Comparative Dispute Resolution Process:
Mainland China, Japan and Singapore
11.1There are three areas of family law in Mainland China - (1) the Marriage Law of 1980 covering divorce, property division, child support and custody, (2) adoption and (3) succession.1127 Since 1985 the National Legislators have paid more attention to the protection of women and children.1128 There was a Juvenile Protection Law of 1991, and a Protection of Women Law in 1992.
11.2Article 29 of the Marriage Law of Mainland China 1980 provides that children of a marriage remain the joint responsibility of the parents who “have the right and duty to bring up and educate their children”. Both remain responsible for the child’s living and educational expenses. In principle, children who are being breast-fed by the mother should go to her custody. However, when the child has been weaned, the People’s Court will determine a dispute “in accordance with the rights and interests of the child and the actual conditions of both parents.”.
Supreme Court guidelines
11.3In 1993 the Supreme Court issued binding guidelines on how to apply the Marriage Law 1980. Generally children under two years shall go to the mother’s custody unless the father and mother agreed otherwise and the healthy growth of the child is not adversely affected (for example, financial or health difficulty of the mother or she commit a crime or an abuse). If the child is over two years old then both parents are entitled to custody. The court shall employ a balancing test in which priority is given to the parent who is better able to take care of the child. The court will look at who has looked after the child before divorce, and who is better financially to bring up child. The child’s relationship with one parent may be taken into account sometimes. The opinion of a minor above the age of 10 years will be taken into account. If the situation changes the parties can ask the court to make a new decision. The needs and interests of the children, the financial capacities and parent’s agreement will be key factors.
11.4Fifty per cent of all cases at all levels of the People’s Court relate to family law matters. There has been a yearly increase of 8.75% in family cases since
1127 Notes taken at a Family Law Association Lecture on “Family Law in China” by Zhang Xian Chu, Lecturer at the Department of Law, City University of Hong Kong, former judge from Mainland China.
1128 The material on Mainland China and Japan was substantially taken from an unpublished dissertation by Paula Scully, Obstacles to Referral, Planning and Implementation of Family Mediation as a Dispute Resolution Process in Hong Kong; Reflections based on Foreign Systems, April 1996.