Family Law and Resolution of Domestic Disputes
in the People’s Republic of China
K. C. Woodsworth *
Some General Principles of Family Law: It may be useful to
attempt to summarize certain general principles which seem to guide
domestic relations in the People’s Republic of China, so far as legal
matters are concerned. Firstly, modern Chinese family relations are
based on the nuclear family: husband, wife and their children, with
sometimes grandparents, or another relative in the home. “The basic
social unit in modern China is the family,” said Wu De-Feng, President
of the Political Science and Law Association and Chairman of the Bills
Committee of the National People’s Congress. Secondly, marriage is
based on the free choice of the man and the woman. Within the
marriage there is legal equality between husband and wife. There is
mutual responsibility for chlidren of the marriage. There is joint
conjugal ownership of property and the mutual right to inheritance
of each other’s property. The wife has full rights of professional or
technical training and employment. Each party to the marriage has a
right to divorce. Thirdly, the stability of the marriage and of family
life is considered to be of grave importance to the requirements of
construction of socialist society in China.
The Marriage Law : The People’s Republic of China was estab-
lished in 1949. The Marriage Law was promulgated by the Central
* Of the Ontario Bar. The following observations are a result of two visits by
the author and his wife, a graduate social worker, to the People’s Republic of
China during the summers of 1960 and 1965. The observations from the first trip
result from a ten day stay during which the author visited Canton and Peking;
from the second trip from a three week stay during which the author was able
to study various aspects of Chinese domestic relations in Shanghai, Nanking,
Peking, Canton, as well as other smaller cities and agricultural communes.
Neither the author nor his wife has knowledge of the Chinese language and
could not, therefore, do any independent reading from Chinese sources. Their
observations, therefore, are a product of conversations through the intermediary
of an interpreter with officers of the Political Science and Law Association (upon
whose invitation the author and his wife made both trips) in several cities,
with factory and agricultural commune officials, leaders of women’s groups etc.
The author also personally observed the proceedings of a Neighbourhood Con-
ciliation Committee and an appeal in a divorce action in the Middle People’s
Court of Peking. He also draws certain conclusions from the Marriage Law of
the People’s Republic, extracts of which are reproduced in the note. The author
feels that the information received by him accurately reflects the situations
throughout the country.
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People’s Government on May 1, 1950, after some 17 months of
extensive public discussion throughout the country.
Article 1 : The feudal marriage system -which is based on arbitrary and com-
pulsory arrangements and the superiority of man over woman and ignores
the children’s interests shall be abolished.
The New-Democratic marriage system, which is based on the free choice of
partners, on monogamy, on equal rights for both sexes and on the protection
of the lawful interests of women and children, shall be put into effect.
The old Chinese family unit, based on Confucian ethics, was a
clan which included persons of many degrees of relationship, usually
headed by a male patriarch. Marriages were arranged by the elders,
without any need for consultation or consent of the prospective
husband and wife. (Many marriages were made after child betro-
thals.) Deeply inbedded was the Confucian idea that the man was
superior to the woman. The wife became a mere chattel in her new
home. Mr. Lo Chia-Ting, Vice-President of the Shanghai Higher
People’s Court, described a woman’s place under the old marriage
system by saying that she suffered from the “Three Rights”: “The
Rights of Gods”: i.e. superstition; “The Right of Husband”, who had
almost complete legal and social power over her; and “The Right of
Family”: that is, the whole clan, with its chain of authority from
the patriarch down. In one of the introductions to the Marriage Law,
Teng Ying-chao writes as follows “(women) were not only denied
political and economic rights and held in servitude but were also
stripped of the right even to manage daily domestic affairs. At home
their husbands could and did beat them and curse them, and their
parents-in-law were free to insult them with impunity. The sufferings
endured by luckless daughters-in-law were proverbial. Such miseries
resulted in unhappy family life filled with sorrow and hatred. And
this in turn had its direct adverse effects on the physical and mental
health of the younger generation.”
The extent of the change which has occurred in family relations
must be left for more extensive and careful review by students of Chi-
nese social history. But it is obvious that the change is fundamental.
