Adultery is not reason to file for divorce: Chinese court’s reasoning criticised

A court in China was heavily criticised for arguing that adultery was not a good enough reason to file for divorce.
PHOTO: A handout photo.

A provincial court in eastern China said in an article on Sunday that people cannot file for divorce if they only cite “adultery” as a reason for the breakup, causing a public uproar.

The court in Shandong argued that because most people in affairs do not live with their lovers, cheating fails to meet the “cohabitation” standard that is a part of Chinese divorce laws.

“When a married person is caught cheating, their behaviour is not cohabitation as long as they do not live with the lover for a long, steady period, so their spouses cannot file for divorce for this reason. Furthermore, they cannot use adultery as the reason to request compensation for damages,” the article read.

It continued: “In other words, if you have evidence that your spouse got a room with someone of the opposite gender, you cannot file for a divorce because this is not long cohabitation.”

The article was taken down after the general public heavily criticised it.

In January 2021, China passed a law that established a 30-day cooling-off period for couples who want a divorce. The logic was that they might makeup during that period.

The Shandong court’s article cited last year’s law and wrote: “On the one hand, for divorce applications, the law has added the 30-day cooling-off period. On the other hand, for divorce litigations, the legal interpretation has excluded cheating from the conditions for divorce.”

Legal scholars said the court misinterpreted the law.

Zhou Youjun, a professor from the Law School of Beihang University in Beijing, said the article confused the rights of divorce seekers with the responsibility of Chinese courts.

“The provisions cited by the article apply to the court’s hearing and ruling, but there’s no minimum requirement for people to file for a divorce. Requesting a divorce is a citizen’s basic right, and it is the court’s responsibility to decide whether to grant the divorce. This difference should not be confused,” he wrote in a commentary on Hongxing News.

“The basic principle of divorce laws in China is to ‘safeguard the freedom to divorce while still opposing hasty divorces’,” he said.

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China’s divorce rate rose from two per 1,000 people in 2010 to 3.4 per 1,000 in 2019, before dropping to 3.1 per 1,000 people in 2020. The divorce rate is expected to drop in 2021, based on quarterly numbers released by the government.

The article comes in the context of a demographics crisis in which China is ageing quickly while its young people are putting off marriage and babies, often altogether rejecting starting a traditional family.

Population growth in the past decade dropped to its slowest since the 1950s as births declined, according to China’s once-a-decade census conducted in 2020.

The controversial remarks increased public concerns that getting divorced is becoming more difficult.

“What the Shandong court did was just tell everybody that it is hard to divorce. That means we should be careful when getting married,” one user commented on Weibo.

This article was first published in South China Morning Post.

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