As highlighted in a December,2015 post on this blog, and as Supreme People’s Court (SPC) Vice President Shen Deyong announced on 11 May, family courts are coming to China, or at least 100 pilot projects for them. Family law cases have been heard within civil divisions of local courts, but there has been dissatisfaction with the way there are being heard. In 2015, 1,733,000 marriage law cases were heard and about 84,000 inheritance cases.
Family law issues reflect the complexities of Chinese families today:
- Divorce in major cities often touches on the rights to real estate whether debts are debts of one spouse or of the marriage;
- Custody and maintenance are issues, particularly when maintaining an expensive life style is involved;
- In rural areas, bride price and marriage by local customs rather than official registry is an issue.
Justice Shen stressed that family is the basis of society (echoing Confucius). The Women’s Federation, Ministry of Civil Affairs, Ministry of Justice, and Central Political Legal Committee were involved in this initiative. This reform has been piloted on a smaller scale in Guangdong province. District courts in Shenzhen and Zhuhai have been early stage pilots. The SPC issued a document to support the initiative which has not yet been publicly released (Notice of the SPC concerning some courts initiating pilot reform work in family court trial methods and work systems 最高人民法院关于在部分法院开展家事审判方式和工作机制改革试点工作的通知). ［Update–the document was eventually released–available here.]
This is an area in which the Chinese courts, including Supreme People’s Court is looking to jurisdictions outside mainland China (i.e., including the United Kingdom, Australia, Taiwan, Japan, and South Korea) for concepts that may be used in China. Hong Kong law has not been mentioned as a model from which the mainland can transplant concepts, because, as this recent article published by a member of the University of Hong Kong Law Faculty details, Hong Kong family law and family law procedure is many years behind developments in Commonwealth countries, and it is an area in which Hong Kong’s executive led government has delayed introducing comprehensive legislation. Ironically, in March, 2016, the SPC had discussions with Hong Kong’s Secretary of Justice on the issue of the recognition of judgments in the area of marriage and related issues.
Scope of the pilots:
- matrimonial cases and related cases, including divorce, annulment, revocation of marriage;
- custody, child support fees, property division after divorce, etc; maintenance disputes; paternity cases, including parent-child relationship to confirm or deny paternity;
- adoptive relationship disputes;
- cohabitation disputes, including the division of property during cohabitation, children born out of wedlock, and other dependents;
- inheritance disputes.
The pilots will promote:
- mediation as a way of resolving disputes;
- personal appearance of parties in court;
- putting the interests of the child first.
Issues with family cases that the Shenzhen judges have highlighted:
- family law is not taken seriously as an area of law;
- investigators are needed to support the judges;
- lack of coordination with other authorities involved in family law issues;
- burden of proof needs to change in family law cases, because otherwise it is difficult for the weaker party (generally the woman/elderly) to prove her case;
- court performance indicators make it difficult to handle family law cases properly;
- the courtroom set up must be changed to better accommodate family law disputes;
- questions on handling family law issues that impinge on public policy/morality, such as inheritance by mistresses.
If the Confucian value of family as the basis of society is to be taken seriously the Chinese court system needs to show it by its actions. And the Chinese legal system will need to face the issue that family includes people who are gay/lesbians/transgender.