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Difficult Split

A year after a 30-day mandatory cooling-off period was introduced for civil divorce, more couples are turning to lawyers, which increases time, costs and results in clogged courts

By Xie Ying , Chen Liyuan Updated May.1

Adultery, declared a court in the eastern Chinese province of Shandong, does not provide sufficient legal grounds for divorce. Public outrage was swift, as was the pushback from the legal community. In an attempt to clarify China’s divorce-related clauses in the Civil Law and take aim at what it described as “impulsive divorce,” the High People’s Court of Shandong Province stirred up a hornet’s nest.  

In an article published on its WeChat account on January 2, the court argued that as most people who cheat on their spouses do not live with their paramours, it cannot be cited as a solid reason for divorce. Merely “getting a room” with a person other than one’s spouse was not enough.  

“When a married person is caught cheating, their behavior is not cohabitation as long as they do not live with the lover for a long, steady period, so their spouses cannot definitely file for divorce for this reason. Furthermore, they cannot use adultery as the reason to request compensation for damages,” the article read.  

Faced with the barrage of criticism, the court took the article down. The court had misinterpreted the law, legal scholars said. Every citizen has the right to ask for divorce, no matter the reason, said Zhou Youjun, a professor from the Law School of Beihang University in Beijing in a commentary he wrote on chengdu.cn. “It is the court’s responsibility to decide whether to grant the divorce. This difference should not be confused,” Zhou wrote.  

China’s latest version of the Civil Law which took effect on January 1, 2021 lists several situations that may prove a broken relationship, including bigamous marriage or living with a third party, domestic violence, abuse or abandonment, gambling, taking drugs or living apart for at least two years due to a broken relationship, with judges given discretion to rule on other situations.  

Based on the clause that states “living with a third party,” the Shandong court article appears to have based its argument on the law’s failure to state explicitly that an “extramarital affair” is not a reason alone for divorce, lawyers told media. While some legal experts said that since it is absent from the law, a judge would have discretion on whether to grant a divorce because of adultery, others said it is a misinterpretation. 
The article was published a year to the day after China’s new Civil Law came into effect, which mandated a 30-day cooling off period for couples who file to put a mutual end to their marriage, a civil process which takes place at a local civil affairs bureau. However, if during the cooling-off period one party withdraws, the whole process is stopped, perhaps forcing the couple to go through lawyers and the courts, a more costly and lengthy process.  

The timing of the article gave rise to suspicions that authorities were trying to make it even harder to divorce, thus lowering the country’s soaring divorce rate. In 2020, 3.73 million couples registered for divorce with civil affairs agencies, according to the Ministry of Civil Affairs, about three times that in 2001. At the same time, fewer people are getting married. In 2020, the ministry said 8.13 million couples got married, a decline of 13.9 percent year-on-year and 39.6 percent less than the peak time in 2013 when the number of marriage hit 13.47 million.  

Marriage is like a city under siege, Chinese people say. If you’re inside, you want out, but if you’re outside, you want in. Now, many people prefer to stay outside altogether, as it’s become so much harder to escape once you’re in. 

From Agreement to Litigation 
Before the Civil Law took effect in 2021, local civil affairs agencies issued a certificate of divorce to couples as long as they both agreed on the terms of their divorce. But under the 2021 Civil Law, applications are void if one party disagrees during the 30-day cooling-off period, or if the couple fails to return within 30 days after the cooling-off. Prior to the new law, as long as couples had reached agreement on issues like division of assets and children, the process could be completed in one day.  

The cooling-off requirement caused many couples to forgo this procedure and go directly to divorce lawyers to ensure the success of their petition, causing a backlog of cases. Appointments are now scarce and law firms are inundated with clients, lawyers interviewed by NewsChina said. Some couples have turned to scalpers to get an appointment, media reported.  

“We used to ask our clients to negotiate themselves before turning to legal action, but this year, many clients prefer to start the legal process straight away,” Du Qin, a lawyer at Beijing-based Yinke Law Firm Shenzhen Branch, told NewsChina. “I think it’s because of the cooling-off period. People worry there’ll be stumbling blocks in that time that will cause trouble, so they’d rather just go straight to the court,” she added. 

A legal brief published in December 2021 lends weight to Du’s experience. The People’s Court of Anyue County, Sichuan Province released a brief on issues they found with the cooling-off period. It revealed that couples go direct to divorce lawyers to avoid the coolingoff period, which has increased the number of divorce petitions heard in court.  

