Marriage Law of
the People's Republic of China
1980-- amended according to the Decision on Amending
the Marriage Law of the People's Republic of China made at the
21st meeting of the Standing Committee of the Ninth National People's
Congress on April 28, 2001.
Contents
Chapter
One General Principles
Chapter
Two Marriage
Chapter
Three Family Relations
Chapter
Four Divorce
Chapter
Five Remedies and Legal Liabilities
Chapter
Six Supplementary Provisions
Chapter One General Principles
Article 1 This Law lays the basic principles for
marriage and family relations.
Article 2 A marriage system based on freedom,
monogamy and equality between man and woman shall be implemented.
The lawful rights and interests of women, children
and old people shall be protected.
Birth control shall be practiced.
Article 3 Marriage arranged by any third party,
mercenary marriage and any interference in the freedom of marriage
shall be prohibited. Any exaction of money or property by means
of marriage shall be prohibited.
Bigamy shall be prohibited. No one who has a
spouse may cohabit with any other person.
Familial violence shall be prohibited.
Maltreatment or desertion of any family member
shall be prohibited.
Article 4 Husband and wife shall be truthful
to and respect each other. Family members shall respect the old,
take good care of the underage, and help each other so as to maintain
an equal, harmonious and cultured matrimonial and familial relationship.
Chapter Two Marriage
Article 5 Marriage shall be based on the complete
willingness of both man and woman. No party may coerce the other
party to enter into marriage, and no third party may interfere
with the marriage.
Article 6 In order to get married, the man shall
not be younger than 22 years old and the woman shall not be younger
than 20. Late marriage and late child birth shall be encouraged.
Article 7 Marriage shall be prohibited in any
of the following circumstances:
a. if the man and the woman are lineal relatives
by blood or collateral relatives by blood up to the third degree
of kinship;
b. if either the man or the woman is suffering
from any disease that is regarded by medical science as rending
a person unfit for marriage.
Article 8 The man and woman who apply for marriage
shall go to the marriage registration authority in person to get
registered. If they meet the requirements of this law, they shall
be registered and be given a certificate of marriage. The obtaining
of a certificate of marriage means the establishment of the relationship
of husband and wife. Those who live as husband and wife without
registration shall go through remedial registration procedures.
Article 9 Having gone through the registration
procedures, the woman may become a member of the family of the
man and the man may also become a member of the family of the woman,
whatever is agreed upon by both parties.
Article 10 If any of the following circumstances
occurs, the marriage shall be invalid:
a. if either party is a bigamist;
b. if both parties are in the kinship that is
forbidden from getting married by law;
c. if any party has suffered from any disease
that is held by medical science as rending a person unfit for getting
married and the disease has not been cured after marriage;
d. if any party has not come up to the legitimate
age for marriage.
Article 11 In the case of intimidated marriage,
the intimidated party may apply to the marriage registration authority
or the peoples court for canceling the said marriage. The intimidated
party shall make the application within one year since the day
of marriage registration. Where any party who is unlawfully confined
in personal freedom applies for canceling a marriage, he or she
shall make the application within one year since the day he or
she resumes personal freedom.
Article 12 An invalid or cancelled marriage shall
be invalid ab initio, and the parties concerned do not have the
rights and obligations of the husband and wife. The property incurred
during the term of cohabitation shall be disposed of by both parties
upon agreement. Where no agreement is achieved, the people's court
shall make a judgment according to the principle of favoring the
innocent party. The property rights of the party to a lawful marriage
shall not be infringed upon in the disposal of the property relating
to a marriage invalidated by bigamy. The relevant provisions of
this law concerning parents and children shall apply to the children
borne by both the parties concerned.
Chapter Three Familial Relations
Article 13 Both husband and wife shall be equal
in familial status.
Article 14 Both husband and wife are entitled
to have his or her own name.
Article 15 Both husband and wife have the liberty
to participate in production, work, study and social activities.
Either party may not confine or interfere with the activities of
the other party.
Article 16 Both husband and wife shall be under
the obligation of following the policy of birth control.
