The Common Property under China Marriage Law
What China’s new marriage law has to do with American social conservatism

The Legal Criteria for Divorce in a Court of Law

The Marriage Law of 1980 stipulated two different procedures for applying for a divorce. These have not been changed in the 2001 revision.

  • The first is an administrative procedure and it is followed when the husband and wife both want a divorce and they have reached an agreement for the care of children and for the disposition of conjugal property. In this case, the divorce certificates are issued in the marriage registration office (Article 24). 
  • The second procedure involves judicial proceedings and is followed when only one party wants a divorce, or when the two parties have not been able to make agreements with regard to care of children and division of property (Article 25, para.1). 

In dealing with a divorce case, the People’s Court should mediate between the parties. Divorce should be granted if mediation fails because mutual affection no longer exists (Article 25, para.2). It was generally thought that this provision represented the basic criteria in dealing with applications for divorce in a court of law.

Yet, some legal experts suggested that we should use the expression irretrievable breakdown of the marriage instead of irretrievable breakdown of mutual affection between the couples, because the law seeks to regulate social relationships rather than private feelings between two persons including those of mutual affection. The experts further pointed out that this provision increased the uncertainties about the application of the law. As a matter of fact, to erase the uncertainties of the application of the law, the Supreme People’s Court issued an interpretation on this issue in 1989. It contains examples of 14 circumstances relevant in the determination of whether or not mutual affection is irretrievably broken down. The legal experts suggested that this judicial interpretation should be transformed into legal provisions in order to increase its legal authority, to help judges carry out the law properly and to allow the public to understand it more easily.

Amendments have also been made to Article 32 of the revised Marriage Law. But the basic legal criteria in dealing with applications for divorce in a court remain as before. However, below this provision, five circumstances were added that are intended to guide the application of this criterion in the court’s consideration of applications for divorce. These circumstances are:

  1. Bigamy or a married person cohabiting with a third party;
  2. Domestic violence or maltreatment and desertion of one family member by another;
  3. Bad habits of gambling or drug addiction that remain incorrigible despite repeated admonition;
  4. Separation caused by incompatibility, which lasts two full years;
  5. Any other circumstances causing alienation of mutual affection.