apartment, they agreed to give Ms. Z another apartment in exchange for her former bedroom.2

The above case illustrates the plight of a large number of divorced women in present-day China. Despite provisions in the law protecting women's property rights,3 the reality is that property division at divorce will depend largely on the availability of housing units. Frequently, women are faced with the untenable situation of either sharing a bedroom in the ex-husband's apartment or finding themselves homeless.4

On April 28, 2001, the Ninth Standing Committee of the National People's Congress adopted a set of revisions to the 1980 Marriage Law. Under the revised laws, civil compensation for fault can be made if there is a finding of bigamy, co-habitation with another, domestic violence or abandonment of family members.5 The reintroduction of fault into divorce as a factor in determining compensation of parties who are victimized by the actions of the other is in part an attempt to grapple with a high incidence of domestic violence and divorce followed by the feminization of poverty.6

Unexamined assumptions in the law and laws that on paper appear to be neutral, might in actual application have unintended consequences on women. This article examines the disparate impact of some of the facially-neutral provisions of the revised marriage law and analyzes how the failure to fully account for the experiences and values of women in the revised marriage law might actually disadvantage women. The aim of this article is to expose those gaps in the law and to suggest how those lacunae might be addressed.

In Part II of this article, we look at the legal provisions safeguarding women's property rights at marriage and divorce. By looking at the gaps in the Marriage Law, we examine whether the revised marriage law will have any real impact on women's property rights at divorce.

We first argue that in the absence of a clear and broad definition and recognition of domestic violence, it will be very difficult to obtain civil compensation. second, we argue that given the weak procedural laws, women will find it difficult to prove their spouse's adultery and/or cohabitation with another in order to succeed in an action for compensation on the grounds provided in the Revised Marriage Law. …

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