The Civil Code of the People’s Republic of China will come into force on January 1, 2021. General Secretary Xi Jinping said: “Families are the basic cells of society.” What are the new provisions in the Chapter of Marriage and Family of the Civil Code which affects millions of ordinary people? What impact will these regulations have on the marriage and families of ordinary people? This paper gives an interpretation of the new regulations that are closely related to our daily lives.

I. Addition of the obligation to inform of major diseases. If one party fails to truthfully inform of such disease prior to marriage registration, the other party request the cancellation of the marriage.

Article 1053 of the Civil Code stipulates: “If one of the parties suffers from a serious disease, he shall truthfully inform the other party of such disease prior to marriage registration; where such information is not truthfully provided, the other party may apply to the people’s court to annul the marriage. The application to annul a marriage shall be made within one year from the date when the party knows or should have known of the cause for the annulment.

With the cancellation of the compulsory marriage examination, the law no longer mandates that both men and women should undergo marriage examinations before marriage. Article 7 of the Marriage Law stipulates: “Marriage is prohibited if the man or the woman is suffering from any disease, which is regarded by medical science as rendering a person unfit for marriage.” Article 10 stipulates: “Marriage shall be invalid if, before marriage, one party is suffering from a disease which is regarded by medical science as rendering a person unfit for marriage and, after marriage, a cure is not effected” However, the Marriage Law does not list which diseases are regarded by medical science as rendering a person unfit for marriage, but only makes principled provisions. According to relevant laws, judicial interpretations, and judicial practices, diseases that rendering a person unfit for marriage generally include serious genetic diseases, designated infectious diseases such as AIDS and syphilis, severe mental illnesses such as schizophrenia, and physiological defects that cannot have sex. However, with the development of medicine, some diseases that were originally considered rendering a person unfit for marriage may be cured, and at the same time, there are also some new diseases that render a person unfit for marriage. Furthermore, with social progress, people’s thinking is more diversified. Many people believe that illness should not be a reason to prevent a lover from getting married, but at the same time, after marriage, many spouses request a divorce after finding that the other party has a major illness before marriage. Therefore, this revision of the Civil Code conforms to the needs of the times and social development, and no longer prohibits the marriage of persons with major diseases. Instead, it stipulates that such marriage is revocable, which allows parties concerned to determine the validity of marriage.

After the implementation of this provision, if one party requests the court to annul the marriage on the grounds of this provision, since the marriage is not legally binding from the beginning, the two parties do not have the rights and obligations of husband and wife. After the marriage is revoked, if there is no previous marriage, the marriage status is still unmarried.

II. The addition of the definition of community property

Article 1064 of the Civil Code stipulates: “Debts incurred according to the common expression of intent of both spouses, such as a debt jointly signed by both spouses and a debt signed by one spouse and subsequently ratified by the other spouse, and debts incurred by one of the spouses in his own name during the marriage to meet the daily needs of the family, constitute community debts. A debt incurred by one of the spouses in his own name during the marriage in excess of the daily needs of the family is not a community debt, unless the creditor may prove that such debt is used for both spouses’ daily life or for joint production and operation of the spouses, or such debt incurs according to the common expression of intent of both spouses”.

In view of this, here is an example: Mr. Zhang and Ms. Xu registered for marriage in October 2007; since 2010, the couple began to live separately due to emotional discord; in August 2016, the two divorced. In January 2016, Mr. Zhang borrowed 2 million yuan from Mr. Ma. Because Mr. Zhang delayed in returning the loan, Mr. Ma filed a lawsuit in the people’s Court against Mr. Zhang and Ms. Xu. Ms. Xu believed that she was not aware of Mr. Zhang’s borrowing, and the money borrowed by Mr. Zhang had not been used for the daily needs of family. She believed that she should not be jointly responsible for the repayment of the debt. However, to Ms. Xu’s disappointment, the people’s court held that the loan was a joint debt after a trial. Therefore, even though Mr. Zhang and Ms. Xu had divorced, Ms. Xu still had to bear a debt of 2 million. For Ms. Xu, the law seemed too unfair.

