AMY TANG discusses the impact of China’s new cooling-off period on the trend of divorces and domestic violence.

On May 28, 2020, the National People’s Congress of China passed its first Civil Code. The Code, as a collection of laws related to civil affairs, is a refined version of what is previously called General Rules of the Civil Law of the People’s Republic of China, includes a new law that requires couples to go through a 30-day cooling-off period to re-think their decision of divorce before receiving the official documents. Either party can withdraw their divorce application within this period. If withdrawn, the couple would need to go through another 30-day cooling-off period before filing another request for a divorce. Couples that still wish to dissolve their marriage may go to civil affairs and complete the divorce after the cooling-off period.

The code was proposed to curb the soaring divorce rate. China has witnessed an ever-growing divorce rate since 2003, when couples were first allowed to divorce without going to court, and in 2019, the number rose to more than 4 million. The increasing divorce rate has long been seen as a symbol of Chinese women’s elevating economic freedom in recent decades. This modern improvement can be traced back to the early years of PRC, when Mao Zedong famously said, “women can uphold half of the sky.” Subsequently,  more women are encouraged to enter the workforce, and higher income levels bring about financial independence. Ultimately, Chinese women tend to have more power of discourse within households, and the rise of bargaining power leads to an increased possibility of divorce when dissent happens.

This trend is clearly against the government’s will. Stability has long been one of Chinese government’s ruling principles, and the constant shifting of family structure is a deviation from the ideal. In response to the shifting, cooling-off period is proposed –– Suming Zhou, one of the representatives supporting this civil law, contends that “the cooling-off period shows respect for marriages, stabilizes families, and significantly contributes to a more harmonious society.” Though the implication that “divorced families are unhealthy” seems implausible, Suming Zhou concludes that “families are cells of a society, and the Chinese society needs healthy cells to build our nation to be one that is socialist and distinctly Chinese,” implying that the government is obliged to prevent divorces. 

On the more practical side, the policy also serves economic purposes. It is expected that China will be one of the aging countries shortly due to the lowering of both birth and death rates at the same time. As birth control has gradually become normalized, both in terms of public mindset and accessibility to abortion, more women choose to have fewer children. The birth rate last year was 10.48 per 1,000, hitting the lowest since 1949. Indeed, the government has tried methods to encourage birth-giving: in 2013, the one-child policy was reformed into a two-child policy, allowing couples to have another child if one of the parents is a single child himself/herself. However, though the 12th Five Year Plan (covering the period from 2011-2015) said China’s total population should reach 1.39 billion in 2015, predictions in 2014 suggested that the actual figures for 2015 are likely to fall 15 million below expectation. Subsequently, in 2015, all couples are encouraged to have a second child.

Nevertheless, such efforts did not achieve their purpose. The downward trend in birth rates was reversed for a while but quickly climbed up again. Simultaneously, better medical services lowers death rate, contributing to an aging population. The UN World Population Aging Report from 2019 suggests that mainland China will have the fourth-highest rapidly growing aging population globally. The statistics are to be translated into an increase in pension and medical insurance spending, which are mostly provided by the government in China. A lower labor-force participation rate is also to be expected –– with fewer working-age adults, manufacturing, which is one of the dominating revenue sources in China and depends on a constant supply of cheap labor, would no longer be equally attainable as it used to be. 

Source: United Nations, Department of Economic and Social Affairs, Population Division (2019). World Population Prospects 2019. 

To conclude, it is legitimate for the Chinese government to put “increasing birth rate” as one of its priorities to cope with an aging population and sustain a sufficient workforce. On this note, it seems reasonable that the civil code on the cooling-off period passed almost unanimously (with only two votes against and five abstaining). But will the civil code serve its purpose?

