ON THE MODIFICATION OF CHINESE MARRIAGE LAW

By Zhen Chen

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.