Chapter IV of the 1980 Marriage Law of the People's Republic of China contains two provisions for divorce. Article 24 provides for divorce by mutual consent:

Divorce is granted when husband and wife both desire it. Both parties should apply for divorce to the marriage registration office. The marriage registration office, after clearly establishing that divorce is desired by both parties and that appropriate measures have been taken for the care of the children and any property, should issue the divorce without delay.

Article 25 deals with contested divorce and states:

When one party insists on divorce, the organizations concerned may try to effect a reconciliation, or the party may appeal directly to the people's court for divorce.

In dealing with a divorce case, the people's court should try to bring about a reconciliation between the parties. In cases of complete alienation of mutual affection, and when mediation has failed, divorce should be granted.

There is an additional provision requiring that where one spouse is a member of the armed forces, the consent of that spouse must be obtained in granting a divorce (Article 26) and another provision preventing a husband from seeking a divorce when his wife is pregnant or within one year of the birth of child, although there are exceptions where it is the wife applying for divorce or when it is deemed by the court to be absolutely necessary (Article 27).

According to a report by HRIC "Mediation is required in all divorce cases in China" (Aug. 1995, 29). The report goes on to state that:

For no-fault divorces, mediation is conducted in the urban areas by neighbourhood committees or in the countryside by local women's federations and township-level courts, which must certify that the case has gone through mediation before a divorce decree can be granted. Neighbourhood committee members, usually retired women, generally have no training in conducting such mediation or in the laws and standards on marriage and divorce. A couple has to convince them that their relationship has "broken down".

In contested divorces, judicial mediation is required before a hearing in the case may be held. Unofficial targets are set for the number of cases judges are supposed to resolve in this fashion, and thus judicial officials are under pressure to have cases withdrawn.

The 1980 Marriage Law is supplemented by judicial decisions of the People's Supreme Court (Palmer Mar. 1995, 124). In 1997 it was reported that family law amendments were in the process of being developed (China Daily 26 Apr. 1997). However, according to a letter sent to the Research Directorate by the Counsel General of the Embassy of People's Republic of China, the 1980 Marriage Law remains the applicable law on divorce in China (8 Dec. 1998).

In a letter sent to the Research Directorate, a professor of Law at Queen's University, Kingston who has published on the subject of Chinese family law, stated that when the Article 24 procedure is followed the couple attends the local civil affairs office, turns in their marriage card and is issued with a divorce card (10 Dec. 1998). When the divorce is contested before a court, the court issues a judicial decision paper (ibid.). For samples of the papers used for proof of divorce please refer to the attached copies of documents provided by the Embassy of the People's Republic of China.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please see below the list of additional sources consulted.

References

China Daily. 26 April 1997. "China Experts Push for Amendments to Marriage Law." (NEXIS)

China Quarterly [London]. March 1995. Michael Palmer. "The Re-emergence of Family Law in Post-Mao China: Marriage, Divorce and Reproduction."

Human Rights in China (HRIC). August 1995. "Caught Between Tradition and the State. Violations of the Human Rights of Chinese Women."

The Marriage Law of the People's Republic of China. 1980. Beijing: Foreign Languages Press.

Counsel General, Embassy of the People's Republic of China. 8 December 1998. Letter sent to the Research Directorate.

Professor of Law at Queen's University, Kingston. 10 December 1998. E-mail sent to the Research Directorate.

Attachment

Copies of documents evidencing proof of divorce provided by the Embassy of the People's Republic of China.

Additional Sources Consulted

Two sources did not provide information on the topic requested.