Arranged marriages seem to have disappeared almost completely, even
in the countryside. Parental interference in the free choice of partners
is minimal, according to our information. It goes without saying that
concubinage no longer exists. It is, of course, difficult to assess the
extent to which the legal freedom accorded to women in the 16 years
since “Liberation” has become a social actuality. But it was apparent
to us at many points that there is in fact a very large measure of
social equality. This is, of course, reinforced by the unofficial organs
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of community authority, such as Neighborhood Committees, trade
unions, etc., as well as in the Courts.
Article 4 : A marriage can be contracted only after the man has reached
20 years of age and the woman 18 years of age.
There was a good deal of variation of opinion among our in-
formants as to the average age of marriage in China today. It was
generally agreed that the ideal age should be considerably older
than the Marriage Law allows, The most common views were that
the desirable ages should be about 28-30 for men and 26-28 for
women. The reasons given for this were chiefly that both men and
women needed the time in their younger years for education or voca-
tional training, for their full personal development and to prepare
themselves for their best service to their society. Apparently this
view is held most strongly by women. It was stated that under the old
system women never had opportunity to develop their own interests
and abilities. Now, with equality of rights of both sexes, women espe-
cially want full freedom to develop their own personalities as fully as
possible, before they are more limited in marriage to some of the duties
of housekeeping and child bearing and raising. This subject of the pro-
per age of marriage has been discussed widely throughout the People’s
Republic of China by the young people themselves, in discussion
groups and through various youth publications and the young people
favor later marriages. My own guess is that the actual ages of
marriage are considerably lower than the “ideal” suggested: probably
varying between different parts of the country and between profes-
sionally-trained or college-educated young people and workers in
factories or agricultural communes.
Artiele 5 : The prohibitions against marriage are
a) Blood relationship… Collateral relationship by blood up to the fifth
degree is to be determined by custom.
A good deal of cultural autonomy is granted to minority peoples in
different regions of China. Presumably the wording of this clause
is to protect such minority group custom.
b) Impotence due to physical causes.
c) Where one party is suffering from venereal disease, mental disorder,
leprosy or any other disease -which is regarded by medical science as rendering
a person unfit for marriage.
Article 6 establishes the necessary formalities of marriage: that
is, registration in person by the parties in the district in which they
reside.
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Articles 7 to 12 are included in a Chapter entitled “Rights and
duties of Husband and Wife.”
Article 8 : Husband and wife are in duty bound to love, respect, assist and
look after each other, to live in harmony, to engage in productive work, to
care for the children and to strive jointly for the welfare of the family and
for the building of the new society.
Judging from comments made to us and from the remarks
addressed to the husband and wife by the judges at the hearing of a
divorce case in Peking, these are not mere pious observations, but the
social and legal requirements demanded of husbands and wives in
the new China. Indeed, each one of the elements of the above article
received particular comment from the judges.
Article 9 frees the wife from any authority of her husband over
her choice of occupation.
Article 10 : Both husband and wife shall have equal rights in the possession
and management of family property.
It would appear that the term “property” means personal chattels,
money in the bank and similar personalty, since ownership of land,
farm animals and crops, buildings, factories, etc. are mainly vested
in communal groups or in the state. However, in the agricultural
communes, members build and own their own homes and are allowed
to cultivate small pieces of land for production of crops for personal
use, or to keep ducks, chickens, pigs, etc.; and these crops or animals
are personal property and may be sold and the profit kept by the
owner. There is no marriage contract affecting property known to
Chinese law.
It also appears to be customary, at least in the parts of China we
visited, for the wife to manage the household. She often is handed all
her husband’s earnings to be spent for all household needs, including
personal expenses of the various members of the household.
Article 11 : Both husband and wife shall have the right to use his or her
own family name.
In the new China, the wife commonly continues to use her own
surname after marriage. Children take their father’s surname.
Article 12 : Both husband and wife shall have the right to inherit each other’s
propertey.
And, by Article 14, children share the right of inheritance with
their parents.
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Article 13 defines the duties of parents and children to support
and to assist each other.
Article 15: Children born out of wedlock shall enjoy the same rights as
children born in lawful wedlock.
The father is liable for maintenance until the child is 18. With
the consent of the mother, the father may claim custody. According
to all the persons with whom we discussed the matter, pre-marital
sexual relations are severely disapproved and are uncommon. Birth
out of wedlock is therefore a rare occurrence. It may also be added
that there is public education in the use of contraceptives, and
abortion and sterilization are legal, if both husband and wife consent,
although the latter are not frequently resorted to.
