The Marriage Law of People’s Republic of China was adopted at the Third Session of the Fifth National People's Congress on September 10, 1980 and promulgated by Order No.9 of the Chairman of the Standing Committee of the National People's Congress on September 10, 1980; and amended on 28 April 2001 in accordance with the Decision on Amending the Marriage Law of the People's Republic of China.
1. Basic Principles
- The Principle of Freedom of Marriage
It means people have the freedom of both marriage and divorce without the interference of their parents, children and others.
- The Principle of Equity between Man and Woman
- The Principle of Protection of Women, Children and Old People
- The Principle of Monogamy
It has three levels of meaning: Anyone shall not have two or more than two spouses at the same time no matter their gender, social status or how many estates they have got; People who are in a legal marriage relationship cannot marry to others again until divorce or the death of spouse.
- The Principle of Family Planning
The family planning policy, is the population control policy of the People's Republic of China.
i. Elements Required and Prohibited for a Marriage
(1) complete willingness of both man and woman
(2) Legal age for marriage
No marriage may be contracted before the man has reached 22 years of age and the woman 20 years of age.
(1) Prohibition of bigamy
(2) Prohibited degree of kinship between the married parties.
No marriage may be contracted if the man and the woman are lineal relatives by blood, or collateral relatives by blood up to the third degree of kinship.
(3) No marriage may be contracted if the man or the woman is suffering from any disease which is regarded by medical science as rending a person unfit for marriage.
ii. Procedure of Marriage (Registration System)
Both the man and the woman desiring to contract a marriage shall register in person with the marriage registration office. If they meet the conditions provided in this Law, they shall be allowed to be registered and marriage certificates will be issued to them. The husband-and-wife relationship shall be established as soon as they obtain the marriage certificates.
iii. Void Marriage
Causes: There are four kinds of causes to a void marriage. (1) either of the married parties commits bigamy; (2) there is the prohibited degree of kinship between the married parties; (3) before marriage either of the parties is suffering from a disease which is regarded by medical science as rending a person unfit for marriage and which has not yet been cured after marriage; or (4) one of the married parties has not reached the statutory age for marriage.
Legal Effects: Any marriage that is invalidated or annulled is null and void from the very beginning.
A man and a woman in a void marriage are devoid of any rights or duties of a husband and a wife. The property acquired by them during the period of their cohabitation shall be disposed of by agreement between them; if they fail to reach an agreement, the People's Court shall make a judgment on the principle of giving consideration to the interests of the party without fault.
iv. Voidable Marriage
Where marriage is contracted by coercion, the coerced party may appeal to the marriage registration office or the People's Court for annulment of such marriage. Such an appeal for annulment of marriage made by the coerced party shall be submitted within one year from the date of marriage registration. Where the party concerned whose personal freedom is illegally restrained, such an appeal for annulment of marriage shall be submitted within one year from the date of the restoration of the personal freedom.
The legal effect of the annulment of a voidable marriage is as the same as that of a void marriage.
v. Ownership of Property in Marriage.
Unless otherwise agreed by the spouses, the following properties incurred during the existence of marriage shall be jointly owned by the spouses: salary, bonus, income incurred from management and production, intellectual property income, inheritance or gift property and so on.
- Agreement on Ownership of Property
The spouses may come to an agreement on 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. But the content of their agreement shall not involve provisions evading the legal obligations such as obligations for old people and children.
There are two ways to end a marriage, which are divorce and the death of one of the spouses.
The basic principle of our current law is to ensure freedom of divorce and opposition to wanton divorce.
- Divorce by communi consensus (agreement)
Both parties shall apply to the marriage registration office for divorce if both husband and wife are willing to divorce. The marriage registration office, after confirming that both parties are indeed willing to divorce and that appropriate arrangements have been made for their children and the disposition of their property, shall issue the divorce certificates.
Where either the husband or wife desires a divorce, the organization concerned may carry out mediation or he or she may file a suit at a People's Court to start divorce proceedings.
