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|Judicial Social Engineering in China Ignites Firestorm||| Print ||
World Affairs journal-Seeking to save marriage in China, the Supreme People’s Court recently struck a nerve in society, creating consternation among women and joy among men. China’s highest judicial organ issued its “Third Interpretation Concerning Certain Issues Relating to the Marriage Law of the People’s Republic of China” and demonstrated why judicial social engineering often fails. Under China’s old rule, the marital residence was divided evenly between husband and wife in a divorce except in cases of bigamy, domestic violence, or abandonment. Effective August 13th, however, residential property is no longer automatically considered jointly owned. Now, whoever brings the residence into the marriage generally keeps it. Although formally an interpretation, the ruling, issued by the court composed of 12 males and one female, is essentially a change in the law.
On its face, the ruling looks like a neutral attempt to divide property, but in the context of Chinese society critics have expressed outrage that the decision shows “favoritism” toward males. China’s highest tribunal was evidently trying to eliminate the financial incentives to walk away from marriages, perceived to be responsible for skyrocketing divorce rates.
In each of the last eight years, divorces in China have increased by more than seven percent. In the first half of this year, almost a million marriages were dissolved, up 17.2 percent over the same period in 2010. Among marriages of those aged 18 to 30, about a third end in divorce.
The new judicial interpretation evidently disadvantages women. Take the case of Yang Yiyan, recently highlighted in the South China Morning Post. “My ex-husband bought the apartment before we were married, so under the new law I’m not entitled to anything,” said the 31-year-old travel agent in Beijing, married for two years. “I’m hoping to get the car and half the money I paid into our mortgage for the past two years.”
Yang can still support herself with her well-paying job, but women who leave the workforce when they marry cannot. Especially disadvantaged are women in the countryside, where spurned brides have little to fall back on.
The new interpretation is already affecting behavior across China. Women are reportedly threatening to refuse to have children or care for in-laws unless they are registered as co-owners before marriage, a tactic to ensure they get at least part of their marital homes.
The new interpretation is also destabilizing marriages as women come to realize their vulnerability. “We’ve received inquiries from a lot of women who are panicking,” says Wang Xiuquan, a family lawyer in the Chinese capital. “They think the new law means their husbands can take a mistress without anything happening to him, because if the wife threatens him with divorce he will get to keep the house. Even women in good marriages are suspicious and are calling us about the implications of the new law.”
The central government opened the floodgates early last decade by no longer requiring danwei—work units—and neighborhood committees to approve of the dissolution of marriages. Now, the Supreme People’s Court is seeking to use its power to counteract the effect of the prior relaxation of totalitarian-era controls.
The evident concern is that greedy women have been gaming the rules by requiring potential husbands to buy apartments and then to surrender half of them after short marriages, but the “interpretation” of the marriage law, however well intentioned, is bound to create even more difficulties than it solves. Even in communist societies, where people are supposed to take their cues from officials, judicial activism does not work well.