CHINA Trends and Developments Contributed by: Liang Han, Huiyun Gao, Jie Teng and Yanfei Zhang, King & Capital Law Firm
period for divorce by agreement does not apply. This exception protects the rights of victims, preventing them from suffering further harm due to the cooling- off period. Creditor protection: the right to rescind divorce agreement property clauses Another important development in the divorce sys ‑ tem is the protection of creditors through the right to rescind divorce agreements. Article 3 of Interpreta ‑ tion (II) allows a creditor of one spouse to request the revocation of relevant property division clauses in the divorce agreement if they have evidence proving these clauses affect the realisation of their claims. This pre ‑ vents spouses from maliciously transferring assets or evading debts through divorce agreements. New trend: divorce property division considering the innocent party Divorce property division rules also show new trends. Article 1087 of the Civil Code stipulates that upon divorce, the division of joint property shall follow the principle of considering the interests of the children, the wife and the innocent party. This principle adds protection for the “innocent party” compared to the original Marriage Law, which only mentioned the inter ‑ ests of children and the wife. Improvement: economic compensation for domestic contributions The economic compensation system upon divorce has been further improved. Article 1088 of the Civil Code expands the applicability of compensation for domestic contributions, which is no longer limited to agreed property regimes. Interpretation (II) further clarifies the factors to be considered in determining compensation, including the duration of the marriage, the specific content and intensity of housework, and local income levels. Custody rules: prioritising the best interests of the child Post-divorce child custody rules also place greater emphasis on the principle of the best interests of the child. Article 1084 of the Civil Code stipulates that children under two years of age shall, in principle, be placed in the direct custody of the mother upon divorce. For children over two, if the parents cannot
agree, the court shall decide based on the principle of the best interests of the child; for children over eight years old, their true wishes shall be respected. Value balance: freedom of divorce, family stability and public interest protection The optimisation of the divorce-by-agreement system reflects the value balance in contemporary Chinese matrimonial and family law: • respecting individual freedom to divorce while maintaining family stability; • protecting the rights of both spouses while safe ‑ guarding the best interests of children; and • respecting private autonomy while preventing harm to public interests. Child Matters Guiding philosophy: the principle of the best interests of the child China’s minor support and guardianship system has made significant progress in recent years, establish ‑ ing the “principle of the best interests of the child” as its guiding philosophy. This principle, originating from the “best interests of the child” principle in the UN Convention on the Rights of the Child, is reflected in Chinese laws such as the Civil Code and the Minor Protection Law. Fundamental safeguard: parentage affirmation and denial system The establishment of a parentage system is funda ‑ mental to safeguarding minors’ identity rights. Article 1073 of the Civil Code introduces actions for affirma ‑ tion and denial of parentage, allowing a parent with legitimate reasons to file a lawsuit to affirm or deny parentage. Adult children may file actions for affirma ‑ tion but not for denial. This provision improves the rules for establishing parentage and provides proce ‑ dural support for protecting minors’ identity rights. Divorce custody: respecting minors’ genuine wishes In divorce cases, the determination of child custody places greater emphasis on the will of the minor. Arti ‑ cle 1084 of the Civil Code states that the custody of a child over eight years old shall respect the child’s genuine wishes. This lowers the age from “ten years”,
104 CHAMBERS.COM
Powered by FlippingBook