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2021-01-01 08:35:12 Voices

On Jan. 1, 2021, the People’s Republic of China’s first civil code officially comes into force. It is a momentous accomplishment: The code brings together laws covering everything from property and inheritance to marriage, family, and personhood rights.

But this very real achievement is in danger of being overshadowed by a single provision: a new divorce “cool-off period” that requires couples divorcing by mutual consent to wait 30 days before finalizing their split.

From the very start, the cool-off period was by far the most controversial element of the civil code. When state broadcaster China Central Television asked users of microblogging platform Weibo whether they supported the provision, the vast majority of the more than 600,000 responses it received were opposed to the plan. Their reasons ranged from the desire to protect the freedom to divorce, to fears that it would end up reducing the country’s already falling marriage rate.

Meanwhile, in stark contrast to public opinion, China’s legal circles were almost unanimous in their support of the legislation. In interviews and academic papers, they argued that the freedom to divorce is already limited; that family stability should take precedence over individual choice; and that the cool-off period represents neither a ban on divorce, nor a particularly long time to wait. Xia Yinlan, an expert on marriage and family law, said in an interview that the new rule was aimed at promoting both traditional Chinese and socialist core values while stabilizing family relationships. Another expert, Xue Ninglan, wrote that it would give couples time to rethink decisions made in the heat of the moment.

From the very start, the cool-off period was by far the most controversial element of the civil code.

There were a few exceptions, including judges Wang Liren and Pan Ping, who cautioned that the cool-off period should not be interpreted rigidly or without taking the reality of people’s lives into account.

Although cool-off periods are now the law of the land, the debate over them is far from over. So it’s worth looking into some of the assumptions regarding the new system to see if we can determine where the real problems might lie — and how they might best be solved.

The push to introduce a cool-off period for divorce rose out of growing anxiety over China’s steadily increasing divorce rate. The goal, according to backers, is to reduce impulsive divorces, protect the interests of minors, and stabilize the family unit. And at least one analysis pointed to the need to stem the rising tide of “individualism.”

The first thing we should ask is whether concerns over the high divorce rate are perhaps caused by overly hidebound, traditional notions of marriage. Historically, Chinese believed people should remain together with their partner until death, with divorce looked upon as something shameful. Could the alarms being raised over the steadily increasing divorce rate be based on a tacit acceptance of these traditional values? Perhaps. But if they are, they’re too late. Modern society has long-since moved on from a belief in “remaining with one’s partner until death.” The Marriage Law, passed soon after the founding of the People’s Republic of China, put that issue to bed by guaranteeing the freedom to divorce — a systematic rejection of any stigma surrounding divorce.

Jamie Grill/Tetra images/People Visual

Jamie Grill/Tetra images/People Visual

The second question worth considering is whether maintaining the integrity of marriage is the same thing as maintaining family stability, and whether it is really in the best interests of children. Plenty of real-life examples attest to the fact that compromises made by either one or both members of a couple do not always keep a family functioning. On the contrary, the resulting tension, indifference, friction, and even cruelty harm every member of the family — especially children. Love and respect are the foundational values of marriage, and the best things that parents can teach their kids. And as long as these values are upheld, children can remain happy, even if their parents' marriage comes to an end.

As for the divorce rate's supposed link to "individualism" — that is, the privileging of individual happiness over the common good — this assumption, too, merits reexamination. When China first guaranteed the freedom to divorce 70 years ago, it was not done to promote individualism, but rather to protect people's autonomy and to guarantee the side seeking divorce a way out from a painful marriage. In this sense, the freedom to divorce is like the freedom to marry: Both are indeed methods of pursuing happiness, but divorce itself is not a happy experience, let alone a manifestation of "individualism."

Plenty of real-life examples attest to the fact that compromises made by either one or both members of a couple do not always keep a family functioning.

The most direct legislative goal of the cool-off period is to bring down the divorce rate. However, if the high divorce rate reflects social demand for divorces, then those who need a divorce will still get one. Nor is the 30-day waiting period a rational unit of time: It merely increases time costs. And since the length of time is directly proportional to the intensity of the stress felt by those involved, this only raises the already unbearable emotional costs for the person seeking divorce by dragging out the situation longer than necessary. Ironically, the pressure felt by the disadvantaged side in an uncontested divorce will likely end up being passed on to society, as more people lose interest and faith in marriage as an institution that can be entered and left freely.

If a high divorce rate inevitably causes turmoil, it is only because it represents a shift in values from traditional gender relations based on dependence to relationships based on equality. It reflects women's growing independence; a shift toward viewing marriage in emotional terms as opposed to material ones; and an embrace of "living," as opposed to merely existing. As awareness of gender equality continues to rise and eventually levels off, the high divorce rate will start to fall.

Although still in its infancy, the new law has already been tried in the court of public opinion. All we can do is remain clearheaded and see if it can, in fact, reduce the divorce rate, and whether in the process of doing so it creates new social or institutional problems. In the meantime, the situation calls for some leeway and flexibility. Legislation is not only about codifying the marriage values of the legislators themselves. Rather, it should conform to the rules of social development and meet people's expectations of what a legal system should look like.

Translator: David Ball; editors: Wu Haiyun and Kilian O'Donnell; portrait artist: Wang Zhenhao.

(Header image: BBTree/People Visual)