Divorce shall be granted if mediation fails because mutual affection no longer exists.
ii. Divorce Effect
(1) Termination of the husband-and-wife relationship
(2) The disposition of their jointly possessed property
At the time of divorce, the husband and the wife shall seek agreement regarding the disposition of their jointly owned property.
If they fail to reach an agreement, the People's Court shall make a judgment, taking into account of the actual circumstances of the property and following the principle of favoring the children and the wife.
(3) The disposition of the matrimonial debts
More details refer to Interpretation of the Supreme People's Court about Several Problems Concerning the Application of the Marriage Law of the People's Republic of China (II)and relevant judicial interpretations.
At the time of divorce, debts incurred jointly by both the husband and the wife for the common life shall be paid off jointly by them. Where their jointly possessed property is insufficient to pay the debts, or the property is individually owned, the two parties shall agree upon the payment of the debts. If they fail to reach an agreement, the People's Court shall make a judgment.
(4) Application for Compensation
Where the husband and the wife agree in writing that the property acquired by them during the period in which they are under contract of marriage is in their separate possession, if one party has performed more duties in respect of bringing up the child, taking care of the old and assisting the other party in work, it shall, at the time of divorce, have the right to request the other party to make compensation for the above, and the other party shall do so accordingly.
(5) Application for Financial Assistance
If, at the time of divorce, one party has difficulty in supporting himself or herself, the other party shall render appropriate assistance with his or her own property such as his or her residential house.
iii. The Custody of Children
The relationship between parents and children shall not come to an end due to the parents' divorce.
In principle, a child in lactation shall be brought up by the mother after divorce. If a dispute arises concerning which party shall bring up a child beyond lactation and no agreement can be reached, the People's Court shall make a judgment in accordance with specific conditions of both parties and in light of protecting the rights and interests of the child. (More details please refer to relevant judicial interpretations on the care of children)
If, after divorce, one parent has been given custody of a child, the other parent shall bear part or the whole of the child's necessary living and educational expenses.
After divorce, the father or the mother who does not directly bring up the child shall have the right to visit his or her child, and the other party shall have the duty to cooperate.
iv. Compensation for Divorce Damages
Where one of the specific circumstances (prescribed in Article 46 of the Marriage Law of People’s Republic of China) leads to divorce, the unerring party shall have the right to claim compensation.
4. Marriage concerning foreign elements
i. Two requirements of marriage concerning foreign elements
(1) One of the parties is Chinese citizen, another is foreigner (without Chinese nationality)
(2) Marriage, divorce and resumption of marriage happened within the territory of China.
ii. The conflicts of law
Law of the Application of Law for Foreign-related Civil Relations has the specific provisions for the conflicts of law.
Conflicts of law
Choice of law
The laws at the mutual habitual residence shall apply to the personal relation between husband and wife; if there is no mutual habitual residence, the laws of the mutual state of nationality shall apply.
As for the property relation between husband and wife, the parties concerned may choose the applicable laws at the habitual residence, of the state of nationality or at the locality of the main properties of one party by agreement. If the parties do not choose, the laws at the mutual habitual residence shall apply; If there is no mutual habitual residence, the laws of the mutual state of nationality shall apply.
personal and property relations
between parents and children
The laws at the mutual habitual residence shall apply to the personal and property relations between parents and children; If there is no mutual habitual residence, the laws in favor of protecting the rights and interests of the weak in the laws at the habitual residence or of the state of nationality of one party shall apply.
The laws in favor of protecting the rights and interests of the persons being maintained in the laws at the habitual residence, of the state of nationality or at the locality of the main properties of one party shall apply to maintenance.
The laws at the habitual residence of the adopter and adoptee shall apply to the qualifications and formalities of adoption. The laws at the habitual residence of the adopter at the time of adoption shall apply to the validity of adoption. The laws at the habitual residence of the adoptee at the time of adoption or the locality of the court shall apply to the termination of adoptive relation.
NOTICE: The material contained herein is in the nature of general comment and information ONLY and neither purports, nor is intended, to be advising on any particular matter. Readers should not act or rely upon any matter or information contained in or implied by the publication without taking appropriate professional advice.