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.