Marriage Law of the People's Republic of China

Marriage Law of the People's Republic of China

Adopted at the Third Session of the Fifth National People's Congress on September 10,1980,and amended in accordance with"Decision Regarding the Amendment(of Marriage Law of the People's Republic of China)"passed at 21st Session of the Standing Committee of the Ninth National People's Congress on April 28,2001

Contents

Chapter IGeneral Provisions

Chapter IIMarriage Contract

Chapter IIIFamily Relations

Chapter IVDivorce

Chapter vSuccour Measures and Legal Liability

Chapter VISupplementary Provisions

Chapter IGeneral Provisions

This Law is the Fundamental code governing marriage and family relations.

A marriage system based on the free choice of partners, on monogamy and on equality between man and woman shall be applied.

The lawful rights and interests of women, children and old people shall be protected.

Family planning shall be practised.

Article 3Marriage upon arbitrary decision by any third party, mercenary marriage and any other acts of interference in the freedom of marriage shall be prohibited. The exaction of money or gifts in connection with marriage shall be prohibited.

Bigamy shall be prohibited. Cohabitation of a married person with any third party shall be prohibited. Domestic violence shall be prohibited. Within the family maltreatment and desertion of one family member by another shall be prohibited.

Article 4Husband and wife shall be faithful to and respect each other. Within the family family members shall respect the old and cherish the young, help one another, and maintain equal, harmonious and civilized marriage and family relations.

Chapter II Marriage Contract

Article 5Marriage must by based upon the complete willingness of both man and woman. Neither party may use compulsion on the other party and no third party may interfere.Article 6No marriage may be contracted before the man has reached 22 years of age and the woman 20 years of age. Late marriage and late childbirth shall be encouraged.Article 7No marriage may be contracted under any of the following circumstances:

(1)if the man and the woman are lineal relatives by blood, or collateral relatives by blood up to the third degree of kinship; and

(2)if the man or the woman is suffering from any disease, which is regarded by medical science as rendering a person unfit for marriage.

Article 8Both the man and the woman desiring to contract a marriage shall register in person with the marriage registration office. If the proposed marriage is found to conform with the provisions of this Law, the couple shall be allowed to register and issued marriage certificates. The husband and wife relationship shall be established as soon as they acquire the marriage certificates. In the absence of the marriage registration, the man and the woman shall go through the procedures subsequently.Article 9After a marriage has been registered, the woman may become a member of the man's family or vice versa, depending on the agreed wishes of the two parties.Article 10Marriage shall be invalid under any of the following circumstances:

(1)if one party commits bigamy;

(2)if the man and the woman are relatives by blood up to the third degree of kinship;

(3)if, before marriage, one party is suffering from a disease which is regarded by medical science as rendering a person unfit for marriage and, after marriage, a cure is not effected; and

(4)if the legally marriageable age is not attained.

Article 11In the case of a marriage made under coercion, the coerced party may make a request to the marriage registration office or the people's court for the dissolution of the marriage contract. Such a request shall be made within one year as of the marriage registration date. The party concerned whose personal freedom is curbed illegitimately shall make a request for dissolution of the marriage contract within one year as of the date on which his or her personal freedom is restored.Article 12Void or dissolved marriage shall be invalid from its inception. Neither party concerned shall have the rights and duties of husband or wife. The property acquired during their cohabitation shall be subject to disposition by mutual agreement. If they fail to reach an agreement, the people's court shall give a ruling on the principle of caring for the no-fault party. The disposition of the property of void marriage caused by bigamy may not be to the detriment of the property rights and interests of the party concerned to the lawful marriage. The provisions of this Law regarding parents and children shall apply to the children born from the parties concerned.

Chapter III Family Relations

Article 13Husband and wife shall have equal status in the family.Article 14Both husband and wife shall have the right to use his or her own surname and given name.Article 15Both husband and wife shall have the freedom to engage in production and other work, to study and to participate in social activities; neither party may restrict or interfere with the other party.Article 16Both husband and wife shall have the duty to practise family planning.

The following items of property acquired by husband and wife during the period in which they are under contract of marriage shall be jointly possessed:

(1)pay and bonus;

(2)earnings from production and operation;

(3)earnings from intellectual property rights;

(4)property obtained from inheritance of gift except as provided for in Article 18(3) of this Law; and

(5)Any other items of property which shall be in his or her separate possession.

Article 19So far as the property acquired during the period in which they are under contract of marriage and the prenuptial property are concerned, husband and wife may agree as to whether they should be in the separate possession, joint possession or partly separate possession and partly joint possession. The agreement shall be made in writing. The provisions of Articles 17 and 18 of this Law shall apply to the absence of such an agreement or to a vague one.

The agreement reached between the husband and wife on the property acquired during the period in which they are under contract of marriage and on the prenuptial property is binding on both parties.

If husband and wife agree, as is known to the third party, to separately possess their property acquired during their marriage life, the debt owed by the husband or the wife to any other person, shall be paid off out of the property separately possessed by him or her.

