A new law in China, which makes it harder for couples to divorce because of the cooling off period, has sent husbands and wives rushing to file applications to dissolve their marriages.
Under the new Chinese law, which was implemented on January 1st, couples who agree to dissolve their marriage must complete a month-long “cooling-off” period to reconsider their positions. After the 30 days have passed, couples can go to their local civil affairs bureau to apply a second time for their official divorce documents.
Divorce lawyers have been inundated with requests from couples to file for divorce once their 30 days are up.
In some cities, the demand for consultations with divorce lawyers is so high that scalpers are charging premium prices online to help couples secure appointments.
A lawyer based in Sichuan province who specializes in divorce, says he has already received numerous phone calls from anxious clients concerned that the new law complicates their divorce and compromises their freedom to split.
If one party withdraws from the agreement to divorce before the 30 days are up, the application is cancelled, leaving the other party to apply again and restart the 30-day clock, or to sue for a divorce – a costly and lengthy process.
One client was a rubber stamp away from having her divorce finalized when her husband changed his mind. Even before the cooling-off period was introduced, it was easy for one party to a mutually agreed divorce to change their mind. Now, with the 30-day period, the divorce process is too unpredictable.
I’ve written on divorce issues and divorce planning. In Florida, a divorce is called a “dissolution of marriage.” Florida is one of the many states that have abolished fault as a ground for dissolution of marriage.
The only requirement to dissolve a marriage is for one of the parties to prove that the marriage is “irretrievably broken.” Either spouse can file for the dissolution of marriage.
You must prove that a marriage exists, one party has been a Florida resident for six months immediately preceding the filing of the petition, and the marriage is irretrievably broken.
The reason for the irretrievable breakdown, however, may be considered under certain limited circumstances in the determination of alimony, equitable distribution of marital assets and debts, and the development of the parenting plan.
While the coronavirus pandemic has caused a spike in divorce filings in Florida, there have not been reports of scalpers yet. The divorce process can be very emotional and traumatic for couples as well as their kids. Spouses often do not know their legal rights and obligations. Court clerks and judges can answer some basic questions but cannot give legal advice.
The Mediation Exception
When the Chinese law was passed last year, Chinese citizens criticized the central government for interfering in private matters. More than 600 million comments were posted online using the hashtag “oppose divorce cooling-off period”. It became the top trending topic online, with internet users demanding to know if Chinese people no longer had the freedom to divorce as they chose.
Officials believed the legislation would lower the divorce rate in China, which has risen rapidly, and prevent “impulsive divorces” among young people. Lockdowns to stop the spread of coronavirus have coincided with a spike in the divorce rate.
Couples may be able to avoid delays in settling their affairs by applying for mediation instead of filing for divorce.
Mediation is a process that helps separating and divorcing couples find amicable solutions to their disputes. The process uses an impartial third party, a family mediator, who is trained in mediation. In mediation, if both parties reach an agreement, the court issues a document that carries the same weight as a divorce decree.
The new law also does not apply if a spouse files for divorce on the grounds that they are a victim of domestic violence. However, the law would still disadvantage women, particularly those without an independent source of income.
That’s because men can decide whether they want to divorce or retract their application. If a woman wants to and the man doesn’t, the woman will then have to sue, hiring a lawyer at great personal and financial cost. Many women – particularly full-time housewives – aren’t in a position to do this.
Another way around the new law is for couples to sign a prenuptial contract on childcare arrangements and the division of property in the event of a split. That way if, during the month-long cooling-off period, one party changed their mind, the contract already in place would streamline the process.
The rights of Chinese citizens to marry and divorce has long been a matter for public debate. In December, weeks before the law brought in the cooling-off period for divorcing couples, a woman in Shaanxi province, northwest China, filed for divorce after “being beaten by my husband for 40 years”, according to public court documents on the website Chinese Judgements Online.
The judge refused to grant a divorce, saying the couple had been together for 40 years and would need each other in their later years. “She should cherish her hard-earned happiness in her later years,” the judge wrote on the case file.
The South China Morning Post article is here.