CHINA Trends and Developments Contributed by: Liang Han, Huiyun Gao, Jie Teng and Yanfei Zhang, King & Capital Law Firm
ring property or evading debts through divorce agree ‑ ments. Simultaneously, Interpretation (II) adheres to the “joint signature for joint debt” principle, recognis ‑ ing only debts jointly signed or subsequently ratified by both parties, and debts incurred for daily family needs as joint debts. Refinement: property division in cohabitation Interpretation (II) also refines the rules for property division in cohabitation relationships. It stipulates that property acquired during cohabitation shall, in principle, be owned separately based on individual acquisition, but property purchased with joint funds shall be divided according to the contribution ratio. Acknowledging the complexity of cohabitation life, the interpretation also requires considering the circum ‑ stances of cohabitation, the existence of serious fault and whether there are common children when dividing property, ensuring fairness and reasonableness. Validity: bigamous marriages and the safeguard of monogamy The clarification regarding the validity of bigamous marriages is an important aspect of Interpretation (II)’s upholding of the monogamy system. Article 1 stipu ‑ lates that bigamy is not subject to validation through subsequent events; even if the original legally mar ‑ ried party has divorced or passed away at the time of litigation, the subsequent bigamous relationship does not automatically become valid. This highlights the serious violation of public order and good morals by bigamy. Overall trends: matrimonial and family law development Overall, Interpretation (II) reflects new trends in the development of matrimonial and family law: • firstly, balancing the protection of individual rights with family interests, respecting individual property rights while maintaining marital stability; • secondly, recognising the diverse value of family contributions, particularly invisible contributions like housework and child-rearing; • thirdly, strengthening the maintenance of public order, firmly prohibiting acts like bigamy that violate public order and good morals; and
• fourthly, focusing on the principle of the best interests of the child, prioritising the protection of minors’ rights in divorce and custody disputes. Amicable Divorce Core system: divorce cooling-off period under agreement divorce The divorce-by-agreement system is an important component of the Book of Marriage and Family in the Civil Code, with the most innovative and closely watched aspect being the divorce cooling-off period. According to Article 1077 of the Civil Code, divorce by agreement requires a two-stage procedure: • the first stage is a 30-day withdrawal period, dur ‑ ing which either party can unilaterally withdraw the application within 30 days from the date the marriage registration authority receives the divorce registration application; and • the second stage is a 30-day confirmation period, within 30 days after the expiry of the first stage, where both parties must appear together at the marriage registration authority to apply for the issu ‑ ance of a divorce certificate – failure to apply will be deemed as withdrawal of the application. Implementation effect: reduced divorce rate and relationship repair The effectof the divorce cooling-off period has begun to show. Statistics indicate that since its implemen ‑ tation, the national divorce rate has decreased, and some impulsive divorce couples have withdrawn their applications during the cooling-off period, reflecting the system’s positive role in maintaining marital sta ‑ bility. In practice, many local marriage registration offices also provide marriage counselling services to help couples applying for divorce resolve conflicts and repair relationships. Exceptional provision: excluding domestic violence cases from the cooling-off period Nevertheless, the divorce cooling-off period sys ‑ tem faces some criticism, particularly regarding the potential to prolong the suffering of victims of domes ‑ tic violence. In this regard, Article 1079 of the Civil Code explicitly states that for divorce cases involving circumstances such as domestic violence, the litiga ‑ tion divorce procedure applies, and the cooling-off
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