杂志汇中国与非洲

Six draft sections on specific areas of the Civil Code were submitted to the Standing Committee of the National People’s Congress, China’s top legislature, on August 27. One of them, the controversial draft on marriage and family, has aroused much debate among Internet users. It proposes a one-month cooling-off period for couples who wish to part ways and apply to divorce registration agencies. During the cooling-off month after a divorce registration agency receives a divorce application, either the husband or the wife can stop the application. After the cooling-off month, both sides are required to go to the agency for the divorce certificates. Failing to do so will mean the divorce application is canceled automatically.

China has seen growth in its divorce rate in recent years, a large number being impulsive divorces. Statistics from the Ministry of Civil Affairs of China show that the country’s divorce rate has grown for 15 consecutive years from 1.18 million couples in 2002 to 4.37 million in 2017. According to experts, the cooling-off period is expected to give the couples wanting to divorce a grace period to rationally reconsider their decision.

Actually, a cooling-off period in the divorce process is not new to China. Courts in many places, such as Anyue County, Sichuan Province and Danfeng County, Shaanxi Province have previously tried the practice.

There are some people who support the stipulation, believing that the cooling-off period can effectively avoid impulsive divorce, help solve marriage crises and maintain family stability. But those who are against it believe that this is infringing on people’s right to divorce and that the one-month cooling-off period will further deteriorate the relations between incompatible couples, resulting in new problems.

pros

Wang Yuru Deputy Director of Shanghai Psychological Counseling Association

Introducing a cooling-off period to the divorce process is a positive move in people’s lives in the context that China’s divorce rate has seen growth for a successive 15 years. With the pace of modern life, new social challenges have also increased, thus leading to more impulsive divorce cases. These days, more and more young couples do not cherish their marriage and think divorce can solve all the problems they confront in family life. Some casual incidents may push them to divorce, but actually, these trifles are definitely far from harming their love. Divorce affects not only the husband and the wife, but also other family members. In this context, I firmly believe it is a human-centered idea to set a cooling-off period when it comes to divorce. Thus, we must give couples some time to rethink their decisions so as to avoid impulsive divorce.

Jiang Xinru Judge at Anyue County People’s Court of Sichuan Province

Setting a cooling-off period is one of the ways to improve China’s divorce registration system. The current divorce registration system in China is too simple, leaving room for impulsive divorce. Some impulsive couples are irrational and care nothing about the consequences when it comes to divorce, thus resulting in various social ills. Evidence shows that girls growing up in single-parent families are more likely to become unmarried mothers as compared to those who are raised in families where both parents are present and most juveniles who violate laws or commit crimes are from broken families. We cannot ignore this. Stability of families directly influences children’s psychological health and their future development, and indirectly influences their whole life. Impulsive divorce usually brings great psychological impact on both sides of a couple, and negatively influences them in their life and work. Fortunately, the one-month cooling-off period can reduce the occurrence rate of impulsive divorce.

Chen Tingting Lawyer at Dentons Beijing

In the previous divorce lawsuits, the courts usually examined the relations of the couples wanting to divorce and, based on this, made judgments. However, face-to-face challenges of the husband and wife in the courts always increase their contradictions and conflicts and thus negatively influenced the rational judgments and decision making of people involved. In this context, a cooling-off period can avoid such “secondary harm” to the endangered marriage on the courts. On the other hand, even if a couple fails to be reconciled during the cooling-off period, related parties can also have more time to adjust their mindsets. This can reduce the psychological impact from the court judgment on them.

CONS

Jiang Haisong Associate Professor at the Law School of Hunan University

Some local courts have tried the cool-off period while hand­ ling divorce cases. This was done with the consent of both parties. However, the new draft does not seek consent from the people involved. This will bring a series of negative results and the cooling-off period will be misused. For instance, in divorce cases related to domestic violence, mistreating spouses, drug abuse and gambling, or in cases where one party has serious faults and the other party insists on divorce, the cooling-off period should not apply. Otherwise, violators may have more opportunities to harm victims physically and psychologically. In addition, China currently does not have supporting institutions related to divorce such as asset freezing, asset filing and declaration, mediation systems or psychological counseling. Without such supporting institutions, related parties may transfer or hide assets during the cooling-off period, thus increasing complicity of divorce cases.

Zhang Jian Scholar in criminology

It is true that setting the cooling-off period is in line with China’s tradition of “it is better to persuade people into reconcilement, instead of into divorce.” But it is noteworthy that marriage is still the legal basis on which the majority of families are founded in China. However, the focus on China’s society has gradually changed from families to individuals. This reflects the social progress, as well as the unavoidable result of the constant improvement in China’s national governance capacity and organizational structure. We have to respect the right to independence of individuals involved in marriage and provide a more relaxed and tolerant social environment for them. Substantially, marriage can be determined only by the married couple.

Zhang Jun Procurator

Divorce is an important event. The government and the court hope that people can be prudent when it comes to divorce. That’s why the cooling-off period is proposed. But now we are advocating rule of law. While making laws, we should not only think about separate stipulations themselves. More importantly, we should think about this: Are these stipulations based on “parent legislation?” This model of legislation means to make decisions for other people, worrying that they may make mistakes. For instance, parents think divorce is not good and they prevent their children from getting divorced while ignoring their children’s feelings and their independence in marriage. Judicial departments and divorce registration agencies should be neutral, like a referee. In terms of a cooling-off period, actually the divorce registration agency is showing its intention and stance. It is a dangerous trend.