Article 20Husband and wife shall have the duty to maintain each other.

If one party fails to perform this duty, the party in need of maintenance shall have the right to demand maintenance payments from the other party.

Article 21Parents shall have the duty to bring up and educate their children; children shall have the duty to support and assist their parents.

If parents fail to perform their duty, children who are minors or who are incapable of living on their own shall have the right to demand the cost of upbringing from their parents.

If children fail to perform their duty, parents who are unable to work or have difficulties in providing for themselves shall have the right to demand support payments from their children.

Infant drowning, deserting and any other acts causing serious harm to infants and infanticide shall be prohibited.

Article 22Children may adopt their father's or their mother's surname.Article 23Parents shall have the right and duty to subject their children who are minors to discipline and to protect them. If children who are minors cause damage to the state, the collective, or individuals, their parents shall have the duty to bear civil liability.Article 24Husband and wife shall have the right to inherit each other's property.

Parents and children shall have right to inherit each other's property.

Article 25Children born out of wedlock shall enjoy the same rights as children born in wedlock. No one may harm or discriminate against them.

The natural father or the natural mother who does not rear directly his or her child born out of wedlock shall bear the child's living and educational expenses until the child can support himself or herself.

Article 26The state shall protect lawful adoption. The relevant provisions of this Law governing the relationship between parents and children shall apply to the rights and duties in the relationship between foster parents and foster children.

The right and duties in the relationship between a foster child and his or her natural parents shall terminate with the establishment of this adoption.

Article 27Maltreatment or discrimination shall not be permitted between stepparents and stepchildren.

The relevant provisions in this Law governing the relationship between parents and children shall apply to the rights and duties in the relationship between stepfathers or stepmothers and their stepchildren who receive care and education from them.

Article 28Grandparents or maternal grandparents who can afford it shall have the duty to bring up their grandchildren or maternal grandchildren who are minors and whose parents are dead or have no capacity of bringing them up. Grandchildren or maternal grandchildren who can afford it shall have the duty to support their grandparents or maternal grandparents whose children are dead or cannot afford it.Article 29Elder brothers or elder sisters who can afford it shall have the duty to bring up their younger brothers or sisters who are minors if their parents are dead or have no means to bring them up. Younger brothers or sisters who have been brought up by their elder brothers or elder sisters and have the means of maintenance shall have the duty to support them who are lacking in the capacity to work and in the source of income.Article 30Children shall have respect for their parents' matrimonial rights and shall not interfere in their parents' remarriage and postnuptial life. Children's duty to maintain their parents shall not terminate with the change in their parents' matrimonial relationship.

Chapter IV Divorce

Article 31Divorce shall be granted if husband and wife both desire it. Both parties shall apply to the marriage registration office for divorce. The marriage registration office, after clearly establishing that divorce is desired by both parties and that appropriate arrangements have been made for the care of any children and the disposition of property, shall issue the divorce certificates.

When one party alone desires a divorce, the organizations concerned may carry out mediation, or the party may appeal directly to a people's court to start divorce proceedings.

In dealing with a divorce case, the people's court should carry out mediation between the parties. Divorce shall be granted if mediation fails because mutual affection no long exists.

Divorce shall be granted if mediation fails under any of the following circumstances:

(1)bigamy or, cohabitation of a married person with any third party;

(2)domestic violence or, maltreatment and desertion of one family member by another;

(3)bad habits of gamble or drug addiction which remain incorrigible despite repeated admonition;

(4)separation caused by incompatibility, which lasts two full years; and

(5)any other circumstances causing alienation of mutual affection.

Divorce shall be granted if one party is declared to be missing and the other party thereby files an action for divorce.

Article 33If the spouse of a soldier in active military service desires a divorce, the soldier's consent must b e obtained, except that the soldier commits a serious fault.Article 34A husband may not apply for a divorce when his wife is pregnant or within one year after the birth of a child or within six months after pregnancy suspension. This restriction shall not apply in cases where the wife applies for a divorce, or when the people's court deems it necessary to accept the divorce application made by the husband.Article 35If, after divorce, both parties desire to resume their husband-and-wife relationship, they shall register for the remarrying of each other with the marriage registration office.Article 36The relationship between parents and children shall not come to and end with the parents' divorce. After divorce, whether the children are put in the custody of the father or the mother, they shall remain the children of both parents.

After divorce, both parents shall still have the right and duty to bring up and educate their children.

In principle the mother shall have the custody of a breast-fed infant after divorce. If a dispute arises between the two parties over the custody of their child who has been weaned and they fail to reach an agreement, the people's court shall make a judgment in accordance with the rights and interests of the child and the actual conditions of both parents.

Article 37If, after divorce, one party has been given custody of a child, the other parent shall bear part or the whole of the child's necessary living and educational expenses. The two parties shall agreement regarding the amount and duration of such payment. If they fail to reach an agreement, the people's court shall make a judgment.

