User:Cyranl/Marriage in modern China

May Fourth Movement and Marriage

The May Fourth Story largely informed the direction of marriage reform throughout the 20th century in China. The May Fourth Story was set amidst a call for family revolution, or an end to coerced arranged marriages and an increased say for young people in determining their own lives. An idea was developing that China required a cultural revolution that focused on the family structure. The purpose of this revolution would be to help people break away from the habit of being subservient, which prevented them from becoming independent individuals and free citizens. This lack of individual freedom was thought to be weakening the Chinese state. This also came at a time when the political revolution had failed and warlords were governing many townships.

Warlords, or people who had semi-governing power over certain regions of China, posed an interesting challenge for marriage in China during and following the May Fourth era. For rural areas in early Republican China, there was often a balance of power between the magistrate, the military, the local gentry, and local bandit gangs, or warlord armies. These armies were often poorly paid and fed, undisciplined, and inclined to steal and rape. “Bare sticks,” or unmarried adult men in China, could join the warlord armies instead of worrying about marriage. The warlord era existed until the Nationalists came into power under Chiang Kai-shek in 1928. This era was largely pre-revolutionary.

During the May Fourth era, a popular play surfaced in China called Searching for Nora by Wendy Swallow. In the play, Nora, the protagonist, becomes aware of her own infantilization by her narcissistic husband, reinforced by broader social limitations on women. After a dramatic confrontation with her husband, Nora leaves home. The play ends with the sound of her slamming the door. The urban intellectual Chinese readers were enthralled by Nora’s rejection of a cloying family system and her assertion of self. Many Chinese people were inspired by Nora’s rejection of an unhappy marriage and looked to the play as a sign for the future of marriage in China. Specifically, Chinese male intellectuals began to prescribe a “new” role for Chinese women to passively follow. The standards that these male intellectuals looked to were foreign ideals that were adopted for the sake of “modern” China, not necessarily for that of women.

The Communist Party in the May Fourth Era attempted to thread the needle between advocating for women’s rights and marriage freedom while retaining rural support. Young members of the Communist Party were products of the New Culture/May Fourth era and brought the ideas of unfettered love and free-choice marriage, equality in the family, and women’s right to be active in the public sphere into the Communist Party’s agenda. Regardless of the CCP’s feminist goals like raising women’s status, providing education and employment, and reworking family relationships, the CCP remained primarily committed to accomplishing a worker-peasant revolution to overthrow the bourgeoisie and imperialists. Part of why the CCP prioritized their class agenda over their gender agendas is because rural populations resisted marriage freedom. The prospect of free-choice marriage raised the possibility that no woman would choose to marry a poor peasant, and the danger of losing a wife to divorce, especially after a man’s family had paid to bring her into the family, was frightening to many rural families.

Modern Laws in China regarding Marriage

Nationalist Era Laws

After the May Fourth Era, many laws were passed in China that contributed to the discourse surrounding marriage in Chinese society. The first of these laws was the Nationalist 1931 Civil Code. Around the time of this law, Chinese state authorities saw their role as helping shape women whose primary job was to be modern, educated, and productive wives and mothers. The Nationalist government of Chang Kai-shek in the 1930s regarded marriage reform as one way to improve the quality of the Chinese people. In order to do this, the Nationalist government progressively opposed arranged marriage, but only through a patriotic, nationalistic sense. However, their opposition to arranged marriage had little to do with improving the lives of Chinese women and more to do with eugenics and creating a strong Chinese population.

Given this thinking, the 1931 Civil Code granted women equal status with men and displaced the patriline from its central status in the law, replacing it with rights-bearing individuals and the conjugal unit of husband and wife. Daughters were given equal rights to inherit family property, although this rarely happened, and widows were now entitled to a share of their husbands’ property. This code is an expansion of women’s rights, especially regarding marriage. In contrast to the Qing code provisions before the establishment of the Republic of China, women as well as men could initiate a divorce. Nonetheless, it was often challenging for Chinese women to attain a divorce. “Intolerable cruelty” was often cited in divorce suits initiated by wives, yet this charge was not easy to prove. On the other hand, when men initiated lawsuits, they most often were attempting to compel wives who had left an abusive or economically untenable situation to return.