Article 17 The following properties incurred during
the existence of marriage shall be jointly owned by both husband
and wife:
a. wages and bonuses;
b. any income incurred from production or management;
c. any income incurred from intellectual property;
d. any property inherited or bestowed, with the
exception of those as mentioned in Article 18 (c) of this law;
e. other property that shall be jointly owned.
Both husband and wife shall have equal rights in the disposal of
jointly owned property.
Article 18 The following property shall be owned
by either the husband or the wife:
a. the pre-marital property that is owned by one
party;
b. the payment for medical treatment or living
subsidies for the disabled arising from bodily injury on either
party;
c. the articles of living specially used by either
party;
d. other property that shall be used by either
party.
Article 19 Husband and wife may come to an agreement
whether the property incurred during the existence of marriage
or prior to marriage to be owned by each party, to be jointly owned
or partially owned by each party and partially owned by both parties.
The agreement shall be made in written form. Where there is no
such agreement or it is not explicitly agreed upon, the provisions
of articles 17 and 18 shall apply.
The agreement concerning the property obtained
during the existence of marriage and pre-marital property shall
be binding upon either party.
Where husband and wife agree to individually own
their property, the debt of either the husband or the wife shall
be cleared off by the individual property of the debtor if the
creditor has the knowledge of the said agreement.
Article 20 Husband and wife shall be under the
obligation of supporting each other. Where either party fails to
perform the obligation of supporting the other party, the party
that needs support shall be entitled to ask the other party to
pay aliments.
Article 21 Parents shall be under the obligation
of upbringing and educating their children, and the children shall
also be under the obligation of supporting their parents. Where
the parents fail to perform their obligations, the underage children
and the children without the ability to live an independent life
shall be entitled to ask their parents to pay aliments.
Where any child fails to perform his or her obligations,
the parents thereof who are unable to work or who are living a
difficult life shall be entitled to ask their child to pay aliments.
It shall be forbidden to drown or desert infants
or commit any kind of infanticide.
Article 22 A child may take the surname of either
the father or mother.
Article 23 Parents shall have the rights and obligations
of protecting and educating their children. Where the underage
child causes any damage to the state, collective or other person,
the parents thereof shall take civil liabilities.
Article 24 Both husband and wife shall be entitled
to inherit the property of each other. Both parent and child shall
be entitled to inherit the property of each other.
Article 25 A natural child shall have the equal
rights of a legitimate child, and shall not be harmed or discriminated
against by any person. The natural father or mother that does not
directly upbring his or her natural child shall undertake the expenses
for the living and education of the natural child until the child
is able to live an independent life.
Article 26 The state defends lawful adoptions.
The relevant provisions in this law concerning the relationship
between parents and children shall be applicable to foster parents
and foster children.
The rights and obligations between the foster
children and natural parents are eliminated by the establishment
of the adoption.
Article 27 The step parent and the step child
shall not maltreat or discriminate against one another.
The relevant provisions in this law concerning
the relationship between parents and children shall be applicable
to step parents and step children.
Article 28 Capable grandparents and maternal grandparents
shall be under the obligation of upbringing the grandchildren and
maternal grandchildren whose parents have deceased or are incapable
of upbringing their underage children. Capable grandchildren and
maternal grandchildren shall be under the obligation of supporting
the grandparents and maternal grandparents whose children have
deceased or whose children are incapable of supporting them. Article 29 Capable elder brothers and sisters
shall be under the obligation of supporting their younger brothers
and sisters whose parents have deceased or whose parents are incapable
of supporting them. The younger brothers and sisters who have been
brought up by the elder brothers and sisters shall be under the
obligation of supporting their elder brothers and sisters who are
without labor capabilities and without sources of living aliments.
Article 30 Children shall respect the matrimonial
rights of their parents and shall not interfere with the digamy
and post-digamous life of their parents. The obligation of the
children to support their parents does not terminate as a result
of the change of matrimonial relationship of their parents.
