Chinese Family Law

Sources of Chinese Family Law

Chinese family law is now codified in Book V of the Civil Code of the People’s Republic of China, which entered into force on 1 January 2021. Book V, comprising Articles 1041-1118, is entitled Marriage and Family (婚姻家庭编 — Hūnyīn Jiātíng Biān) and replaces the Marriage Law of the People’s Republic of China of 1980 (as amended in 2001) and the Adoption Law of 1991. The incorporation of family law into the Civil Code represents the culmination of a decades-long codification project and marks a significant modernisation of the legal framework governing marriage and family relations.

The Civil Code is supplemented by the Law on the Protection of Rights and Interests of Women (1992, amended 2005 and 2018), the Law on the Protection of Minors (1991, amended 2006, 2012, and 2020), the Law on the Protection of the Rights and Interests of the Elderly (1996, amended 2012 and 2018), and the Regulations on Marriage Registration (2003). The Supreme People’s Court has issued several judicial interpretations providing authoritative guidance on the application of the marriage and family provisions, particularly the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Marriage Law (2001, 2003, and 2011), which remain relevant to the extent consistent with the 2020 Civil Code.

Requirements for Marriage

The substantive requirements for a valid marriage are set out in Articles 1046-1054 of the Civil Code. Article 1046 provides that marriage must be based on the complete willingness of both parties; any act of coercion is prohibited. Article 1047 sets the minimum age of marriage at twenty-two for men and twenty for women, the highest minimum marriage age among major legal systems. This reflects China’s longstanding policy of encouraging later marriage and childbearing as part of population control measures, though the relaxation of the one-child policy in 2015 and the shift to a three-child policy in 2021 have not been accompanied by a reduction in the minimum marriage age.

Article 1048 prohibits marriage between direct-line blood relatives and between collateral blood relatives up to the third degree (including siblings, half-siblings, uncle-niece, aunt-nephew, and first cousins). Bigamy is prohibited under Article 1042, and persons who are already married may not enter into another marriage. The Civil Code does not recognise same-sex marriage, nor does it provide for any form of registered partnership for same-sex couples; Article 1041 expressly provides that the state protects marriage between a man and a woman.

The formal requirements are governed by the Regulations on Marriage Registration. Marriage must be registered with the marriage registration authority of the place where either party has its permanent residence. The parties must appear in person, produce their identity documents and household registration books (hukou), and sign a statement affirming their consent and the absence of impediments. Registration is conclusive: a marriage that has been registered is valid, and a marriage that has not been registered is not recognised as a legal marriage, though the courts may apply the rules on cohabitation to determine property rights.

The invalidity and voidability of marriages are addressed in Articles 1051-1054. A marriage is void where it violates the prohibition on bigamy, the prohibition on prohibited degrees of relationship, or the minimum age requirement (Article 1051). A marriage is voidable where one party suffers from a serious disease and conceals this from the other party before marriage, or where the marriage was entered into under duress (Article 1052). A voidable marriage may be annulled only by judicial order and only at the petition of the aggrieved spouse within one year of the discovery of the ground or the cessation of duress.

Rights and Duties of Spouses

Articles 1055-1067 of the Civil Code establish the rights and obligations of spouses. Article 1055 provides that husband and wife enjoy equal status in the family. Article 1056 confirms the right of each spouse to use their own name and surname, and Article 1057 guarantees the freedom of each spouse to engage in work, production, and social activities without restriction by the other spouse.

The matrimonial property regime is governed by Articles 1062-1065. Article 1062 establishes the statutory regime of joint property: wages and salaries, bonuses, income from production and business operations, income from intellectual property, and other property acquired during the marriage are the common property of the spouses, held jointly. Each spouse has equal rights to manage and dispose of the common property, requiring joint consent for major transactions.

Article 1063 identifies separate property: pre-marital property; compensation for personal injury or medical expenses; property specifically designated by gift or inheritance as belonging to one spouse; and daily necessities for the exclusive use of one spouse. Article 1065 permits the spouses to agree on a separate property regime by contract, which must be in writing. Such an agreement may provide for property acquired before marriage to remain separate or for the spouses to adopt a regime of separate property during marriage, and is binding on both parties.

Dissolution of Marriage

Divorce (离婚 — líhūn) is governed by Articles 1076-1092 of the Civil Code. Two procedures exist. The consensual divorce (Article 1076) is conducted through the marriage registration authority where both spouses wish to divorce and have reached agreement on child arrangements and the division of property. The spouses must submit a joint application, and the authority must ascertain that the divorce is voluntary and that proper arrangements have been made for any children.

Article 1077, introduced in the 2021 Civil Code, imposes a 30-day cooling-off period for consensual divorces. After submitting the application, either spouse may withdraw it within thirty days. If neither withdraws the application, the spouses must appear in person within the following thirty days to obtain the divorce certificate; failure to do so results in the application being treated as withdrawn. This provision was introduced in response to rising divorce rates and concerns about the stability of the family, but has been criticised for limiting the autonomy of spouses and for potentially exposing individuals to coercion or pressure from the other spouse during the cooling-off period.

The judicial divorce (Article 1079) is available where the spouses do not consent or cannot agree on consequences. The court must grant the divorce where it finds that the relationship has broken down irreconcilably. Article 1079 lists specific grounds that warrant a finding of irretrievable breakdown: bigamy or cohabitation with a third person; domestic violence or the maltreatment or desertion of a family member; habitual gambling or drug addiction that remains un-reformed after repeated admonitions; separation for two years due to incompatibility; or any other circumstance causing the relationship to break down. Where one spouse applies for divorce and the other objects, the court may dismiss the application; if the spouses remain separated for one year after the dismissal, a further application for divorce must be granted.

Children

Articles 1067-1072 and Articles 1084-1087 of the Civil Code govern the rights of children and parental responsibilities. The principle of the best interest of the child (最有利于未成年子女原则 — zuì yǒulì yú wèichéngnián zǐnǚ yuánzé) is expressly incorporated in Article 1084, which provides that a parent-child relationship is not terminated by divorce and that, where parents dispute custody, the court must determine the child’s custody arrangement in accordance with the principle most favourable to the child.

The maintenance of the parent-child relationship after divorce is addressed in Article 1085, which provides for child support payments. The amount of child support is determined by reference to the needs of the child and the financial capacity of both parents. Article 1086 grants the non-custodial parent the right to visit and the duty to co-operate with the arrangements for access.

Parental rights may be revoked under Article 36 of the Law on the Protection of Minors where parents abuse their rights, neglect the child, or seriously harm the child’s interests. The family court may order the deprivation of parental rights, and the guardianship and trusteeship authorities (the civil affairs department or the residents’ committee) assume responsibility for the child’s protection.

Division of Property on Divorce

The division of property on divorce under Article 1087 follows the principle of equal division of community property, subject to the protection of the interests of the wife and the caregiving spouse. The court may adjust the shares in favour of the spouse who has cared for the children, the elderly, or the other spouse, or who has made greater contributions to the family. Debts incurred during the marriage for the benefit of the family are joint debts and must be satisfied from the common property; debts incurred by one spouse for personal purposes are that spouse’s separate debts.

The 2021 Civil Code also introduced provisions on divorce damages under Article 1091: where a spouse commits bigamy, cohabits with a third person, commits domestic violence, maltreats or deserts a family member, or commits other serious fault, the innocent spouse may claim damages. This reflects the increased emphasis in Chinese family law on the protection of the vulnerable spouse and on accountability for marital misconduct.