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China's new Civil Code – Part 5: Family Law

published on 24 August 2020 | reading time: approx. 4 minutes

The new Civil Code (CC) of China, which will enter into force on January 1, 2021, consists of 7 parts. With this series of articles we inform about the essential legal provisions and new regulations in the new Civil Code. This article is focused on some aspects of the fifth part of the Civil Code – Family Law.

Background and Structure »
General provisions »
Marriage and community of accrued gain »
Family relations »
Divorce, Custody and alimony »
Adoption »
Legal Implications »

Background and structure

Essential parts of the Family Law were previously regulated in the Marriage Law and the Adoption Law. The provisions of these laws have been largely incorporated into the new Civil Code and summarized in Part 5, with additional provisions being added. The Marriage Law and the Adoption Law will cease to have effect when the Civil Code enters into force.

Part 5 is structured in five chapters, namely general provisions, marriage, family relationships, divorce and adoption.

General provisions

The general provisions place marriage and family under the protection of the law and the State. In addition, some principles and prohibitions are listed, such as freedom of choice of spouse, equality between men and women and the protection of women, minors, elderly and disabled persons as fundamental principles, as well as, for example, the prohibition of bigamy and polygamy, domestic violence or the buying or selling of minors under the guise of adoption.

Marriage and community of accrued gain

According to the Civil Code, in China only men and women can get married. Same-sex partnerships are not possible. Men can enter into marriage from the age of 22, whereas women can enter into marriage from the age of 20. Both partners enjoy equal status in marriage and family and have the right to retain their respective names.

The Civil Code provides in principle a community of accrued gain for the property acquired during the marriage, i.e. the property acquired during the marriage is the joint property of the spouses and is jointly owned by the spouses. This includes, for example, wages and salaries, profits from investments or an own business, goods from inheritances or gifts.

However, there are exceptions to this principle. The following goods remain the sole property of the respective spouse:

Goods that belonged to one of the spouses before the marriage;
Compensations or damages received by a spouse for personal injury;
Goods which belong to only one spouse on the basis of a corresponding provision in a will or a contract of donation;
Goods for the daily needs of a spouse.

Family relations

Both spouses are treated equally by law, i.e. both partners have the right to pursue a profession or participate in social activities. Both spouses are equally entitled and obliged to take care of the children (custody) and to support each other.

If parents do not or not sufficiently perform their duties with regard to the care and upbringing of their children, the child may demand reasonable maintenance costs from the parents. Children are obliged to support their parents, regardless of whether they are still married, divorced or married to a new partner.

In principle, children born in wedlock or born out of wedlock enjoy the same rights.

If a child's parents are deceased or otherwise prevented from taking care of the child, parental responsibility may also pass to the child's grandparents.

Adult children are generally obliged to support their parents if they can no longer work or otherwise provide for their livelihood.

Divorce, custody, alimony

The Civil Code provides for two ways of divorce, either the simple official registration of the divorce upon joint application or divorce proceedings in court.

A divorce can be solely registered with the authorities if both spouses agree to the divorce, sign a corresponding divorce agreement and if both voluntarily file a corresponding divorce application. For this divorce procedure, a period of 30 days from the filing of the application applies, within which one of the spouses can withdraw the divorce application - even unilaterally.

In judicial divorce proceedings, the court shall initially act as a mediator in order to prevent a divorce and to reach a settlement of the conflict. If this is unsuccessful and the court considers the marriage to be irretrievably broken, the court orders the divorce.

A husband may not, in principle, apply for divorce from his wife if she is pregnant or within one year of the birth of the child or within six months of the end of the pregnancy. The only exceptions are if the wife herself applies for divorce or if the court considers it necessary to grant the husband's divorce application.

If the divorced spouses have a child under 2 years of age, the mother generally receives custody. In the case of a child between 2 and 8 years of age, if the parents cannot reach an agreement, the court can decide which parent will be given custody. If the child is older than 8 years, his or her wishes must be taken into account accordingly in the decision.

There are also provisions concerning the payment of alimony and the right of contact of the parent who does not have custody of the child.

Under certain circumstances, e.g. domestic violence or when the other partner lives together with a third person, the affected partner can also claim damages.

Adoption

The Civil Code contains extensive regulations concerning the adoption of children. These range from the conditions for releasing a child for adoption, the basic requirements to be met by possible adoptive parents, the legal validity of an adoption to the (generally very difficult) termination of an adoption.

Foreigners are entitled to adopt a child in China. However, there are considerable additional regulations to be observed. In addition, the foreigner must submit a large number of documents concerning him/her from his/her home country.

Legal implications

Foreigners are generally entitled to marry a Chinese person. For a marriage in China, the foreigner must present various documents such as a certificate of no impediment to marriage, which must usually be issued within six months before the planned marriage date. Marriages concluded abroad between a foreigner and a Chinese citizen are generally recognized in China. Certain formalities have to be observed, e.g. translation, authentication and legalization of the marriage certificate as well as with regard to the registration of the marriage.

Chinese family law differs considerably in many respects from German family law or the family law of other Western countries. This should be considered by those who wish to marry before entering into a bi-national marriage.

Transactions which one spouse carries out for everyday needs of the couple or family also bind the other spouse, unless otherwise agreed in advance. The same applies to loans or other liabilities entered into for the daily needs of the family. However, this does not apply to loans or other liabilities that go beyond this purpose. In such a case, the other spouse is not jointly liable. However, this can be difficult to evaluate in individual cases.

The Civil Code provides for the possibility of a marriage contract, which may in particular provide for agreements deviating from the community of accrued gain.

In an administrative divorce proceeding, the 30-day period within which a joint divorce application can be withdrawn unilaterally by one partner can be problematic because of precisely this unilateral withdrawal possibility. If there are doubts about the serious collaboration of a partner in the administrative divorce proceedings, judicial divorce proceedings should be initiated immediately.

In the next article of this series we will focus on some aspects of the Law of Succession- Part 6 of the Civil Code.