Anyue court heard 1,163 divorce cases from January to November 2021, 160 more than the average annual number from 2018 to 2020.  

“A great many divorce cases that could have been settled in a day before are now flooding to the courts due to the cooling-off period,” Zhang Fengchun, a former judge who now works at the W&H Law Firm in Beijing, told NewsChina, “Couples still have to wait for an undefined period of time [for courts to look into it], and courts are understaffed because of the amount of divorce cases piling up,” she added.  

Zhang and Du believe that divorce litigation, which generally requires mediation before the first court appearance, does not save time compared to the previous system of uncontested divorce, especially when the number of cases is quickly rising.  

“Taking Shenzhen where I work for example, it usually takes two months for a court to accept a case, appoint a judge and mediators, mediate and investigate and finally set a court date,” Du said.  

Yi Yi, a lawyer at Beijing-based Jiali Law Firm, agrees. “We are usually informed which judge will preside one to two months after we submit the documents and the time of the first trial two to three months later,” she told NewsChina, adding that a judge in Beijing told her that she presided over 400 divorce cases in 2021, double the average annual number her court heard in the last few years.  

“If the number keeps rising, the courts will collapse first,” Zhang said. 

Cooling-off Risks 
Another issue, according to Anyue court’s brief, is of risks to parties in the divorce during the cooling-off period, which could include domestic violence. Although many experts and the public called to exclude divorce due to domestic violence from the coolingoff period, it was not written into the new Civil Law.  

“Marriage is enclosed and private and it is very easy for the two parties to go to extremes if their conflicts are not solved effectively,” Zhang said.  

An effective measure is to apply for a judicial protection order, but Zhang said in her experience, these orders are not very effective in China unless there is community help and strong supervision from police.  

But Du Qin said that most abuse victims, especially in big cities, start with legal action, so she does not think the cooling-off period will influence cases where domestic violence is involved as much as people think. “In Shenzhen, few cases involving domestic violence are settled by [uncontested divorce] and local courts have set loose requirements for applying for a judicial protection order,” she said.  

Gao Lei, a lawyer at Zhilin Law Firm in Beijing, agrees. “Most cases involving domestic violence are not settled by mutual agreement, so they will not be influenced by the cooling-off period,” she told NewsChina.  

However, Guo Tianlu, chief judge of a district court in Xi’an, capital of Shaanxi Province, told NewsChina he is worried that the mounting number of divorce cases will increase the waiting time for those involved in domestic violence, which has negative consequences for victims.  

Violence is not the only problem that can arise during the cooling-off period, according to Yi Yi, especially when one of the parties later reneges on the decision to divorce. Du and Zhang said the cooling-off period may allow one party to try to undercut the other, such as changing an already-signed agreement to divide joint assets.  

In its document, the Anyue court said that some people used the period to transfer joint assets or maliciously run up debts that both are liable for.  

“I feel lucky I got divorced before the cooling-off period,” Wang Xixing (pseudonym), told NewsChina. Wang, who lives in Beijing, divorced her husband in 2020 after she discovered he was having an affair. Although her husband, a senior manager in a finance company, asked for forgiveness and did not want to divorce, she prevailed. 
“I need my relationships to be on the level. I couldn’t bear to be with him for a minute longer after I found out about his affair. If the cooling-off period had taken effect before my divorce, my husband, I think, would have kept pestering me during this period and even tried to transfer assets which would have driven me crazy,” she said.  
Wang was pleased the Shandong court’s article revealed some truths. “The article just exposed the truth to the public – as a matter of fact, my lawyer said that cheating is not a really solid reason for divorce, even if you have enough evidence to prove it. If my ex and I had to go through the courts, it would have taken much longer for the court to investigate the affair and our assets, and I might still have lost my petition if my husband expressed remorse for the affair and told the court that he didn’t want a divorce,” she said.  

Chinese custom places high value on family stability and a relationship’s longevity, so courts commonly refuse the initial divorce petition, which lawyer Zhang Fengchun said constitutes a hidden “cooling-off period.”  

Judges often refuse a divorce petition on the first hearing if they feel the relationship is not irrevocably broken. In this case, a couple has to wait six months before filing again for the same reason, according to the law. This is much more common than people think, and disproportionately affects women, who file 70 percent of divorces in China, news website Sixth Tone reported in November 2021. This means renegotiations of around three months, which may put pressure on the petitioner to withdraw, or cause the agreement to be redrawn in favor of the dominant partner, usually the man, the report said.  