The provision went viral on Weibo, a Chinese social media platform that functions like Twitter, shortly after its publication. However, despite the attention, most of the feedback was not positive. Under the hashtag “oppose cooling-off period,” (#反对结婚冷静期) thousands expressed concerns over the effectiveness of the law. Some commented that the cooling-off period is deterring them from getting married and suggested that rather than mandating a cooling-off period before a divorce, there should be one instituted before marriage. One of the representatives of the National People’s Congress of China, Shengnan Jiang, told the state media that “the cooling-off period is asking the many to pay the price for the few who have marriage problems,” suggesting that among those who seek a divorce, few decide rashly –– the majority of divorce seekers are unnecessarily trapped in unsuccessful marriages for an extra month. Regardless of dissenting opinions, similar codes on cooling-off period seem to be successful in controlling divorce rates in South Korea. In 2005, South Korea ended its system where divorce can happen instantly and instituted a mandatory deliberation period, which, depending on the court, ranges between one to three weeks, before granting divorce petitions. A year later, the number of divorces in South Korea fell by about 25%. It seems that though opposing opinions on the civil code now prevail, it might still achieve its aim by curbing divorce rates. But is the cooling-off period just within the context of Chinese society?

Passing the law, the Legislative Affairs Commission with the NPC Standing Committee explained that the cooling-off period does not apply to extreme situations, such as domestic violence, family abuse, and drug use. These are excluded and should be solved by independent lawsuits, but the lack of clarity over the appropriate course of action still leaves a plethora of questions unanswered.

Take the case of domestic violence. Without the cooling-off period in place, couples seeking divorce on the ground of domestic violence are similar to couples seeking divorces for any other reason –– they are divorced on the spot. With the new code, those who seek immediate divorce now need to file a request to the court to expedite the divorce process. However, recognition of domestic violence does not come easily in China. The current definition of domestic violence in China includes both physical and psychological violence. However, it does not cover marital rape or economic control (i.e. One of the partners is de facto controlled by the other due to financial circumstances.) between intimate partners, both of which are recognized as domestic violence internationally. The law is also ambiguous to same-sex partners. Among all cases filed on the ground of domestic violence in 2018, only one-sixth ended up in court, and among the one-sixth, two-thirds were rejected at the first hearing. That means only one-ninth of all would-be-domestic-violence cases proceeded to the second hearing. This happens for two possible reasons: as judges aim for performance targets with growing caseloads, denying a divorce becomes much quicker than approving one; at other times, judges can be threatened by the party unwilling to divorce, thereby choosing to deny the application in fear of their safety. Consequently, divorce is not usually granted, even in cases of domestic violence.

If pursuit of divorce on the ground of domestic violence does not work, victims would now have to seek protection from the government by going through another process, which is equally, if not more painful. As victims call the police for help, only a fraction of their cases will be first classified as domestic violence. Among those cases, few will receive protection orders –– the only and ultimate end that a victim is supposed to hope for in these cases, which function as a deterrent to potential future perpetrations, and with a protection order, the victim will be provided another housing if he/she chooses to not live with his/her partner. Nevertheless, violations of protection orders usually only result in a fine of approximately $145 and a 15-day detention, significantly undermining the law’s effectiveness. For cases that are not classified as domestic violence, they are usually categorized as “family disputes”, which are to be solved by community workers by consultation, who do not have the power to issue protection orders. Weiping, a Beijing-based nonprofit that focuses on women’s rights issues, analyzed the handling of personal safety protection order applications by the Shanghai government between March 2016 and September 2019, and found that Shanghai courts accepted just over half the applications, with 34% rejected and 12% withdrawn. 

Graph: The Procedure and Status Quo of Domestic Violence Cases in China

Either way, it seems that victims of domestic violence are trapped –– the trap has long existed, and is further intensified with the cooling-off period in place, if no change happens to the relevant regulations. While public responses have been generally negative towards the current rules of this new deliberation period, a conclusion should be made at point. After all, the civil code has only been in practice for less than a month, and as Chen Wang, one of the representatives, suggests, “there should be more discussions and refinement for this code.”

Amy Tang can be contacted at amy.tang@yale.edu.