The agreement or the court judgment on a child's living and educational expenses shall not prevent the child from making a reasonable request, when necessary, to either parent for an amount exceeding what was decided upon in the said agreement or judgment.

Article 38After divorce, the father or the mother who does not rear their children directly shall have the right to visit them, while the other party shall have the duty to give assistance.

The parents shall reach an agreement about how and when to exercise the right of visit. If they fail to reach an agreement, the people's court shall make a judgement.

If the father or the mother visits their children to the detriment of their mental and physical health, a people's court shall suspend the right of visit according to law; and such a right shall be restored after the main content of the suspension disappears.

Article 39At the time of divorce, the disposition of the property in the joint possession of husband and wife is subject to agreement between the two parties. In cases where an agreement cannot be reached, the people's court shall make a judgement in consideration of the actual circumstance of the property and on the principle of caring for the rights and interests of the wife and the child or children.

The rights and interests enjoyed by husband or wife in the operation of land under a contract based on the household shall be protected according to law.

Article 40According to a couple's written agreement, the items of property acquired during their marriage are in the separate possession. In this connection, if one party performs more duties in rearing their children, looking after their elders and assisting the other party in work, he or she shall have the right at the time of divorce to request compensation from the other party who shall make the compensation.Article 41At the time of divorce, debts incurred by the husband and wife during their marriage shall be paid off out of their jointly possessed property. If such property is insufficient to pay off the debts or, the items of the property are in the separate possession, the two parties shall work out an agreement with regard to the payment. If they fail to reach an agreement, the people's court shall make a judgment.Article 42If, at the time of divorce, one party has difficulties supporting himself or herself, the other party shall render appropriate help from her or his personal property such as a dwelling house. Specific arrangements shall be made between both parties through consultation. If they fail to reach an agreement, the people's court shall make a judgement.

Chapter V Succour Measures and Legal Liability

Article 43In regard to the domestic violence to or maltreatment of family member(s), the victim shall have the right to make a request, and the neighborhood or villager committee as well as the units in which the parties concerned work shall dissuade the wrongdoer, and offer mediation.

In regard to the domestic violence being committed, the victim shall have the right to make a request, the neighborhood or villager committee shall dissuade the wrongdoer, and the public security organ shall stop the violence.

If, in regard to the domestic violence to or maltreatment of family member(s), the victim makes a request, the public security organ shall subject the wrongdoer to administrative penalty in accordance with the relevant provisions of administrative sanctions for public order.

Article 44In regard to the desertion of one family member by another, the victim shall have the right to make a request, and the neighborhood or villager committee as well as the units in which the parties concerned work shall dissuade the wrongdoer and offer mediation.

If, in regard to the desertion of one family member by another, the victim makes a request, the people's court shall pass a judgment on the effecting of maintenance, upbringing and support payments according to law.

Article 45If bigamy, domestic violence to or maltreatment and desertion of family member(s) constitute a crime, the criminal responsibility of the wrongdoer shall be investigated according to law. The victim may institute a voluntary prosecution in a people's court in accordance with the relevant provisions of the criminal procedure law. The public security organ shall investigate the case according to law and the people's procuratorate shall initiate a public prosecution according to law.Article 46A no-fault party shall have the right to make a request for damage compensation under any of the following circumstances bringing about divorce:

(2)cohabitation of a married person with any third party;

(3)domestic violence; and

(4)maltreatment and desertion of one family member by another.

Article 47When the couple's joint property is divided, the party may get smaller or no share of the property if he or she conceals, transfers, sells off, destroys the couple's joint property, or forges debts in an attempt to convert the other party's property at the time of divorce. After divorce, the other party, on finding the above-mentioned acts, may file an action in a people's court, and make a request for another division of the couple's joint property.

Regarding the acts to the prejudice of the civil litigation that are specified in the preceding paragraph, the people's court shall subject the wrongdoer to the punishment according to the provisions of the civil procedure law.

Article 48In cases where the person refuses to abide by judgements or rulings on maintenance, upbringing or support payments, or on the division or inheritance of property, or on visits to children, the people's court shall enforce the execution of the judgements or rulings according to law. The individuals and units concerned shall have the duty to assist such executions.Article 49Where laws provide otherwise against illegal acts and for legal liability in regard to marriage and family, the provisions in such laws shall apply.

Chapter VI Supplimentary Provisions

Article 50The people's congresses in national autonomous areas shall have the right to formulate certain adaptations in the light of the specific conditions of the local nationalities in regard to marriage and family. Provisions of adaptations formulated by autonomous prefectures and autonomous counties must be submitted to the standing committee of the people's congress of the relevant province or autonomous region or municipality directly under the Central Government for approval. Provisions of adaptations formulated by autonomous regions must be submitted to the Standing Committee of the National People's Congress for the record.

This Law shall come into force as of January 1, 1981.

The Marriage Law of the People's Republic of China promulgated on May 1, 1950 shall be invalidated as of the day this Law comes into force.