Yang Dawen, a professor of the Law School of the People's University of China, is involved in revision of the 1980 Marriage Law. As a convenor of the drafting group, Yang recently voiced his views concerning several issues in focus.
Should the New Law Define the Crime of Bigamy
A survey by the All-China Women's Federation (ACWF) shows that the practice of bigamy, illegal cohabitation and possession of an extra-marital mistress is challenging China's monogamous system. There are mounting pleas for action to deal with the problem. In Guangdong Province alone, the local women's federation handled 348 complaints of illegal cohabitation with a mistress in 1998.
According to Hu Kangsheng, vice-chairperson of the NPC Law Committee, the main problem in enforcing the law was that few cases of cohabitation with a mistress were registered with the marriage registration office, or acknowledged a de facto marriage in any way, even after they gave birth to one or two children. Bigamy has also provided difficult to be dealt with if there was no appeal to the courts for action. Moreover, even if such an appeal is made, it is difficult to obtain evidence. As a result, few penalties are meted out.
As part of the marriage law revision, some departments proposed that anyone who already has a spouse should be branded as a bigamist if they marry a third party in a proper marriage ceremony, or live with a third party in a regular settlement as husband and wife, or live together in a regular settlement for more than six months, even when they do not call themselves husband and wife, or live together for a fixed length of time (say six months or over one year) and have a child or children, again without any marriage ceremony. In this way, it is argued, bigamy can be effectively curbed and punished.
Professor Yang, however, is concerned that by setting a fixed term of living together, say six months, a man might cohabit with his mistress for five-and-a-half months and then decamp to look for a new partner.
“The revised definition of bigamy is the business of the department of criminal legislation,” He said, and suggested various localities formulate codes and rules of their own in accordance with the basic principles of the marriage law and in the light of the local conditions. For instance, he said, Guangdong Province has promulgated the Regulations on Handling Crimes and Property Problems in the Matrimonial Relationship.
Should There Be Provisions Against Domestic Violence
In the first half of 1999, various women's federation in the 29 provinces, autonomous regions, and the municipalities directly under the central government handled a total of 55,892 complaints by letter and personal visits which were related to marital and family problems. Of this figure, 8,862 complaints involved domestic violence. These two figures went up to 110,070 and 20,148 respectively in the second half of the year. The complaints reveal that ever more relentless and cruel means have been adopted in domestic violence crimes, which has become less covert and ever more overt. For example, in November 1998 in Ningxia, three horrific cases of wife murder involved stabbing with a knife, battering with a stick or being set alight with oil.
For the time being, however, law enforcement was the top priority, since many victims have encouraged continued violence by not being aware of their legal rights or regarding it as humiliating to admit to violence within the family. In addition, the public security departments seem to feel it “rather hard for an upright official to deal with his own domestic affairs". And the courts even believe such cases are not serious enough to be judged as maltreatment, resulting in only a few perpetrators being tried and punished. In Guangdong, courts dealt with only five cases in 1998, rising to seven in 1999.
ACWF proposed that domestic violence be clearly defined in the new marriage law, along with the rights and obligations of each party. Clear consequences for varying degrees of serious violence should also be established as a deterrent measure.
A public opinion poll organized by ACWF also shows that 96.1 percent of respondents agree there must be a clear definition of what constitutes domestic violence in all its forms.
The first such local code in the country, Resolution of the Standing Committee of the Hunan Provincial People’s Congress on the Prevention and Prohibition of Domestic Violence was adopted and took effect on March 31, 2000. It, according to Professor Yang, provides valuable guidelines for national legislation.
Should Husband and Wife Share Their Property
According to a sample survey conducted by ACWF in 31 provinces, autonomous regions and municipalities in April, 2000, 35.2 percent of the people surveyed favor that the common property shared by husband and wife shall be agreed between themselves; and 35.8 percent favor a statutory system.
The existing Marriage Law stipulated: "The property acquired by husband and wife during the period of the marriage contract shall be in their joint possession, unless they have agreed otherwise". In other words, the statutory system for the ownership of properties now in practice in China is a system of joint possession of property.
Professor Yang holds that the provision conformed to the actual condition at that time. But, now, a contractual regime is also required to comply with the present reality of diversified family income. He feels that the coverage of the joint possession system needs to encompass other elements such as personal extra income of either the husband or wife. Hence, there should be three systems:
1. A common joint possession system. That is, the property owned by the husband and the wife before and after they are married is shared by the couple.
2. A common control system. The property of the husband and the wife should be separately owned, but be brought under unified control by either the husband or the wife.
3. A separation system. The husband and the wife have their own property, which should not be shared with each other or put under common control.
