On January 1, the Supreme People’s Court released the first interpretations of China’s Civil Code, putting into effect the nation’s first comprehensive collection of private laws on personal and property rights. When it passed last May, public attention was fixed on long-running crises of domestic abuse and violence against women in the country, and anger would rise as the year went on to include the grisly murder of a rural Tibetan woman, and a Mandopop star’s spirited advocacy against gender violence. While some initial commentary on the code cited the inclusion of clauses legally defining sexual harassment, protecting reproductive rights, or allowing property rights for LGBTQ+ couples as relative marks of progress, vagueness in the “largely symbolic” legislation was noted, and a lack of certain other protections was lamented.
One point that drew wide concern was the inclusion of a minimum 30-day “cooling-off” period for divorces, which many saw as directly imperiling the lives of women. When the nation’s first civil code went into effect on January 1, The Conversation reported on the resounding concerns:
Chinese feminists feel that their reservations about a newly introduced one-month cooling-off period before a divorce is finalised have been ignored. They argue that it undermines the freedom to divorce and disregards victims of domestic violence. There has been ongoing criticism online about the new rules since May.
[…] The earliest protest started before the civil code was passed in May. During the internal deliberation of the People’s Congress in May, one delegate, Jiang Shengnan, condemned the divorce cooling-off period in sharp words: “The freedom of the majority should not be restricted just because a few couples can’t sort themselves out.” She also raised the issue of domestic violence. According to the new code, after a couple file a divorce application, either person can withdraw the application during the cooling-off period without the other person’s consent. This rule could be dangerous for victims of domestic violence.
Jiang also boldly criticised the suspected real purpose of the cooling-off period. If the party intends to maintain a decent birth rate by keeping marriages afloat, she argued, imposing restrictions on divorce will not work, because people, especially women, will simply refuse to marry. Her comments were widely reported on Chinese social media. […] [Source]
A week into 2020, another grisly spousal murder case highlighted the prevalence of domestic violence; the social, cultural, and legislative disadvantages facing women in Chinese society; and the fatal flaws of the now codified divorce “cooling-off period.”
According to friends and family, Kan Xiaofang dreamed of being teacher. The only of four children in her family to go to junior college, she worked in sales and ecommerce after graduating. Under intense social and family pressure at age 30, she married a man named Yu from a neighboring village in 2014. Her first daughter was born the same year, and five months later she became pregnant with her second. After her youngest daughter was born, a pattern of domestic violence began. Last spring, Kan decided to flee the violence, and took an assembly line job at an electronics factory about a half-hour drive from her home. She worked hard, alternating between day and more lucrative night shifts, but was in constant fear. When she heard that her husband was searching for her, she fled to Wuhan in the late summer. She worked double shifts, lived simply, and saved most of her earnings. After six years of marriage, she filed for divorce in 2021.
Over the New Year’s holiday early this month, she returned to Yangxin to collect necessities and proceed with the divorce. According to her sister, when the two saw an axe near the door of the empty house she used to live in, Kan commented “look, the axe is even ready, I guess he is planning to kill me.” On January 8, after accompanying a judge and workers for a property appraisal for any potential division of assets, Kan Xiaofang was brutally murdered by her husband. A deleted article on the case, archived by CDT Chinese, includes excerpts from a hand-written last testament left for her family on January 7—another sign that Kan saw her fate on the horizon. The excerpt is translated below:
“This time it’s hard to tell whether going home is a good or bad idea. So just in case, I ask family to look for this posthumous letter inside the iron box. It is best if you bury me at whichever place you wish, but if not please scatter my ashes above the Fu River, or down by the shore is also good. But by all means, don’t bury me in Shangyu (Yu’s hometown), for I wish to be peaceful in death. There is no need for a funeral or to select an auspicious date for burial or any other rites, and even more so no big coffin, just a simple urn will do. And I’ve no need for so-called sacrifices to the ancestors, just don’t forget my murderer, and don’t forgive him!” [Chinese]
A January 16 article by WeChat user @青橙故事 begins with an excerpt from another handwritten note showing that Kan feared for her life months earlier. An extended excerpt of the article, which directly implicates the “cooling-off” rule for perpetuating a pattern of violence, is translated below:
On January 8, 2021, a woman named Xiaofang from Yangxin County, Huangshi City, Hubei, was hacked to death by her husband at the doorstep of her home. She died in the hospital three days later.