Under the 1931 Civil Code, women, just like men, had “legal personhood.” However, even though this law represents a strong step forward in terms of women’s legal status in China, it also brought about new gender distinctions based on biology and the conjugal tie between husbands and wives. For example, men had to reach the minimum age of eighteen in order to marry, but women only had to reach sixteen. Eugenic reasoning guided this decision––it was assumed that women reached sexual maturity earlier than men and that marriage before sexual maturity might adversely affect one’s body, the quality of one’s offspring, and one’s ability to support them.

During the 1930s, there was cultural discourse surrounding the symbolic ideas of New Woman and the Modern Girl. In Chinese society, the New Woman was characterized as eager to learn, reach economic independence, have a white-collar job, not subservient to men, frugal, modest in dress and self-preservation, politically informed, and in touch with contemporary social problems. The New Woman was the ideal, while the Modern Girl was almost a caricature. The Modern Girl stereotype was criticized for being mischievous, irresponsible, and vaguely dangerous. She could have permed hair and high heels, smoked cigarettes, and was deceitful, flirtatious, and greedy. The dichotomy between the New Woman and the Modern Girl should be viewed alongside the 1931 Civil Code. Chinese people were navigating the new role and rights of women, and with that came the cultural discourse of the New Woman and Modern Girl.

During the Nationalist Era, one Communist law that was passed was the Marriage Law of 1934 which formally established monogamy and banned polygamy, polyandry, bride price, and dowry. The legal marriage age was fixed at twenty for men and eighteen for women, and couples were required to register their marriages with the local soviet. Like the earlier 1931 Civil Code, the unilateral freedom to divorce was built into law but withheld in the case of the wives of Red Army soldiers in order to allow the soldiers to fight without worrying that their wives would leave them. It is difficult to assess how the Marriage Law of 1934 was implemented and how local people responded. Jiangxi Soviet publications mentioned cases of chaos and coercion with men forcing women to sleep with them on grounds that this was a way to combat feudalism. There were also rumors of forced remarriages of widows within five days of their husbands’ deaths and some cases of sexually transmitted diseases spreading through communities.

During the Chinese Civil War (1927-1949), the Nationalists reinvigorated the New Life Movement to mobilize women during wartime. Before the war, the New Life Movement emphasized women’s roles as wives and mothers, but their roles during this period expanded. Despite the 1930s Nationalist government opposing arranged marriage, during the civil war, marriages continued to be arranged by parents. In some cases, weddings were more than the family could afford. Some women choose to be runaway wives where a wife who was dissatisfied with her household’s poverty, her mother-in-law’s abuse, or her husband’s beatings or absence might walk out of her house, head for a nearby market town, and offer herself as a potential daughter-in-law to a new family. If her first husband could track her down, the wife’s new husband would often make a cash payment to the family of the first husband. This phenomenon would happen both in the city and the countryside.

The Communists realized that the marriage regulations, specifically the ones regarding arranged marriage, were hurting their support from rural populations, especially rural men. Therefore, party cadres acted as matchmakers for single men and discouraged women from pursuing divorces. They urged unhappily married women cadres to stay with their husbands in order not to jeopardize Party organizing efforts. In addition, the Marriage Law of 1934 stipulation that wives of soldiers were not permitted to divorce was kept intact.

Due to wartime activity, there were many unmarried Communist soldiers and there became a relative shortage of brides. Simultaneously, inflation in the Communist area of China during the 1940s meant that the price of a bride went up considerably and left many men in a hopeless situation in terms of marriage. Overall, the “freedom of marriage” guaranteed by the law could not be isolated from the desires of parents and their daughters to improve their financial situation. Poor men would always lose out and this phenomenon influenced the ostensible lack of “freedom of marriage.”

