Some typical Chinese family law cases in 2015

dd9a8f4c1a39797ea5a7e4843c8a2724 (1)Each month (as highlighted this earlier blogpost), the Supreme People’s Court (SPC) issues typical cases at a press conference. In November, family law cases were the center of attention for a change and were briefly reported by the South China Morning Post.

This month’s typical cases were selected from the Beijing, Shandong, and Henan courts and are aimed at educating the general public rather than legal professionals.  The cases, statistics, and comments from the Supreme People’s judiciary  give a glimpse into the social, economic, and cultural changes that have affected Chinese families over the past 20 years and reflect the differences between rural and big city life.

Statistics

Judicial statistics is one of the areas slated for reform by the Court, which has the potential to improve (or not) the situation for analysts of the Chinese court system.

  • 4,000,000 family law cases have been heard in the past year and 10 months. President Zhou Qiang reported earlier this year that  1,619,000 family law cases were heard in 2014, accounting for about 30% of civil cases, which would mean that over 2 million cases had been heard in the first 10 months of 2015 (assuming the cases are classified the same way in both years).
  • 124981 family law cases have been heard in the Shandong courts this year, constituting about 24% of all civil cases.
  • In the Beijing courts, 38, 619 first instance family law cases were heard in 2014.

Issues for Chinese judges

The press release hinted at some of the difficult issues facing Chinese family law judges nationally, which are many of the same facing their counterparts in Shenzhen:

  • Division of property when spouses divorce, which means both division of family home(s) and family business(es).  Parents often provide some or all of the funds for the home, before marriage, and the controversial rule set out in the #3 Marriage Law Interpretation
  • Child custody;
  • Divorce after a second marriage.

Divorcing spouses are increasingly antagonistic, making it difficult for judges to mediate a settlement, which is the preferred resolution for Chinese judges.

Summaries of some of the 30 typical cases

Must engagement gifts be returned? A case from a rural court in Shandong

Zhang and Zhao were introduced by Zheng, and became engaged. Zhang gave Zhao 40,000 RMB cash, four rings, and other gifts as betrothal gifts (彩礼).  The couple did not marry, and Zhao refused to return the cash and gifts. Zhang sued in the Jining District Court.  At trial, Zhao returned the 4 rings.  The Jining Court ordered Zhao to return the cash but not the gifts.

The SPC commentary noted that although the cash and other items are in form a gift, the legal consequences are different, and according to the #2 Interpretation of the Marriage Law, the gifts must be returned. Article 10 (1) of that interpretation addresses this situation: if the court finds in pleadings a demand for the return of the betrothal gifts given to the other party according to the traditional practices because the parties fail to register their marriage, the people’s court shall uphold the demand.

Concealing property from ex-spouse (Beijing)

Sun and Li divorced in 2004.  The arrangements the couple made were that the wife Li would have custody of the child, the formerly state-owned housing would belong to the wife, and the business, cars, etc. would belong to the husband, who would provide alimony and child support.  In the process of demanding child support from Sun in 2014, Li discovered that Sun had bought property during the marriage, but had concealed that fact from her. She went to court to demand that ownership of the apartment be transferred to her name. Sun said that the apartment was bought when the couple was living apart, he had told her, the divorce settlement provided that the business, cars, etc. belonged to the husband and besides the statute of limitations had lapsed years ago.

The Changping District court decided that because the apartment had been bought during the marriage, it was joint marital property and Sun could not provide credible evidence that Li knew of the property during the marriage.  Therefore the statute of limitations argument failed. The court decided that ownership of the apartment should remain with Sun, but that Li was entitled to half of its market value, or 1,400,000 RMB.  The couple appealed to the #2 Beijing Intermediate Court which upheld the lower court.

The SPC commented that because traditional attitudes of marriage for life have changed, there are more and more divorce cases.  In this case,  because Sun concealed the purchase of the apartment, under Article 47 of the Marriage Law that when the court partitions the property, it could allocate less or no part to Sun.

Does the non-custodial parent of a child born to an unmarried couple have visitation rights? (case from a rural Henan court)

Wang and Chai were introduced and subsequently had a wedding celebration according to local customs, but never formally registered their marriage. They lived together and Chai gave birth to little Wang.  Thereafter the couple separated.  The couple went to the Xun County court to resolve their disagreements about the child.  The court decided that Chai should have custody of the child, until the child is old enough to express her preferences.  A month later Wang went back to court to demand visitation rights.

The Xun County court relied on Art. 38 of the Marriage Law, concerning visitation rights of the non-custodial parent in divorce to decide that the father could visit the child the first Sunday of each month from 9 am to 5 pm.

The SPC commented that visitation rights are a basic legal right of a non-custodial parent to have contact, visit, and live together for short periods, but visitation must be done in a way that does not affect the normal life and studies of the child.

Do the elderly have the right to support from their children? (a Beijing case)

Seventy seven year old Mrs. Liu was in poor health and in financial difficulties.  She sued her two children in Beijing’s Xicheng District Court to require them to provide her support in the amount of 900 RMB monthly.  The daughter said she had no income and the son said his after- tax income was only 6500 RMB and refused.  The court ordered the son to pay 800 RMB per month and the daughter 500 RMB (on the grounds that based on her work history she must have income).

The SPC commented that grown children have the legal duty to support their parents [under the Law on the Protection of the Rights and Interests of the Elderly], but the amount will depend on the elderly person’s cost of living, the health of the elderly person, and life style, and if the elderly person has several persons to look to, the amounts each will need to pay in support will depend on each person’s financial situation.

 

 

 

 

 

 

 

 

 

 

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