While sorting through the relics, Xiaofang’s family found a note dated May 22 which read: “If anything unexpected happens to me, all of my property shall belong to my mother, including: half of the property rights to room 2902, accident compensation fund, and all assets in my personal bank. There is no need to organize a big funeral or prepare a big coffin, after cremation my remains can be placed in an urn and buried on the hill at the Kan family reservoir along the stone steps, the higher, the deeper, the better.”
Xiaofang’s sister told the media in an interview that her parents are now feeling very guilty, that they pushed her too hard to marry—at 30 Xiaofang was still unwed, and was urged to marry her husband Yu Hu two months after meeting him.
After marriage, Xiaofang had two daughters. She alone was responsible for all of the family’s expenses, housework, and childcare. Those who knew her remember Xiaofang as a hard-working person. She worked as a courier before the incident, and she took her daughters with her to run her routes so that they would be looked after.
Due to Yu Hu’s repeated domestic violence against Xiaofang, she sued for divorce. The case was opened on July 28 of last year. On January 1, after the judge and appraisers finished their second appraisal of Xiaofang’s house and left, Yu Hu hacked and killed Xiaofang.
Xiaofang’s family said that Xiaofang had long ago written a last testament having had a premonition of being harmed. Her family will arrange the burial according to her wishes.
This case has triggered a new round of public discussion about the “cooling-off period for divorce.” Regarding this, some legal practitioners have suggested that the “cooling-off period” is only applicable to divorces negotiated by the Civil Affairs Bureau. No “divorce cooling-off period” applies in court litigation, so they claim there is no need for concern.
Is this really the case?
On September 26, 2019 a homicide occurred in Nanjing’s Jiangning District. A husband named Wei murdered his wife Dong in public in their neighborhood. Dong had sued for divorce—in August 2018.
During the marriage, Wei had engaged in domestic violence against Dong on several occasions—six police reports for incidents of domestic violence had been left behind, two subpoenas written, and a [lawsuit had been underway for a year]. The final result, a man killed his wife.
Looking at over 150,000 divorce case judgements in Henan and Zhejiang provinces between 2009-2016, Indiana University Bloomington Professor Ethan Michelson discovered the following features:
1. Even if the woman has sufficient evidence of domestic violence, if the man does not agree to divorce the court will usually find that “the relationship has not broken down”;
2. The average time between an initial application for divorce and the final judgment is close to one year—which, as it were, is equivalent to the “cooling-off period”;
3. Men often make threats related to the outcome of their sentences, whether to the safety of the woman’s life, or to that of the judge’s career.
In summary, the final verdict: the experience of domestic violence has very little influence on the sentence, the primary variable is the man’s agreement to divorce.
Not only that, but after the Civil Code’s “cooling-off period” for divorce protocol came into effect on January 1, 2021, the court took things a level further by directly issuing a “Notification on the Cooling-off Period for Divorce.”
In the notice, the judge not only announced the “divorce cooling-off period,” but also gave the parties two follow-up options: 1) extend the divorce cooling-off period; 2) if things have reconciled, retract the lawsuit.
In this case, to say the least, the court tried to block the road to divorce.
Is it only China that makes it so difficult to divorce?
No, it isn’t.
In the United States, state laws vary, but typically require a waiting period of between 60 days and six months. In Germany, a one-year waiting period is usually required. Divorce tends to be more difficult in countries more affected by religious and social traditions.
In these countries, however, safeguards for women are relatively comprehensive—for example, separation protected by law; higher and more effective penalties against domestic violence; habeas corpus orders efficiently enforced; low-income parties compensated by the other party and if enforcement isn’t possible, various types of social service bureaus offer subsidies, etc.
Domestically, however, both separation and marital rape exist in a gray zone, and under most circumstances women are the vulnerable group. If as long as one day goes without divorce, there are still “sexual duties” and an obligation to maintain marriage. At the same time, the Marriage Act also protects the wealthy. In practice, with the socio-economic status of the sexes still far from equal, this means it favors men. In the case of the murdered wife introduced at the beginning of this article, the man did not support his family, did not do housework, did not take care of the children, did not seem to fulfill any obligations at all. Still, the survival of the marriage still relies mainly on his will.
Therefore, under the premise that this environment is just too difficult to change, all that an individual can do is set up their own cooling-off period before marriage. […] [Chinese]