Family Law in China
Family law in China is primarily governed by the Marriage Law of the People's Republic of China and the Civil Code of the People's Republic of China (2021), which include comprehensive provisions on marriage, divorce, child custody, inheritance, and other family-related matters. China's family law system has evolved significantly in recent years, placing greater emphasis on individual rights, gender equality, and the protection of children's interests.
1. Marriage and Cohabitation
Marriage:
The Marriage Law recognizes the legal marriage between a man and a woman. It requires the couple to register their marriage at the local marriage registration office.
Age Requirements: The legal minimum age for marriage is 22 for men and 20 for women.
Marriage is monogamous, and polygamy is prohibited.
Cohabitation:
Cohabiting relationships are not legally recognized as marriages in China. However, if a couple lives together for an extended period and has children, some legal rights may be granted, particularly in areas like child support and property division after separation.
2. Divorce
Grounds for Divorce:
Divorce is available either by mutual consent or through a court procedure.
No-fault divorce: Couples can apply for a divorce if both parties agree and submit a divorce petition to the local authorities.
Contested Divorce: If one party contests the divorce, the court will evaluate whether the marriage has truly broken down, and the couple may be required to live apart for six months before a final divorce ruling is made.
Grounds for contested divorce include domestic violence, infidelity, and abuse, but proving such grounds can be challenging.
Property Division:
The division of property after divorce typically follows the principle of fairness, taking into account the contribution of each spouse, the needs of any children, and other factors.
Property acquired during marriage is generally considered joint property, while assets owned prior to marriage remain the property of the individual.
3. Child Custody and Support
Custody:
Best interests of the child is the primary guiding principle in determining child custody.
In the event of a divorce, the court usually awards custody to the mother if the child is under the age of 2. For older children, custody may be granted to either parent depending on the circumstances, including the child’s preference, parental capabilities, and living conditions.
Joint custody is possible, though it is less common in China compared to some other countries.
Child Support:
Both parents are required to financially support their children, regardless of custody arrangements. The non-custodial parent is usually obligated to pay child support.
Child support obligations continue until the child reaches the age of 18, or longer if the child is still in full-time education.
4. Spousal Support
Alimony/Spousal Support:
Spousal support (alimony) is not automatically granted upon divorce but can be awarded in cases of financial need or if one spouse is determined to be at fault for the breakdown of the marriage (e.g., through infidelity or abuse).
Factors such as the duration of the marriage, each party’s financial situation, and contributions to the family are taken into consideration.
In practice, spousal support is often limited in China and is not as common as in many Western countries.
5. Domestic Violence
Domestic violence is a criminal offense under Chinese law. In 2016, China passed the Anti-Domestic Violence Law, which aims to provide better protection for victims of domestic violence, including spousal abuse and child abuse.
Victims can seek a protection order from the court, and the perpetrator may face criminal penalties.
There are also legal provisions for temporary shelter for victims of abuse, and law enforcement is encouraged to intervene in cases of domestic violence.
6. Inheritance and Succession
Inheritance Rights:
The Civil Code (2021) provides a framework for inheritance. If a person dies without a will (intestate), their estate is divided among the spouse, children, and parents in accordance with the law.
The law ensures that spouses and children are entitled to a significant share of the estate, and the inheritance is divided according to the principle of fairness.
Wills are legally recognized in China, and individuals can designate their beneficiaries and outline specific inheritance provisions. However, a spouse cannot be completely disinherited under Chinese law.
7. Adoption
Adoption is regulated by the Adoption Law of the People's Republic of China, which sets out the process for domestic and international adoption.
Domestic adoption is possible for married couples, single individuals, and those with the proper qualifications.
International adoption is allowed but involves stringent requirements, and prospective parents must meet both Chinese and the adopting country’s legal criteria.
China requires that the adoptive parents be at least 30 years old, and there are health and financial requirements to ensure the welfare of the child.
8. Paternity and Legitimacy
If a child is born outside of marriage, the father’s paternity may need to be legally established. Both parents have a legal duty to support the child.
If the parents are unmarried, the child is still entitled to support and inheritance from both parents, though the father's name may not be automatically registered on the birth certificate.
9. Same-Sex Relationships and Rights
Same-sex marriage is not legally recognized in China.
Same-sex couples do not have access to the legal rights and protections afforded to married couples, such as adoption rights, inheritance rights, and spousal support.
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