Deborah Jeff
18 January 2022

Rising divorce rates in China – Infidelity no longer a cause for divorce


Deborah Jeff, Partner and Head of Family at Simkins LLP, examines how Chinese government changes to divorce law fly in the face of what is reasonable and tolerable.

 Following a change in the law in 2003, which saw an easing of the status quo, China’s divorce rate has steadily increased.  It has since been possible to divorce not just by litigation through the courts, but also more simply, quickly and cost effectively, by agreement between the couple registered with the Ministry of Civil Affairs.  Couples could be divorced within 24 hours from registration leading to concern that this fast-tracked process undermined the sanctity of marriage, resulting in marriages being dissolved without all due reflection.

Notwithstanding its more relaxed route to divorce in recent years, China has still seen fewer people getting married.  A change in social attitudes and women becoming more financially independent appear to be the main drivers. Despite government efforts to increase population growth and avert a demographic crisis, China’s birth rate has now fallen to its lowest level in six decades.  There is widespread concern that this combination is storing up problems for the economy, exposing vulnerabilities that the country will want to try and reverse immediately.

 

More children needed

The Chinese government has sought to resolve the trend by promoting family values and encouraging couples to have more children – since May 2021, permitting them to have up to three children rather than the previous two-child limit.

They have also changed the fast-tracked divorce by agreement route to incorporate a ‘cooling off period’.  Once a divorce agreement is filed, the parties must now wait 30 days before being able to finalise their separation, with either party in such time being able to prevent the divorce going ahead.  Sensible exceptions are supposedly in place – for example, in cases of domestic abuse.

Some have argued that the new process breaches personal freedoms and the ‘right’ to divorce when one wishes.  It is difficult to see that argument gaining traction; waiting just 30 days after previously making promises to spend the rest of your lives together seems a nominal period in light of the significant vows made.  Many jurisdictions have a similar requirement.  The ‘cooling off’ period, already part of our own divorce process in England and Wales, is about to be extended.  Currently, after decree nisi (the first decree, stating that the court will allow the divorce to go ahead) the petitioner must wait six weeks and one day before applying for decree absolute, which dissolves the marriage.  The new no-fault divorce legislation that will become law in April this year extends the cooling off period to twenty weeks.  Although the new law sees the welcome removal of the need to blame one another to begin divorce without a period of separation, it also forces the parties to reflect for a much greater period of time on whether they wish to proceed with ending their marriage.

Whether one supports the institution of marriage or not, it is difficult not to respect the need for a cooling off period.  Few would marry without considerable thought and the same applies when considering divorce. So far so good, therefore, with the changes in China.

 

Forced to remain together

It was therefore somewhat surprising that the divorce court in China announced on 2nd January that couples will now be forced to remain together despite infidelity. The high court of Shandong published an article stating that an affair was not a ‘stable extramarital relation’ and that the court would prevent ‘frivolous dissolutions’.  The article was removed shortly after, perhaps indicating an awareness of the strength of feeling it would provoke.

Being a family lawyer gives one a privileged insight into relationship dynamics: what works, what doesn’t and the issues that tend to play out time and again. By working with mental health practitioners over the years. family lawyers are able to see what is healthy for both partners and their children or, more importantly, what isn’t.

Marriage is not a uniform institution and certainly no two marriages are the same.  What works for one family won’t always work for another. There are marriages that accommodate no intimacy after one partner withdraws, but the marriage carries on, sometimes with an understanding that the partner who didn’t want to withdraw given approval to have other relationships.  Quite often the couple will still operate socially as a married couple, whilst privately respecting the arrangement between them in other respects.  Friends and even family members may be unaware of the ‘terms’ of their arrangements, and why would they?  It’s a private matter between two people.

 

Surviving infidelity

Some marriages are open, with both partners having other liaisons.  Some cultures actively turn a blind eye to such matters, whilst for others it would breach the most fundamental principles of their culture and religion.

But emotional wellbeing in marriage, civil partnerships and all other relationships cuts across all cultures and religions.  Whilst respecting the law in each jurisdiction and culture, in the more common set up of two people in a relationship being faithful to each other, the approach by the Chinese divorce court seems to fly in the face of what is reasonable and tolerable.  Some of those more common, traditional marriages do survive infidelity but only after significant hard work, reflection and counselling, and those remain the exception.  More often, marriages don’t survive infidelity and trust is irretrievably broken.  The impact on the wronged partner’s emotional and psychological wellbeing in such circumstances would likely be immense: being forced to remain legally tied to a partner who has the support of the state in committing adultery.  Children of the family witnessing that dynamic will store up significant problems for their own future relationships.

 

No fault divorce

Infidelity can be something that happens for many reasons, including bad behaviour by the other party, needs not being met, and a way of finding comfort elsewhere after perhaps years of trying to make a marriage work.  Clients often want to blame the other person for the marriage ending as a result of infidelity and, rightly or wrongly, it can be of significant importance to them that a marriage ends on their terms.  But it reaches the same conclusion – the marriage ends.

The recent decision made by the Chinese court underscores how far our own family justice system has come with regards to divorce.  After years of campaigning, practitioners and clients can breathe a sigh of relief on 6th April when no-fault divorce replaces the system of some fifty years.  The impact of having to play the ‘blame game’ is too extensive to describe here, but has a negative impact on co-parenting for many years after the lawyers have left the case.

So, bring on no fault divorce, for the common sense it brings to cases and the emotional wellbeing of parents and children.  But excusing infidelity in China will most likely produce problems for the emotional future of the next generation.

Deborah Jeff, Partner and Head of Family at Simkins LLP

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