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In the name of holy matrimony
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Li Dan
VALENTINE'S Day last week brought a storm of roses, chocolates and kisses to China's increasingly open and modern society. Yet more and more young people are hesitating before the holy gate of matrimony, while an increasing number of married people are choosing to break out of their “besieged fortress" despite the pain which often accompanies divorce.
The institution of marriage has undergone many changes over the years, and now the law governing it is being revised to keep up with the times.
Since the second edition of the Marriage Law was published in 1980, divorce cases have risen from 272,000 cases a year to 1,199,000 in 1999, a 300 per cent increase. Divorce is growing 8.1 per cent per year, and an increasing number of marriages are breaking up amicably, without bitterness.
“With economical development being the primary concern of our country in recent years, the changes in social and family relationships have not been given enough attention," noted Fu Jingkun, dean of the law department of Shenzhen University. “And that gives a clear annotation to the heated debate roused by modern modifications to the Marriage Law." Indeed, with so much attention having paid to other social and economic issues, this more subtle subject has long been neglected.
Many experts call the present Marriage Law a “soft" one, for a large proportion of the stipulations in the law, in spite of the word “forbidden", fail to spell out punishments or even clearly define important boundaries. New modifications currently in the works try to provide a greater basis in law for addressing this complex subject.
Reasons for a divorce
In the 1980 edition, “no longer existent love" is the only criterion that the court relies on to dissolve a marriage, something that is more a matter of opinion than legally provable. To give it a clear reference, the current draft of the new marriage law stipulates seven situations justifying divorce, including family violence, bigamy, disease unsuitable for marriage, drug abuse and the criminal conviction of a spouse.
The greatest disputes, though, have arisen from the added criterion that a spouse can file for divorce after two years of separation. “This modification represents progress in our society," a Miss Zhang told Shenzhen Daily. “It removes the unnecessary binds from a failed marriage. In the past, if one party insists that their love is still remediable, the other party cannot go free."
“On the other hand," she continued, “two years is not too short a time to produce a rational decision."
Some think two years is too long to wait, as the individuals involved face a plethora of social and psychological pressures; others criticize this stipulation, saying it provides an easy getaway for those who have an extra-marital affair.
“Those in their 50s today may have 20 years of separation before they finally reunite, held by their jobs and the strict system of permanent residence registration," explained professor Fu. “Social development has greatly increased the fluidity of people's lives, and in that point of view, two years is a reasonable waiting period for separated couples who want a divorce."
Compensation
According to an investigation by the All-China Women's Federation in September 2000, increasing cases of bigamy and keeping a secret concubine have made it harder to lead a normal family life. Even more serious is the estimated 30 per cent of all Chinese families where violence endangers the physical and psychological health of women. With these facts in mind, the modified marriage law will clearly stipulate that spouses should be faithful to each other and that family violence is forbidden.
Many youths today deem the bind of marriage a responsibility that springs out of one's sense of morality and self-discipline. It's a shame and retrogression of social development if we try to solve personal and ethical problems by means of law, they say.
In an effort to compromise with this point of view, the new draft does not set severe punishments for those who seek a divorce because of an extra-marriage affair. It does, however, affirm that the hurt party may get monetary compensation from the straying spouse.
“The compensations stipulated in the new draft borrows from the Western concept that marriage is a contract," explained professor Fu. "Previously, marriage in our country was viewed purely as an interpersonal relationship."
Deviating from the original will of experts, the publicized draft keeps silent on the third party involved in the affair. Fu says that punishing the third party opens a Pandora's Box of complex social problems. As the present law system does not give detailed definitions on the individual privacy that falls within the protection of law, punishment of the third party will arouse disputes on that point. Unlike some foreign countries where the law has clearly defined the individual rights to privacy, private detectives are not encouraged in present-day China.
Property arrangement in the marriage
In the past, individual property naturally became family possession once two people got married. Following a Chinese tradition that values harmonious relationships above material interests, newlyweds often neglect to discuss money once they get married. Yet property disputes often provoke the bitterest fights in divorce court.
Under the modified marriage law, the property owned by individuals before they get married will revert to them in the event of divorce, while married couples can sign a written agreement spelling out their property arrangements.
As some may claim, the reformed law will make for smoother divorces. More importantly, it codifies a respect for individual rights. Property should not interfere with personal feelings. The revisions not only encourage independent relationships and mutual respect, but also help to remedy latent disputes springing from difficult-to-resolve family property issues.
Feedback on the proposed changes has been positive, especially from the younger generation. Yet statistics provided by notary offices in Beijing, Shanghai and other big cities indicate that people seldom notarize their individual property before they get married except for a small number of senior citizens facing a remarriage.
All for the sake of children
Out of 19 young offenders in a reform school in Beijing's Fengtai District, 12 come from broken families. Children growing up in a single-parent family who have witnessed the quarrels and disputes between parents often develop an unhealthy character. They have even been known to become indifferent and cynical.
The 1980 edition of the Marriage Law stipulates that parents have the duty to nurture their children after they get divorced. The modified draft defines the term more clearly and thus facilitates its application. Parents should ensure that their children go to school when they come of age, while the party without custody is given the right to visit the child.
Along with property disputes, the struggle for child custody troubles many divorce cases. In the often shrill arguments, the best interests of the child are often forgotten. In stipulating that the parent without custody can visit the child, the new law is designed to make sure children of divorced parents have a better chance of living in a stable environment.
In cases where the visiting parent troubles the child, the guardian can ask the court to suspend visitation rights.
“Borrowing largely from laws in European countries," said professor Fu, "the modified draft reveals the trends and changes in our gradually modernizing society."
In place of the current fuzzy warning that violators of the Marriage Law will be punished, the new draft spells out legal sanctions that can be applied to different cases.
“But we cannot expect the law to provide solutions to every problem that pops up in this dramatically reforming society," Fu continued. “Giving it a limited field of action in solving social problems rightly embodies the spirit of law."
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