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The ‘Cooling-off Period’ in Divorce Process Under the Chinese Civil Code

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Kavin Mi Yang


The Law on Cooling-off Period

Part 1 of Article 1077 of the Chinese Civil Code 2020 states that upon receiving an application form for dissolution of marriage, the marriage registry office will allow 30 days (from the date the application form is handed in) for one or both parties to withdraw their application for dissolution of marriage. Part 2 stipulates that after the 30 days ‘cooling off’ period, both parties are given another 30 days to apply and collect the divorce certificate, failure to do so will result in the automatic withdrawal of the application for dissolution of marriage.


Background and Purpose of the Cooling-off Period

Divorce rates in China has been growing steadily ever since 1987, from 0.55 per 1000 inhabitant in 1987 to 3.2 per 1000 in 2017[1]. Under the Supreme People’s Court judicial report on divorce cases 2018, it shows that in over 90% of the cases only 1 party wished to divorce and less than 10% of the cases saw both parties wishing for divorce[2]. This is a result of the rapid increase in ‘rushed divorce’ (as opposed to the traditional mainstream of at-fault divorce, where partners divorce for minor, independent events). It constitutes more than 45% of all divorce in major cities such as Beijing and Shanghai[3].


The Cooling Off Period is not aimed at eradicating the divorce rate altogether, but to reduce the rapid increase in ‘rushed divorce’, by giving both parties time to cool down[4]. There are 2 fundamental reasons behind the aim of reducing rushed divorce. The first being the social-policy reason of maintaining a stable family relationship, especially the relationship between parents and children, to prevent rushed divorce (which the parties tend to regret from doing) from impacting the children. The second being to save the extra costs of remarriage (the remarriage rate in China has been increasing by an average of 15% annually since 2014) for the marriage registry[5].


Criticism on the Cooling-off Period

The main criticism of the cooling-off period is its common, involuntary application to all situations. The cooling-off period applies even if 1 party is at fault, such as when there exists adultery, domestic violence, drug usage and so on. In these circumstances, the application of the cooling-off period puts extra risk on the innocent party and the other family members both physically and economically[6].


Also, during the cooling-off period, both parties are spared from their duties as each other’s spouse, leading to higher chances of parties having affairs outside marriage. More importantly, during the cooling-off period, duties to their children are not clarified by the law, which could lead to adverse impact on the children, or the female party to the marriage who often bares more duty on child caring[7].


Conclusion

The Cooling-off Period is a new attempt of the Chinese legal system to address the social problem of ‘rushed divorce’, despite its effect, it is still in its early stages of development and needs reform on its too-wide application, and clarification of the duties to related parties (the elderly, the children).


 

[1] Sun Yu Xi ‘How I think of Cooling off Period’ (2020) 4 Popular Science.

[2] Wei Jing ‘The Cooling Off Period’ s Role in Divorce Cases’ (2019) 39 Report of Henan Institute of Science and Technology, 50-53. [3] Zhou Jiao ‘Thoughts on Cooling off Period’ (2018) Law and Social Development, 35-36.

[4] Guo Jian Ping ‘The Legal Philosophy behind the Cooling off Period’ (2018), Social Scientist, 26-34.

[5] n1

[6] Fan Meng ‘A brief analysis on Cooling off Period’ (2019) Legality Vision, 183.

[7] n1

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