May 2022 | Volume 23 No. 2
Men Win out in Divorce in China
Divorce in China is, on paper, a gender-neutral matter: couples can apply for what is basically no-fault divorce, domestic violence is a legal condition for divorce, property should be divided evenly, and mediation should be used to find a middle ground. But a new book, Divorce in China, by Professor He Xin of the Faculty of Law has found other considerations are carrying greater weight when it comes to divorce outcomes. And often, it is women who lose out.
“The law is quite gender neutral,” he said. “But there are institutional constraints that mean it is not enforced in this way. These constraints actually make way for traditional values or political concerns to be considered, which leads to gendered outcomes.”
The problems start with the process of filing for divorce. First-time applications are typically denied by judges and couples have to wait another six months to apply again, at which point they are usually approved. That first denial is considered evidence that the couple cannot be reconciled.
However, the first denial even applies if there is evidence of domestic violence – leaving the woman vulnerable to further abuse. And when cases are contested and judges need to decide on property division and child custody, financial and traditional considerations factor in.
The value of property is usually determined by bidding – whoever bids highest can buy out the other party – while child custody is often decided by earning capacity. In both cases, women are usually in the weaker financial position. And for child custody, the men often insist on having the child, especially male children because they want an heir.
Divorce in China: Institutional Constraints and Gendered Outcomes was published by NYU Press in 2021.
Efficiency and stability hold sway
Why do these decisions get made, especially when they run counter to the law, as is the case with domestic violence? Professor He attended trials and interviewed judges for his research. His findings show that the system, which emphasises efficiency and stability, may be pointing judges towards more gendered decisions.
On efficiency, judges are assessed in part by the number of cases they close. Judges have a heavy caseload so they need a fairly quick turnaround to avoid being overwhelmed. Denying the first divorce petition serves that end. “Sorting out complicated issues like property and custody takes a lot of time and energy. If they push it away, the couple might not come back or if they do, another judge might have to handle it,” he said.
Stability is also a big concern. If a party is unhappy with a decision and threatens to kill themselves, the judge or other people, or petitions outside the courthouse – all of which Professor He says are not uncommon – then that can cause problems for the judge and the system. “Men are more capable of making realistic threats to stability and more likely to do those radical things, so the judge then has to compromise more with them and persuade the female to compromise,” he said.
“I call these efficiency and stability concerns ‘institutional constraints’. The judges I spoke with understood these constraints, but they didn’t realise they had such a huge impact on gender equality.”
A courtroom for civil trials in China.
The results can be dangerous. For instance, on domestic violence, not only is the first petition usually denied, but the fact of domestic violence is often ‘erased’ in subsequent proceedings, even if the judge originally found evidence of violence. This is because after a trial period, both parties are required to undergo mediation – something judges also prefer because it means the decision will not be appealed. “But to get that mediated outcome, one doesn’t really want to raise the issue of domestic violence because the man will deny it and it will become harder to get a deal,” he said. “Once it’s mediated, everything is covered up and buried, so there is nothing unlawful on the record.”
The divorce process also means women are more likely to be discouraged from fighting for child custody or a fairer share of property if they want the divorce to be granted quickly. Some 70 per cent of divorce petitioners are women.
“The judges follow strictly the law and the instructions of the Supreme People’s Court and they think their decisions are neutral. But they are ignoring the underlying socioeconomic inequality between the two genders, which affects the outcomes. Isn’t that a little sad?” Professor He said.
He is not hopeful that things will improve, although he hopes his book will spark discussion about reducing the burden on women in divorce proceedings. “It’s hard to change the pattern because the government needs a certain index to measure the performance of judges, and stability is always a concern,” he said.
The judges follow strictly the law and the instructions of the Supreme People’s Court and they think their decisions are neutral. But they are ignoring the underlying socioeconomic inequality between the two genders, which affects the outcomes.
PROFESSOR HE XIN