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Will Civil Code—Marriage and Family Section Present Seven New Divorce Regulations? (II)

date:2019/11/13 Clicks:132
4. The draft stipulates that if the parties have separated for one year and sue for divorce again, the court should judge them to be divorced.
For a long time, both parties sue for divorce for the first time, and the court always awards that divorce is not allowed. This phenomenon has become an "unspoken rule" in divorce proceedings. Both parties often need to sue for divorce a second time, maybe the court will judge both parties divorce. Of course, not all the cases that the two parties sue for divorce for the second time will be decided divorce by the court. Another circumstance is both parties sue for divorce for many times, but the court still awards that divorce is not allowed between two parties. According to the draft, "after the people's court decides that the two parties are not allowed to divorce, the two parties have separated for one year and one party files a divorce lawsuit again, the divorce shall be granted".
5. Grandparents and maternal grandparents will have the right to visit their grandchildren in the draft.
The rights of grandparents and maternal grandparents to visit grandchildren is a new breakthrough in the legislation ofCivil Code-Marriage and Family Section. In the game of these cases, there are conditional visitation rules, that is, only one of the minor children’ parents are died, grandparents or maternal grandparents have right to visit their grandchildren. In the draft, restrictions are completely relaxed, which is a great news for grandparents and maternal grandparents. Of course, it needs to be further clarified whether the grandparents' or maternal grandparents’ visitation rights to their grandchildren can be completely separated from their parents' visitation rights to their children. If parents visit their children this week and the elderly visit their grandchildren next week, it may increase the burden on the children and thus create unnecessary litigation.
6. The draft removes the restriction on housework compensation for divorce property division.
For the housework compensation when divorce property is divided, the current marriage law is applicable to conditional housework compensation. Namely only under the circumstance that husband and wife both sides implement separate property system (that is, both parties sign an agreement on the ownership of property), one party pays more obligation because of fostering children, taking care of the old person, assisting another party to work, can ask housework compensation. The removal of this restriction in the draft undoubtedly provided a fair mechanism for those who had given up their career development to care for their families, which meant that property could be properly divided more.
7. The draft adds miscellaneous provisions on compensation for divorce damages.
The current marriage law stipulates that the no-fault party's claim for divorce damages is limited to four cases, namely: Bigamy; Cohabitation with any other person; Committing domestic violence; Maltreatment or desertion of family members. However, it is unfair to fail to provide compensation support to the no-fault party in cases such as extramarital affairs, drug abuse and gambling, which have caused serious damage to the couple's loyalty and property. In the current four situations, the draft adds a provision of "having other major faults", which can also be used as one of reasons for the no-fault party to claim damages for divorce, which expands the liability of the fault party to a certain extent.
All in all, the seven new divorce regulations in the draft objectively respond to the needs of reality, and may be fine-tuned in the subsequent legislative process, but not completely deleted, which should have positive value for improving marriage and family relations. Of course, we are more looking forward to the "family procedure law" into the legislative planning as soon as possible.
Author of this article:
Mingsheng LU
Chief Attorney of BONBONWU, Partner Attorney of Dentons (China), which consists of 45 offices and spans all of provinces and autonomous regions of China.
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