Communist Era Laws

The Marriage Law of 1950 deviated from the previous law in that it was written with input from women in the Party leadership. It was not significantly different from earlier versions enacted in the Communist base areas and had elements in common with the Nationalist Civil Code of 1931. The Marriage Law of 1950 announced the end of the “feudal marriage system” and of the “supremacy of man over woman.” It outlawed bigamy, concubinage, child betrothal, inference in widow remarriage, the exaction of money or gifts in conjunction with a marriage agreement, and compelling someone to marry against their will. It established a minimum marriage age of twenty for men and eighteen for women and required registration of marriages with the local government. It permitted divorce when both parties desired it, allowed women to initiate divorces, required mediation and a court decision in contested divorces, forbade a husband to divorce his wife during or immediately after pregnancy, and stipulated that a soldier’s spouse could not obtain a divorce without the soldier’s consent.

By issuing the Marriage Law of 1950, the new national government showed its desire to end marriage practices that were criticized since at least the May Fourth Movement. This law also served to insert the state into marriage by issuing marriage certificates. Previously, marriage was primarily under the domain of the family. In addition to the land reform that the Communist Party instituted, the Marriage Law helped to actualize the Communist Party’s goal to redistribute land and wealth. The Communist Party wanted to end poor women being trafficked and poor men hiring themselves out as landless laborers who could not afford to marry. Because of the redistribution of wealth, girls who had been sold to families as foster daughters-in-law to be raised by their future in-laws and then married to one of their sons now returned to their natal families.

There were some challenges to implementing the Marriage Law in rural areas in the early 1950s. Inexperienced local village leaders were preoccupied with the land reform campaign instead of the Marriage Law. Nonetheless, this law still changed the national idea of marriage and had considerable consequences. For example, rural men would get triggered because too many rural women filed for divorce, eventually creating pressure for the cadres in terms of how much effort they should put in to help women divorce.

One feature of rural marriage that was not addressed by the Marriage Law was patrilocality, or the phenomenon where daughters moved out of their natal homes at marriage and into the homes of their husbands, usually in a different village. Historically, women had to reestablish themselves in their husband’s villages and leave the communities that they were raised in. Despite the Marriage Law, patrilocality continued and, in turn, it continued to limit women’s access to political power. It also continued to perpetuate the preference for sons over daughters––according to traditional cultural norms, sons are supposed to carry on the family line and daughters will marry off and be seen as her husband’s family member.

Divorce Laws

Divorce laws in China have undergone significant changes throughout history, reflecting the evolution of Chinese societal and cultural norms. Divorce in China has existed for at least two thousand years, yet the right to divorce was mainly available to men. Historically, there were seven grounds for a man to repudiate his wife including adultery, infertility, and disobedience to his parents. Women, on the other hand, only had three grounds to prevent such repudiation. In the most extreme cases, a woman could only escape a marriage by running away or committing suicide.

Imperial era

During the imperial era, divorce laws became more codified and restrictive. The Qing government implemented strict rules governing divorce. For instance, a couple would need a valid reason to divorce, such as infidelity, and the couple would need to get approval from their families and the government. A man might divorce his wife under the Qing legal code for improper behavior (gossip, jealousy, adultery, theft, lack of filiality toward in-laws), sickness, or inability to bear a son. These rights were not shared by the wife who could only divorce her husband if her birth family was willing to file a lawsuit on her behalf, and then only if her husband had abandoned her, caused her lasting bodily damage, sought to sell her, or forced her to commit adultery. In practice, divorce was extremely rare in the late Qing Dynasty and could result in social ostracism.

Republican period

During the Republican Period, there was a shift towards more liberal divorce laws. In 1930, the government passed the family law which abolished the requirement for family approval and granted a unilateral divorce on ten grounds. However, divorce was still relatively rare due to the continued social stigma attached to it.