Article 17: Divorce shall be granted when husband and wife both desire it.
In the event of either the husband or the wife alone insisting upon divorce,
it may be granted only when mediation by the district people’s government
and the judicial organ has failed to bring about a reconciliation.
It will be noted from this article that divorce is “of right” when
both parties desire it. However, there is an elaborate system of
conciliation in domestic disputes which would probably be brought
into play even where both partners seek a divorce, since divorce
is considered a serious breach of social relationships. In cases where
only one party desires the divorce, the machinery of conciliation is
a mandatory part of the legal proceedings. More will be said about
conciliation procedures below. There appear to be no legal limits to
the grounds for divorce. At the same time, divorce will not be granted
as of right for any particular cause: for example, adultery is not,
in itself, a ground for divorce.
Article 18 : The husband shall not apply for a divorce when his wife is with
child. He may apply for divorce only one year after the birth of the child.
In the case of a woman applying for divorce, this restriction does not apply.
Articles 20 : The blood ties between parents and children do not end with the
divorce of the parents. No matter whether the father or the mother acts as
guardian of the children, they still remain the children of both parties.
After divorce, both parents still have the duty to support and educate
their children.
After divorce, the guiding principle is to allow the mother to
have custody of a baby still being breast-fed. (Breast feeding
continues to a much later age in the child than would be the case
in Canada).
After the weaning of the child, if a dispute arises between the two parties
over the guardianship and an agreement cannot be reached, the people’s court
shall render a decision in accordance with the interests of the child.
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Article 21 : If, after divorce, the mother is given custody of a child, the father
shall be responsible for the whole or part of the necessary cost of the main-
tenance and education of the child …
Article 23 : In case of divorce, the wife shall retain such property as belonged
to her prior to her marriage. The disposal of other family properties shall be
subject to agreement between the two parties. In cases where agreement
cannot be reached, the people’s court shall render a decision after taking into
consideration the actual state of the family property, the interests of the
wife and child or children, and the principle of benefiting the development of
production.
Article 25 : After divorce, if one party has not re-married and has maintenance
difficulties, the other party shall render assistance. Both parties shall work
out an agreement with regard to the method and duration of such assistance;
in case an agreement cannot be reached, the people’s court shall render a
decision.
Community Conciliation Procedures: As has been said earlier,
the nuclear family is the basic social unit in the People’s Republic
of China and any disturbance of that basic unit is viewed as a
threat to the social stability of the community: hence the direct
intervention of the community. The intervention of the local com-
munity in domestic disputes is not a feature peculiar to the People’s
Republic. It was found prior to the establishment of the present
government and it is also found, for example, in Japan. However,
the present system in China is distinct and new.
The machinery for effecting this community intervention is the
Neighborhood Conciliation Committee. These Committees are to be
found in all communities. In large cities there may be several hundred
Conciliation Committees, depending on the requirements of the pop-
ulation. Generally, they are elected by the population group that
elects the Neighborhood Committee (another organ of social organ-
ization roughly comparable to the Executive of a ward electoral
association in some of our cities). (In Japan, by contrast, Conciliation
Committees are appointed by officers of the Court). In some com-
munities, the Conciliation Committee may be elected by the local
trade union, university staff, etc., if the community consists of
one occupational group. The number of members of a Conciliation
Committee varies from place to place, ranging from 3 to 10 persons,
and the term of office is usually for one or two years.
Although Conciliation Committees are recognized agencies of com-
munity government, they do not have judicial authority. There is
no formal relationship between the Conciliation Committees and the
regular courts, although a close liaison exists, as will be seen from
what follows. The influence of the Committee depends on the pres-
tige of its members, who are elected because of their good reputation
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and the general respect accorded to them by their neighbors. Usually,
therefore, they are senior members of the community.
The functions of Conciliation Committees are to hear and to try
to settle inter-family and intra-family disputes and to deal with
problems of juvenile misbehavior that cannot adequately be dealt
with by the parents. Cases may be brought to the attention of the
Committee by one of the interested parties, or by other members of
the local community. Proceedings are quite informal: the members
of the Committee hear the parties and the evidence of neighbors,
discuss the issues with the parties, and endeavor to advise and
suggest acceptable compromises. The Committee has no coercive
powers. According to Lo-Chia-ting, Vice-President of the Shangai
Higher People’s Court, the principles by which a Conciliation Com-
mittee should be guided in its work are: “Firstly, to distinguish
what is right from what is wrong; secondly, to seek harmony and
unity in the family; and thirdly, to seek to benefit production and
socialist construction.” Paraphrased this might read that the mem-
bers of the Committee are guided by their concepts of personal
ethics, good family relations and the needs of the body politic.
