The Recently Revised Marriage Law of China: The Promise and the Reality
Ogletree, Charles J., Jr., de Silva-de Alwis, Rangita, Texas Journal of Women and the Law
In April 2001, the Standing Committee of the Ninth National People's Congress (NPC), China's highest legislative body, passed the long-debated and much awaited amendments to the Marriage Law on the closing day of its twenty-first session. As stated by one PRC commentator, "In the 50 years since the founding of the New China, there has not been any law that has caused such a widespread concern for ordinary people."1
Even though the recent revisions to the marriage laws have been hailed as some of the most significant and positive changes in family law in China, thus far no empirical evaluation of the laws' effectiveness in actual practice has been conducted. Our article raises some questions as to the practical effect these revisions will have on women's rights.
We maintain that while the revisions were intended to promote a more equitable system of property distribution for women at divorce and to address violence against women in the family, in reality, women will face major drawbacks in the implementation of these provisions of the law. Unless the gaps in the law and certain obstacles to the implementation of these laws are addressed, the revisions will remain largely symbolic. In our conclusion, we suggest recommendations that will help bring the Marriage Law in compliance with the international standards set out in the Convention on the Elimination of Discrimination Against Women (CEDAW), as well as help deliver on the promise of the revisions to the Marriage Law.
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. …