Chapter Four Divorce
Article 31 Divorce shall be allowed if both husband
and wife are willing to divorce. Both parties shall apply to the
marriage registration authority for divorce. The marriage registration
authority issues a certificate of divorce after confirming that
both parties are indeed willing to divorce and have made proper
arrangements for their children and have properly disposed of their
property. Article 32 Where either the husband or wife applies to
get divorced, the departments concerned may make mediations, or
he or she may file a suit at the peoples court for divorce. The
peoples court shall make mediations in the process of hearing a
divorce suit; divorce shall be granted if mediation fails because
mutual affection no longer exists. Divorce shall be granted if
any of the following circumstances occurs and mediation fails:
a. either party is a bigamist or a person who
has a spouse but co-habits with another person;
b. there is family violence or maltreatment or
desertion of any family member;
c. either party is indulged in gambling, drug-abuse
or has other vicious habits and refuses to mend his or her ways
despite of repeated admonition;
d. both parties have lived separately due to lack
of mutual affection for up to two years;
e. other circumstances that have led to the nonexistence
of mutual affection as husband and wife.
If either party has been declared by court as
to be missing and the other party applies to be divorced, divorce
shall be granted.
Article 33 The application of the spouse of a
soldier in active service for divorce shall be granted by the soldier
unless the soldier is in grave fault.
Article 34 The husband may not apply for divorce
when his wife is pregnant or within one year after giving birth
to a child or within six months after terminating gestation. This
restriction shall not apply to the case where the wife applies
for divorce or the peoples court deems it necessary to accept the
application of the husband for divorce.
Article 35 If, after divorce, both parties desire
to resume their husband-and-wife relationship, they shall go through
the registration procedures at the marriage registration authority.
Article 36 The relationship between parents and
children does not terminate due to the divorce of parents. After
the divorce of the parents, the children remain the children of
both parties no matter they are supported directly by either the
father or mother.
Both father and mother shall, after divorce, have
the right and the obligation of upbringing their children.
It is the principle that the children during lactation
shall be brought up by their mother after the divorce of the parents.
If any dispute arises concerning which party shall bring up the
children beyond lactation, such dispute shall be settled by the
peoples court according to the specific conditions of both parties
and in light of protecting the rights and interests of the children.
Article 37 If, after the divorce of parents, the
children are to be brought up by either party, the other party
shall undertake a part or all of the necessary living and education
expenses. The amount and term of payment shall be agreed upon by
both parties; if no agreement is achieved, the amount and term
shall be decided by the people's court. No agreement or judgment
concerning the expenses for the living and education of the children
may in no way prevent the children from making reasonable requests,
where necessary, to either parent for an amount beyond the amount
as determined in the said agreement or judgment.
Article 38 After divorce, the parent that does
not directly bring up the children has the right to visit the children,
and the other party has the obligation to give assistance. The
way and time for exercising the right of visiting children shall
be agreed upon by the parties concerned. In case no agreement is
achieved, they shall be decided by the people's court.
If the visit of either the father or mother is
harmful to the soundness of the body and mind of the children,
the said right shall be terminated by the people's court. When
the reasons for terminating the said right disappear, the right
shall be resumed.
Article 39 At the time of divorce, both husband
and wife shall agree upon the disposal of the jointly owned property;
if they fail to come to any agreement, the people's court shall
decide the disposal thereof, taking into consideration the actual
circumstances of the property and following the principle of favoring
the children and the wife.
The rights and interests that both husband and
wife enjoy in the contracted management of land shall be protected
by law.
Article 40 In the case both husband and wife agree
to separately own the property they respectively obtain during
the existence of their marriage and either of them has spent considerably
more effort on supporting children, taking care of the old or assisting
the other party in work, etc, this party shall be entitled to demand
the other party to make compensations at the time of divorce, and
the requested party shall make compensations.
Article 41 At the time of divorce, the debts jointly
incurred by both husband and wife for the common life shall be
paid out of the jointly owned property. If the jointly owned property
is not enough to pay the debts or if the property is individually
owned, both parties shall agree upon the payment of the debts.
If both parties fail to reach any agreement, the people's court
shall decide on the payment of the debts.
Article 42 If, at the time of divorce, either
party has difficulties in life, the other party shall render appropriate
assistance from his or her personal property like house, etc. Specific
arrangements shall be agreed upon by both parties. In case no agreement
is agreed upon, the people's court shall make a decision.