Professor Yang noted that the majority of Chinese people had not thought about a property contract out of a belief that, at the start of a marriage, it would bring bad luck if they were contemplating an eventual property dispute when they divorce. In fact, Yang said, in most divorce cases, there are property disputes. He suggested that a newly wed couple could choose one of the property control measures, without the need for an attorney or public notary, when they registered their marriage. If they failed to make a choice, their property should be in joint possession of them. In this way, it would be more acceptable for a newly wed couple without hurting their feelings.
Should Divorce be Easier or Harder to Obtain
According to the ACWF survey, 47.6 percent of the respondents favored further limitations on divorce, but 27 percent supported greater relaxation of the marriage law.
Some departments and law specialists suggest that the new law should change the legal grounds for granting a divorce from the provision that "divorce should be granted if mediation fails because mutual affection no longer exists" in the Marriage Law now in force to the provision that "the court should decide whether to grant a divorce after determining whether the marriage has really broken up after mediation has failed. Their reason is that marriage is a binding relationship with a special status recognized by the state, and not a relationship of affection between two parties recognized by the state. Affection is personal feeling and no court can rule on it.
But some others argue that such amendment might be mistaken as showing more leniency in the conditions for divorce, they noted.
Professor Yang holds that such revision and providing detailed circumstances for granting a divorce neither make it easy nor make it difficulty for a divorce. It is only to provide definable legal reasons for divorce. He suggest that the new law include a stipulation that, if conditions have existed for a couple to live together but they have chosen to live separately for more than three years, divorce should be granted if mediation fails. "However, it is by no means to say that whenever the separation of the two parties appears, divorce should automatically be granted. It stresses that divorce should be granted only after mediation has failed."
He considers the argument of some sociologists that such rules would make "divorce more difficult to realize" as “misleading ordinary people”, because the rules were relative not absolute reasons. They by no means indicate that divorce should be granted in any case simply because the two parties had been separated for more than three years. To live separately was merely one of the reasons for divorce, Yang said.
"Many foreign legal experts I met asked me whether the government had lifted up the limit on the conditions of divorce since the incidence of divorce in China has considerably increased after 1978.
“My answer is no since the marriage law has not been revised after 1980. In my opinion, the new marriage law should protect the freedom of divorce on one hand and prevent against a divorce
in haste on the other hand. I am not going to pursue a more lenient policy for divorce or seek to have more barriers set against divorce. Whether a divorce is granted or not will depend on the natural developments in life itself".
Should A System of Compensation for Wrongdoings Be Established
According to the ACWF survey, 88.1 percent of respondents consider that a divorce proceeding should follow the principle that whoever does harms to the marriage should bear the responsibility and the wronged party should be compensated.
The existing Marriage Law provides that at the time of divorce, the husband and the wife shall seek agreement regarding the disposition of their joint property. If they fail to reach an agreement, the court shall issue a judgment, taking into consideration the actual circumstances of the property and the rights and interests of the wife and any offspring. If, at the time of divorce, one party has difficulty in supporting him or herself, the other party should render appropriate financial assistance. The judicial interpretation of the Supreme People's Court also provides that, when the property is to be divided between the two parties, due considerations should be given to the party without fault.
Professor Yang shares the view that a system of compensation for the wrongdoings of one party should be established. Such a ruling will benefit the protection of the rights and interests of the innocent party.
Should the Spouse’s Right Be Established
According to the ACWF survey, 99.4 percent of the respondents believe that loyalty to a marriage is important. In the meantime, 92.1 percent of the respondents consider that a husband and wife have an obligation to cohabit, while 7.9 percent rejected this obligation.
"This was described by some overseas press as a contentious issue between traditional and conservative legislators and the radical sociologists," said Professor Yang.
In respect to the relationship between a husband and wife, he said, a marriage is first of all the bonding of the personal status of a male and a female. In the Marriage Law now in force, the scope of personal rights is limited. Only such personal rights to use his or her surname and given name, to work or to a means of production, to study, and to join social activities as well as a duty to adhere to the state requirements in family planning are provided. It is, therefore, necessary to rule on the mutual enjoyment of the spouse’s right, a generalization of the right to personal status in a marriage and other personal rights.
The spouse’s right is a right to personal status of husband and wife in wedlock, a general name for the special rights and obligation enjoyed and assumed by husband and wife in a marriage. It means that both the husband and wife have equal rights to the use of their own names, determination of residence, living together, loyalty to each other and management of property.
Loyalty is one of the important contents. It means the obligation to an exclusive sex life between husband and wife. As a result, the right to sex of both parties is reasonably restricted. Nobody shall be allowed to have sex with a party other than spouse. Violating the obligation means infringement on the right of his or her spouse.
According to Professor Yang, many rights and obligations mutually enjoyed and assumed by the husband and wife are based on the spouse’ right. Encroachment upon the right should be understood and treated properly. If the concept of the spouse’s right is to be introduced into the new marriage law, any infringement of the personal rights of husband or wife can be handled as an infringement of civil law, he said.