A 2019 report by Beijing Yinke Law Firm Xi'an Branch that analyzed local divorce data found that courts in North China’s Shaanxi Province publicized 417 divorce verdicts in 2019, only 12 percent of which were approved on the first filing, and these were because either the defendant agrees with the divorce or the defendant failed to appear.  

At a work conference on cases related to family affairs held in April 2016, Zhou Qiang, president of China’s Supreme People’s Court, asked lower courts to work hard to resolve family conflicts and help safeguard the harmony in families and stability in society.  

This was a new demand for courts, even though Chinese divorce cases are always dealt with on the principle of resolving family conflicts and safeguarding the family relationship. Judges do not easily approve a divorce, unless there is special reason, such as domestic violence or other situations clearly listed in the Civil Law.  

This is why requiring the 30-day coolingoff period in the Civil Law has been so controversial.  

“We aim to prevent impulsive divorce... We hope the cooling-off period will leave more time for couples to rethink the problems in their marriages,” Sun Xianzhong, a delegate to the National People’s Congress (NPC) and a legal expert at the Chinese Academy of Social Sciences who participated in the drafting of the new Civil Law, told media on May 23, 2020 when the draft was submitted to the NPC for approval. 

Intended Effect 
According to lawyer Gao Lei, the coolingoff period has had the intended effect, at least initially.  

The latest data from the Ministry of Civil Affairs showed that in the first quarter of 2021, 296,000 couples registered for divorce, 72.2 percent down from the fourth quarter of 2020.  

The Qilu Evening News in Shandong Province reported that between January and November 2021, 17,271 couples registered for divorce with civil affairs organs in Jinan, capital of Shandong Province, 8,037 less than in the same period of 2020. Shangyou News under the Chongqing Daily reported that 72,363 couples in Chongqing registered for divorce with civil affairs organs in 2021, 44 percent down on 2020.  

“It is the positive influence of the coolingoff period which works as a buffer to people seeking a quick divorce – people think more rationally about their children and how to split their assets in this period,” Gao told NewsChina.  

“Many people do calm down during the cooling-off period... Some couples were actually not so fixed on divorcing so the coolingoff period made them retreat due to the difficulties of getting divorced,” lawyer Du Qin told NewsChina. “On this aspect, I think the cooling-off period is of some significance,” she added.  

Yet, during the 2020 two sessions, China’s top legislative meetings, writer Jiang Shengnan who is also an NPC delegate told media that impulsive divorce accounts for less than 5 percent of the total and she does not think it is reasonable to restrict a majority of couples just for this minority.  

Some netizens have questioned if the decline in divorce in 2021 was due to the divorce boom before the cooling-off period took effect – local media in Changsha, Hunan Province revealed that many districtlevel civil affairs organs were crowded with couples registering for divorce in the last days of 2020, about three times as many as usual. An employee working with the civil affairs bureau of Daxing District, Beijing, told social media Zhaojiuwanliu in January 2021 that he found the number of couples registering for divorce increased significantly in December 2020.  

A woman who applied for divorce told Zhaojiuwanliu on condition of anonymity that she carefully considered her decision and that getting divorced before the cooling-off period took effect helped her and her ex be free of each other as soon as possible.  

Others argued the decline in divorces in 2021 may also be due to the decrease in marriages. According to the 2021 report on marriage and divorce by the Ministry of Civil Affairs, China’s marriage rate declined steadily from 2003 and “being afraid of dealing with family conflicts” was listed as one of the four leading reasons that caused the decrease.  

Long before the cooling-off period was written into the Civil Law, judge Guo Tianlu’s court tried setting different required pre-litigation periods for different situations to avoid lengthy court cases.  

Guo seldom gave a buffer period in cases related to domestic violence to protect the victim. The period would be shortened or even canceled if he found a couple’s relationship had broken down and one of the parties was very firm in getting divorced. But if he found a couple was being too impulsive or there was still space for them to communicate, he would order a period of two weeks or a month so they were sure of their decision. Meanwhile, he kept a close eye on whether any party tried to wrong the other, such as transferring joint property.  

In Guo’s opinion, the cooling-off period should not be a “one-size-fits-all” policy, but tailored for different situations.  

Yi Yi told NewsChina that she thinks the cooling-off period should be accompanied by detailed standards to define certain norms the law should abide by, such as what “cooling down,” “living apart” and “broken relationship” mean, as well as implementing measures related to children and assets. But so far, no such national standards or judicial explanation have been issued.  

“I think this is something which should be worked on and improved as soon as possible,” she said.