Chapter Five Remedies and Legal Liabilities
Article 43 In case of familial violence or maltreatment
of any family member, the victim thereof shall be entitled to make
petitions, and the villagers' committees, the relevant urban residents'
committee, villagers' committee or the entity where the victim
is a staff member shall make dissuasions or mediations.
The victim shall be entitled to make petitions
concerning the familial violence that is happening, and the relevant
urban residents committee or villagers' committee shall make dissuasions,
and the public security organs shall stop such acts.
Where the victim of family violence or maltreatment
makes a petition, the public security organ concerned shall give
administrative punishment to the actor according to the provisions
on the administration of public security.
Article 44 Any member deserted by his or her family
shall be entitled to make petitions, and the relevant urban residents'committee,
villagers' committee or the entity where the victim is a staff
member shall make dissuasions or mediations.
Where any person deserted by his or her family
makes a petition, the people's court shall make a judgment concerning
the payment of expenses for upbringing, supporting and maintenance.
Article 45 Criminal liabilities shall be meted
out to bigamists and those who has committed familial violence
or maltreated or deserted any family member so seriously as to
have constituted a crime. The victim may file a private prosecution
at the people's court according to the provisions of the criminal
procedure law; the relevant public security organ shall make investigations
and the people's procuratorate concerned shall make a public prosecution
according to the provisions of law.
Article 46 In any of the following circumstances
which has led to the divorce of husband and wife, the innocent
party shall be entitled to claim damages:
-
bigamy;
-
cohabitation between a person who has a
spouse but co-habitats with a third person;
-
familial violence;
-
maltreating or deserting any family member.
Article 47 If, at the time of divorce, any party conceals,
transfers, sells or destroys the property jointly owned by
both husband and wife, or fabricates any debt in an effort
to seize the property of the other party, the person who conseals,
transfers, sells or destroys the jointly owned property or
fabricates the debt may, in the partition of jointly owned
property, have a smaller or even no share. If any party discovers
any of the afore-mentioned acts after divorce, he or she may
file a suit at the peoples court to apply for repartitioning
the jointly owned property. The people's court concerned may
punish any of the acts that hampers the civil litigation concerning
the afore-mentioned acts according to the civil procedure law.
Article 48 In case any person refuses to execute
the judgment or decision on the payment of expenses for upbringing,
supporting or maintenance, the partitioning or inheritance of property
or visiting the children, the execution may be enforced by the
people's court in accordance with the law. Relevant persons and
entities shall be responsible for giving assistance to the enforcement.
Article 49 Where there are different provisions
in other laws concerning the illegal acts and legal liabilities
in the area of marriage or family, such provisions shall be followed.
Chapter Six Supplementary Provision
article 50 The people's congresses of the autonomous
regions and the standing committees thereof are empowered to formulate
adaptations according to the specific conditions of the marriage
and family of the ethnic group of the local place. The adaptations
formulated by the autonomous prefectures and counties become effective
after being ratified by the standing committee of the people's
congress of the corresponding province, autonomous region or municipality
under the direct control of the central government. The adaptations
formulated by the autonomous regions become effective after being
ratified by the Standing Committee of the National People's Congress.
Article 51 This Law shall become effective as
of January 1, 1981.
On the Modification of
the Marriage Law of P.R.C
Author: Zhen CHE
The marriage Law of People_s Republic of China
was modified in 2001. The amendment adapts to the variations in
the economic development and social changes.
There are two main deficiencies in the Marriage
Law of P.R.C. before the modification, first of which is that the
clauses are mostly abstract principles and lack of systematically
completeness. Some basic systems were not set up in the former
law, such as system of void marriage and voidable marriage and
compensation for the divorce injuries etc. The second is lack of
modification and compliment. Ever since its enforcement in 1980,
the Marriage Law had not been modified in spite of the severe change
occurred in the real life of Chinese marriage and living conditions.
Therefore, the modification of the Marriage Law was not only necessary
but also in emergency.
After the modification, several new systems are
established and some clauses are defined clearer and more positive.
In the following, the main facets of the amendment will be enumerated
and commented.