Courts Dealing with Family Law : There are no separate, spe-
cialized courts dealing with Family Law in the People’s Republic of
China. In the ordinary courts, no particular judges specialize
in
family law matters, so that family disputes are dealt with in the
ordinary courts, by the judges who try other types of civil cases.
The court of first instance for matters coming within the general
heading of Family Law are the District People’s Courts, the lowest
civil courts in the hierarchy of the court system. Cases are heard
before a judge and two People’s Assessors.’ Appeals from a District
People’s Court go to a Middle People’s Court. On appeal, the case
is heard before three judges. (In the divorce case that I attended
in Peking, one of the judges was a woman).
In family matters, both at trial of cases on first instance and
on appeal, the courts have three functions. The first is that of
investigation. At both levels, courts may make their own independent
investigation of the facts. The second function is that of conciliation.
All possible efforts are made towards conciliation before a binding
judgement is given in a domestic dispute. Accordingly, the judges
themselves, both in open court and with the parties separately,
attempt conciliation. Also the matter may be adjourned and sent
back to the Neighborhood Conciliation Committee for further con-
1See
(1961) IV CBJJ 299.
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ciliation efforts. This process takes place at the appeal level as well,
so that an appeal is, in effect, a new trial. The third function of
the Court after all efforts at conciliation prove fruitless is its ordi-
nary judicial one.
Some General Observations: In discussion with a number of
officials in various cities, the following were given as some of the
causes for cases brought before Conciliation Committees, or the
Courts, and about in the order of importance as listed:
(1) Antagonism between husband and wife arising out of con-
flicting ideas of their respective roles in the family; particularly
in situations where the husband has ideas of male dominance.
(2) Disputes arising out of differences between wife and mother-
in-law.
(3) Disputes over the management of the household.
(4) Disputes over upbringing of children.
(5) Differences in personal interests.
(6) Adultery or other marital misconduct.
With regard to the attitude of the courts generally, it may be
noted that although the grounds for divorce are not limited, great
importance is attached to maintaining the family as a unit. Ac-
cordingly, divorce is difficult to obtain and is rare. One informant
said that only about 10% of cases coming before the Courts result
in a decree of divorce.
There seems to be an appreciation and tolerance of the difficulties
of adjustment from the old to the new society. Some of these
problems of adjustment have to do with the abolition of feudal
attitudes towards marriage: the subservience of the wife to her
husband; the servient relation between the wife and her mother-
in-law; and the autocracies within the clan group. It may be some
time before these feudal attitudes are finally eradicated and the
principles of the new Marriage Law are fully realized. It may be pre-
sumed that the younger generation which is now coming into adult-
hood, educated in the conceptions of the new relationships, will be
largely free of the old ideas.
A related area of adjustment is the achievement of full personal
recognition for women. Given feudal relationships and ethics and
the economic insecurity of women, the predominant ideas of male
superiority condemned all women under the old system to permanent
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social inferiority. The new society asserts complete social and legal
equality for women and a large measure of equality has been
achieved. Here, too, the attitudes of the younger generation may be
expected to reflect the new mores.
Another area of adjustment lies in the pressures on individuals of
conflicting ideas in a society that is seeking radical changes. These
pressures arise in conflicting ideas about household management and
care and upbringing of children; in conflicting ideas about the conti-
nuing education of husband and wife in a society that encourages each
partner to develop his or her technical and intellectual skills to the
full; in conflicting ideas about work roles; in conflicting ideas on
general social and political issues.
In this struggle for personal and social adjustment in the new
society, the process of conciliation in the Neighborhood Conciliation
Committees and in the Courts is of paramount importance. Conciliation
is seen not only as a means of resolving the disputes between the
parties themselves. Conciliation procedures are considered one of the
means of public education to the new standards of personal morality
and the new social relationships and responsibilities of the People’s
Republic of China. In this setting, the conciliation procedures are a
much more significant mechanism of social adjustment than are the
regular Courts in their traditional judicial role.