While the new law provided better protection for concubines by treating them as family members, it became less socially acceptable for a man to have one. Under the new code, taking on a concubine was effectively considered adultery. As a result, the wife could seek a divorce if her husband took a concubine after the Civil Code was implemented in May 1931, but not if he had one before that date. Although a wife couldn't force her husband to abandon his concubine, she could opt for a judicial separation instead of a divorce. This way, she wouldn't have to live with him and wouldn't face the social stigma associated with being a divorcée.

When the Japanese army invaded China, divorce suits increased in cities that fell under Japanese control. Many men vanished and left their families without financial support. In 1942, women in Beijing filed 77 percent of all divorce cases, with over half of these cases citing desertion as the reason. In court, women shared stories of husbands who left home to find work but either went missing or were unable to send money back, resulting in wives struggling to provide for themselves and their children. Wives of Nationalist soldiers faced long separations from their husbands, who were unable to communicate or send remittances across Japanese lines. Even if they could, the low pay of enlisted men in the Nationalist army would have made it difficult. In such circumstances, courts were inclined to grant the wife a divorce.

Socialist period

Upon the establishment of the People’s Republic of China in 1949, the Communist Party of China enacted the Marriage Law in 1950. This law allowed couples to get divorced if they both agreed to it, but if they couldn't agree, they had to try mediation and ultimately go to court for a decision. Additionally, the law prohibited husbands from divorcing their wives while they were pregnant or recently were pregnant, and it required a soldier's spouse to have the soldier's permission to obtain a divorce. The primary objective of the Marriage Law of 1950 was to abolish the feudalistic marriage system that persisted in China before 1949. Another development around 1950 was the land reform which granted women the right to own land, enabling them to achieve some more financial autonomy. These changes regarding divorce and land ownership led more women to seek divorce.  As a result, the marriage law became known as the "divorce law." since divorce emerged as the most contentious and alarming aspect of the newly introduced laws. Statistics show an exponential increase in divorce cases after the Marriage Law came into effect. In 21 large and medium-sized cities, there were 9,300 divorce petitions from January through April 1950. In that same year, there were 17,763 divorce petitions from May through August.

While the Marriage Law was welcomed by many urban women, it was strongly resisted by rural Chinese families. They saw the dissolution of marriage as a consequence of this law and, along with the government, began to oppose this law. During the Cultural Revolution, divorce rates in China dropped significantly as divorce rates in China dropped significantly, primarily because the courts were highly restrictive in granting divorces. One of the few reasons courts would allow divorce was to separate a persecuted person from their family. This means that if a person was deemed to be a political target, a "counter-revolutionary," or faced persecution for any other reason related to the Cultural Revolution, the courts would permit a divorce to distance that person from their spouse and children. The intent behind such divorces was to protect the family from guilt by association, as the persecution of one family member could lead to severe consequences for the entire family.

Economic reform period

The Marriage Law of 1981 promoted the lawful process of obtaining a divorce. This law added a new criterion for divorce: alienation of affection. During the Maoist era, divorce petitions often led to lengthy mediation processes and even official pressure for couples to stay together. However, under the new law, if mediation was unsuccessful, courts were instructed to grant a divorce. In addition, this law specifies three forms of divorce in present-day China:

1. Divorce by mutual agreement. This type of divorce is managed by civil affairs departments instead of the courts and doesn't involve any fees for the applicants. In this case, an approved divorce means the marriage certificate was withdrawn and a divorce certificate issued.
2. Divorce by court mediation. This type of divorce can result in two outcomes. If the mediation is successful in resolving the conflict between the couple, the divorce application is withdrawn. On the other hand, if the mediation fails, the court will issue a mediated divorce certificate, which holds the same legal value as a verdict.
3. Divorce by appeal to the People’s Court. This type of divorce happens if one party desires a divorce but the other does not agree. If the court determines that the couple has lost their love for each other and that their relationship is irreparable, a court verdict will grant them a divorce to entirely dissolve the marriage.