In January 2018, the Supreme People’s Court issued the Interpretation on Issues Related to the Applicable Law in the Trial of Cases Involving Husband-and-Wife Common Debts, which defines the husband-and-wife common debts. After the interpretation was issued, in the above-mentioned case, only Mr. Ma proves that the loan was used for the daily needs of family, joint production and operation and that Ms. Xu also agreed to the loan, should Ms. Xu bear the joint repayment responsibility. Now the definition of husband-and-wife common debts has been officially written into the Civil Code, which plays a very important role in equally protecting the legal rights and interests of both husband and wife and building a harmonious family relationship.

III. The addition of two circumstances for partition of community property during the existence of marriage

This time, the chapter of Marriage and Families of the Civil Code adds two circumstances where one of the spouses may apply to the people’s court for partition of their community property during the marriage: (1) the other spouse has concealed, transferred, sold, destructed or damaged, or squandered the community property, created a false community debt, or committed other acts that seriously infringe upon the interests of the community property; (2) a person, whom one of the spouses has a statutory obligation to support, is suffering from a serious disease and needs medical treatment, but the other spouse does not agree to pay the relevant medical expenses

This time, the Civil Code deletes the exception that “no harm should be caused to the interests of creditors” in the previous judicial interpretation of the Marriage Law, but stipulates that as long as there is a statutory “material circumstance”, the partition of the community property can be requested. This provision not only protects the original community system, but also avoids the husband or wife from being unable to defend their rights and interests in the event of a “material circumstance” because of being “bound” by the community property system. Of course, it is worth noticing that although the judge no longer considers whether the partition of community property will infringe on the interests of creditors in application of this regulation, if the husband and wife jointly make the borrowing, they still need to bear the joint repayment responsibility for the debt even if the community property in marriage has been partitioned.

IV. Addition of regulations on the cooling-off period for divorce

Article 1077 of the Civil Code stipulates: Where either party is unwilling to divorce, he may withdraw the divorce registration application within thirty days after such an application is received by the marriage registration authority. Within thirty days after expiration of the period provided in the preceding paragraph, both parties shall personally visit the marriage registration authority to apply for issuance of a divorce certificate, and failing to do so will cause the divorce registration application to be deemed as withdrawn.”

Both marriage and divorce should be the result of careful consideration. But nowadays, we have witnessed a large number of “flash marriages and flash divorces”, hasty divorces and impulsive divorces. To this end, in order to promote the stability of the family and the society, the Civil Code has introduced a “cooling-off period for divorce” to give both spouses sufficient time of consideration, so as to avoid impulsive divorce and hasty divorce.

Regarding the provisions of the Civil Code on the cooling-off period for divorce, a few points are worth to be noticed: 1. The “cooling-off period for divorce” only apply to divorce by agreement between the husband and the wife. If the divorce is applied by litigation, a “cooling-off period” is not required. If the court decides to agree to the divorce, the divorce will take effect after the judgment takes effect. 2. If the husband and wife agree to divorce, according to the provisions of the “divorce cooling-off period”, the maximum cooling-off period is 60 days. Where, 30 days is the “cooling-off period” after an application for divorce is made with the Civil Affairs Bureau. During this cooling-off period, if either husband or wife does not want to divorce, they can withdraw the application for divorce. After the application for divorce is withdrawn, it is no longer effective. 3. After the aforementioned 30-day cooling-off period ends, both spouses are still given 30 days before receiving the certificate of divorce. During this 30-day period, both spouses are required to apply for a divorce certificate at the marriage registration center. If either husband or wife does not want to divorce, they may not apply to the marriage registration authority for the issuance of a divorce certificate. If they have not made such application, the previous divorce application will not take effect. It can be seen that if the husband and wife agree to divorce, the 60-day cooling-off period gives the spouses sufficient time to think about whether they really want to divorce, which can effectively avoid impulsive and hasty divorces.

