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Article China: Court Orders "Cooling-Down" Period in Divorce Proceedings

(Apr. 5, 2017) On March 8, 2017, a county court in Sichuan Province, China, reportedly ordered a divorcing couple to “cool down” for three months before mentioning the subject of divorce to each other.  “During the cooling-down period, the parties must remain calm and rational and think twice before acting, and in principle cannot bring up divorce to each other,” the court order reads.  (Sichuan Fa Shoufen Lihun Lengjing Qi Tongzhi Shu, Xianding Fuqi Lengjing Sange Yue [Sichuan Issued First-Ever Notice of Divorce Cooling-Down Period, Ordering Couple to Cool Down for Three Months], BEIJING YOUTH DAILY (Mar. 22, 2017).)

The county court that issued the order is among 118 pilot courts selected by the Supreme People’s Court (SPC) from courts throughout the country to experiment with “adjudication methods and work mechanism reform in family cases,” a two-year-long project launched by the SPC in 2016.  The project aims to improve courts’ adjudication of domestic disputes, including cases involving divorce, child custody, adoption, and inheritance.  There are in fact other pilot courts that have been ordering divorcing couples to “cool down” for a period of time ranging from one month to six months.  (Id.; Zuigao Renmin Fayuan Guanyu Kaizhan Jiashi Shenpan Fangshi he Gongzuo Jizhi Gaige Shidian Gongzuo de Yijian [SPC Opinions on Launching Pilot Programs in Family Case Adjudication Methods and on Work Mechanism Reform], Fa [2016] No. 128 (Apr. 21, 2016), SPC website.)


In China, separation is not required in cases of divorce by mutual consent where the two parties have no disputes over child maintenance and property disposition.  They may file for divorce registration with the marriage registration offices in the civil affairs departments of the local government, according to the PRC Marriage Law.  (Marriage Law of the People’s Republic of China (promulgated on Sept. 10, 1980, as amended on Apr. 28, 2001) art. 31, The National People’s Congress of the People’s Republic of China website.)

Separation may serve as a ground on which the court grants divorce in divorce lawsuits brought up by one party when the other party does not consent.  Under the Marriage Law, the court must conduct mediation in divorce lawsuits, and divorce is granted only if mediation fails and “mutual affection has completely broken down.”  (Id. art. 32.)  The Marriage Law, as revised in 2001, specifies the grounds on which the court may grant divorce when the mediation fails, including where one party is involved in bigamy, cohabits with another person, commits domestic violence, or maltreats or abandons other family members, and where the two parties have separated for two years or more “for lack of mutual affection.”  (Id.)

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