In theory, the Marriage Law of 1981 is capable of making divorce easier in cases where only one party seeks divorce. However, due to cultural norms, divorce is largely seen as the last resort, and couples filing for divorce get discouraged by several parties before their case reaches the civil affairs department. In urban areas, the work unit, the resident’s committee, and the neighborhood cadres all step in to help the couple reunite. In rural areas, the divorce mediation process tended to disadvantage the female petitioner. Mediators often consist of members from the husband's family and would either blame the wife or persuade her to remain in the marriage. Official statistics show that in 1982, about 25 percent of all would-be divorces were reconciled after mediation in court, reflecting the government’s view that “earnest mediation can prevent the disintegration of families.”

In the 21st century, divorce rates in China have been steadily increasing, especially in urban areas. Among all divorce cases, 70 percent of initiators are women. This is partially due to China’s economic growth. More women are being educated and the societal stigma around divorce is becoming less severe.  Another reason for more divorces is that in 2001, amendments to the Marriage Law included post-divorce reliefs such as economic compensation for divorce damages.

The "cooling-off" period 离婚冷静期

Fearing a potential population drop, the government has responded to the increasing trend of divorce by implementing new divorce policies to achieve social stability. In 2021, the government added a new provision to the Civil Code Act 1077, which is later referred to as the mandatory “cooling-off” period. Couples who file for divorce are required to wait for a duration of 30 days after submitting their application. During this period, either spouse is allowed to retract their petition. After the completion of the stipulated 30-day waiting period, the couple must once again submit their divorce application in person to legally end their marriage. Chinese officials’ argument for this provision is to prevent “impulsive” divorces and to stop couples who try to escape home purchase limits through a fake divorce. Escaping home purchase limits refers to a practice where couples exploit loopholes in regulations by getting a fake divorce, allowing them to buy additional properties under each person's name. This tactic is used to bypass government-imposed restrictions on the number of properties an individual or a family can own. The “cooling-off” period is shown to be effective in reducing divorce rates, as the Ministry of Civil Affairs has reported that there were 296,000 recorded divorces in the first quarter of 2021. This figure is 72% lower than the 1.06 million divorces that were registered in the last quarter of the previous year.  

The new provision to the Civil Code Act 1077 triggered different reactions. Several media outlets initiated a public vote on whether to support the implementation of a divorce cooling-off period system in December 2019, well before the law was announced. According to People's Daily, 208,600 people participated in the vote, with only 57,800 (27.7%) expressing clear support, and 117,000 (55.6%) voicing outright opposition. In May 2020, right after the draft law was published, it became a focal point of social discourse, gaining attention across various domestic social media platforms, including Tik Tok, Sina Weibo, WeChat Moments, and Qzone. Chinese people voiced several arguments against the cooling-off period on these platforms. For example, they say the legislators initially "assumed" that people's intention to divorce was an irrational decision, an assumption that many considered self-righteous and paternalistic overreach. After all, in highly personal relationships like marriage, the individuals involved hold the exclusive right to judge whether the relationship is good or bad.

Many Chinese couples rushed to get a divorce right before the “cooling-off” period came into effect at the end of 2020. Some people fear that the cooling-off period will make it harder for the initiator of the divorce, mostly women, who have historically been the vulnerable party in the marriage. Others point to the possibility that the cooling-off period makes women more vulnerable to domestic violence and even spousal murder. For instance, Kan Xiaofang had long suffered from domestic violence from her husband and filed for divorce in 2021. During the New Year's holiday, she went back to her original residence to gather essential items and continue with the divorce process. Her sister reported that when they noticed an ax near the entrance of her old house, Kan made a remark stating that her husband might be planning to kill her. On January 8th, Kan Xiaofang was brutally killed by her spouse before the divorce lawsuit was over. This case has triggered a new round of public discussion about the “cooling-off period” for divorce. People argue that making the divorce process more complex and time-consuming without providing comprehensive protection to women who suffer from domestic violence could lead to tragic consequences.