V. Addition of regulations on confirming or challenging maternity or paternity

Article 1073 of the Civil Code stipulates: “Where a parent challenges maternity or paternity with just cause, the parent may file a lawsuit with the people's court for affirmation or denial of such maternity or paternity. Where an adult child challenges maternity or paternity with just cause, he may file a lawsuit with the people’s court for affirmation of such maternity or paternity.”

Regarding this provision, here is an example: Mr. Zhao and Ms. Qian were college classmates. They fell in love during college and got married after graduation. But after marriage, the contradictions between Ms. Qian and her mother-in-law were very sharp, and couples often quarreled. During a quarrel, Ms. Qian blurted out and said, “I had love affairs, and my son is not yours.” These words caused great doubt of Mr. Zhao and his mother. After this quarrel, Ms. Qian took her son back to her mother’s house and ignored Mr. Zhao’s request for a paternity test. In the end, until the two parties agreed to divorce, the paternity of their son was still in doubt. After the divorce, Mr. Zhao never saw his son again, but the registered father was Mr. Zhao in the divorce agreement and related archives.

More than ten years later, Mr. Zhao got married again and had another child, but whenever he thought of the previous marriage and the son whose paternity was not confirmed, he just felt uncomfortable. Now, Article 1073 of the Civil Code provides a solution to Mr. Zhao. Mr. Zhao can file a lawsuit in the people’s court to challenge the paternity, and require Ms. Qian to cooperate with the paternity test. If the paternity between the son and Mr. Zhao is ruled out, then based on the judgment denying the paternity, there will be no rights or obligations between the son and Mr. Zhao, and the son will no longer be entitled to inherit Mr. Zhao’s estate.

Readers may have a question. Some couples adopted a child because they were unable to have children and raised them carefully. However, out of various concerns, they did not tell the truth about the adoption. After the child grew up and found that he was adopted, can he also file a lawsuit to challenge the paternity? The Civil Code takes this issue into account. An adult child may file a lawsuit with the people’s court for affirmation of such maternity or paternity, but cannot deny the maternity or paternity, which avoids the circumstance where adult adopted children use the law to evade the duty to support his parents.

VI. Expansion of the scope of adoptees from “minors under the age of 14” to “minors”

Article 1093 of the Civil Code stipulates: “The following minors may be adopted: (1) an orphan bereaved of parents; (2) a minor whose natural parents cannot be traced; or (3) a minor whose natural parents are incapable of raising him due to unusual difficulties.”

The expansion of the scope of adoptees from 14 to 18 years old will solve many social and family problems. For a minor who has reached the age of 14, if he is without parents or if his biological parents lose the ability to support him, he will easily get trapped in life since he can neither work nor be legally adopted.

Xiao Ding, a friend of the author, was born in a rural area in Anhui. When she was in the second grade of junior high school, her family had no money to support her study. A couple from Shanghai used to live next door to her house during the campaign of re-education of city people, and kept in touch with her family after return to Shanghai. The couple had no children and had always liked the simple and kind Xiao Ding very much. After hearing that Xiao Ding had no money to study, they decided to adopt her. However, after consulting with the civil affairs department, the two parties found that according to the Adoption Law, Xiao Ding was over 14 years old and did not meet the conditions for adoption. Considering that they could not legally adopt her and apply for registration in Shanghai, and that she could not study and work in Shanghai, the couple had to give up their plan to adopt Xiao Ding.

Later, Xiao Ding, who had gone through ups and downs, became a beautician. More than 20 years later, when talking about this story, she was still full of melancholy. She missed such an opportunity. As a grain of ash from the times could be a mountain on an individual, a legal provision can matter one’s destiny. Therefore, the promulgation of the civil Code is closely related to the lives of each of us.

It can be seen from the above interpretations and cases that, there are significant differences between the new law and the old law: the new Civil Code is problem-oriented, actively responds to hot social demands, satisfies the needs of the people in the new era under the rule of law, and protects people’s civil rights in all directions. Therefore, this Civil Code has condensed the greatest consensus on the rules of social life, and deeply instilled the core socialist values in the people through the enhancement of rule of law. It not only carries the Chinese characteristics, but also demonstrates a rich spirit of the times. Let us joint look forward to the official implementation of the Civil Code.