In the first place, the system of void marriage
and voidable marriage has been induced in the new Marriage Law
of P.R.C. In the Article 10 of the Marriage Law it is stipulated
that if one of the four circumstances of marriage is fulfilled,
the marriage will be announced void by courts. The four circumstances
are bigamy, consanguineous marriage that is forbidden by law, having
certain illness before the marriage that is deemed in medicine
not supposed to marry and not cured after marriage and having not
reached lawful matrimonial age. In the Article 11, it is stipulated
the marriage that can be annulled, that is, voidable marriage.
The stipulations of the voidable marriages contain the cause and
the time limit of petition. In the Article 12, the legal consequences
of the void marriage and the voidable marriage are stipulated.
The consequences are that such marriages are void from the very
beginning and the parties do not enjoy marital rights or bear marital
obligation. The property that was obtained in the cohabitant period
is to be dealt with according to the parties_ agreement and if
no agreement is reached, the court will decide in the principle
of considering the party with no fault. As for the bigamy, the
interests of the party in a legitimate marriage shall not be infringed
and the stipulations in the law of relation between parents and
children are applied to the children in bigamy.
Secondly,
the law is strengthened to address the situation of _second concubine . Contrary to the media
dissemination before the modification that criminal responsibility
will be included in the problem of _second concubine , the
new Marriage Law just adopt the civil liability. However, it is
still strengthened in the field. The new Marriage Law abandoned
the distinction of bigamy in lawful form and bigamy as a matter
of fact. The bigamy in the new Marriage Law is only the bigamy
in lawful form. The bigamy as a matter of fact is included in the
cohabitation done by people who have other legal spouse. In the
Article 46, both bigamy and the cohabitation of people who have
spouse are conditions on which the other party is entitled to damages.
The
_second concubine is the typical example
of _cohabitation with other s done by people who has spouse .
Marriage is presumed to be a deed between certain man and woman
who bear the loyal obligations. To cohabit with other people during
the period of marriage is out of question the breach of the loyal
obligation and the violation of the other party_s consortium. However,
such rights and obligations can be stipulated in the Marriage Law.
Criminal responsibility has no legal basis to be included into
this part of law, for if so, the execution of law will be deprived
of corresponding basis.
Thirdly, the marital property system is improved.
In the former Marriage Law, in the Article 13, it is stipulated
that the property gained by husband or wife in the duration of
the marriage is co-owned by the couple, unless special agreements
exist between them. The Article 17 of the modified Marriage Law
enumerated the range of the couple_s common properties. They are
wages, bonus, income from production and business, income from
intellectual property, property obtained from in heritance or gift
and other properties that is supposed to be of co-ownership. The
Article 18 stipulates the properties specially owned by one party
of the couple. They are property of a party before the marriage,
the medicine expenses or allowance for disability etc., property
that is defined to belong to only one party in the will or the
contract of gift, special articles for living of one party and
other properties that ought to be owned by one party of the couple.
In the Article 19 it is dealt with the problem of couple_s agreement,
which includes the categories of the agreement (separate ownership,
co-ownership, partly separate ownership or partly co-ownership),
the form of the agreement (must be in written form), the application
of law when no agreement exists or the agreement is not sufficiently
definite and clear and also the binding validity and the repayment
of individual debts under the agreement.
The marital property system has always been an
essential system in the family and marriage legal regulations.
The former Article 13 was too abstract and too general to regulate
the more and more complicated property relationship and separate
ownership makes it clear to people what property ownership should
be applied to a certain property. The agreement system respects
the right to dispose the property and embodies the legal principle
of the autonomy of the parties_ will. In fact, in life, many couples
delimit the mutual properties reasonably through agreements. Yet
due to the vacancy of the legal basis of the time limit, form,
validity of the agreements, disputes arise easily. That the new
Marriage Law stipulates such way on the level of the system is,
more or less, a progress in the field.
Fourthly, the divorce criteria have been completed.
In the 1980 Marriage Law, the general principle of incompatibility
is adopted. Even though the general principle, to some extent,
was able to show the corpus content of marriage, yet in practice,
such criterion of divorce has defects that cannot be completed
or overcome by itself. In the long run, the Supreme Court of People_s
Republic of China had to apply the judicial interpretations to
guide the lower courts_ jurisdictions |
