13 May 2021
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From 1 January 2021, couples in Mainland China are now required to go through a 30-day “cooling off” period before they can commence a divorce.
This new law was introduced as a response to the surging divorce rates in China. In 2003 the divorce laws in China were relaxed, allowing couples to divorce without resorting to litigation. According to the Ministry of Civil Affairs, 4.5 million couples across China registered for a divorce in 2018. The figure in 2019 was only slightly lower at 4.15 million.
In this article we will discuss what the 30-day cooling off period means, and whether this would ever be feasible in Hong Kong.
Think again: For couples eager to call it quits in China
There are two routes to securing a divorce in China – either by agreement or by litigation through the Courts.
Prior to 1 January 2021, divorce by agreement provided a convenient fast-track route for couples looking to go their separate ways. Parties simply attended the marriage registration office to have their divorce registered immediately, usually within half an hour. The divorce procedure was purely administrative, so long as the couple agreed to a divorce, and had sorted out their financial affairs, and matters relating to any children.
The view began to be taken that this simple procedure encouraged “impulse divorces”, especially among young couples who would have an argument one night, and be divorced by lunchtime the next day (often regretting it later on that afternoon). As a result, the 30-day cooling off period was proposed to deter rash decision-making. The aim was to try to encourage those in a fit of anger to calm down and give a second thought to their marriage by placing hurdles in the way of what was otherwise a very quick divorce process.
The principles set down in the new law are as follows:
• Either party can withdraw the divorce application during the 30-day cooling off period, during which time the divorce will not be finalised. If they withdraw, the application becomes invalid. If both parties later decide to proceed with a divorce, they will have to go through the whole process again and wait for another 30 days.
• After the expiry of the 30-day cooling off period, either party will need to apply to the marriage registration authority for a divorce certificate to be issued within 30 days. If either party fails to do so, the divorce application will be treated as automatically withdrawn.
The new rules have attracted mixed reactions. Proponents have called the new policy a “welcomed measure”, deterring hasty marriages and divorces and strengthening family stability.
Critics have voiced concerns that the new policy undermines the freedom to divorce and disregards victims of domestic violence. However, the 30-day cooling period only applies to divorce by agreement, which is rare for couples with a history of domestic violence, where litigation often ensues.
In many jurisdictions, there are “cooling-off” periods before a marriage or divorce, or other hurdles put in place. This is to avoid “spur of the moment” decisions.
In Hong Kong, parties must give notice of their intended marriage to the Registrar of Marriages at least 15 days before the wedding day.
To commence divorce proceedings in Hong Kong, couples must have been married for at least 1 year, except in cases of exceptional hardship or depravity.
Divorcing couples must also prove that their marriage has irretrievably broken down by showing one of five facts, which are adultery, unreasonable behaviour, 1 year separation with consent, 2 years separation without consent, or desertion. Although joint applications can be made, this requires at least a 1 year separation. Hong Kong divorce law works on the basis of ‘fault’ – where allegations need to be made against the other party (although mild particulars are often used).
The Court will only grant a conditional order for divorce (known as the Decree Nisi) if it is satisfied that the marriage has irretrievably broken down. Divorcing couples will then have to wait for at least another 6 weeks before they can apply for their divorce to be finalised (known as a Decree Absolute). This effectively a ‘cooling-off period’, but it is put in place at the end of the process, rather than at the start.
The position is similar in Australia, Canada and United Kingdom where parties are required to give notice of their intended marriage 1 month before the wedding, and they must be married for at least 1 year before being able to commence a divorce (2 years in the case of Australia).
In the case of international couples, a country imposing a cooling off period may be of concern where one seeks to have the benefit of commencing a divorce in what they perceive to be a more favourable jurisdiction, and being able to progress that divorce expeditiously. ‘Forum shopping’ as it is otherwise known, may no longer be as easy if such laws are put in place.
What if you do not want to wait
Even if couples cannot secure a divorce in Hong Kong in under 1 year of marriage, many seeking to separate within the year will choose to enter into what is known as a deed of separation, setting out in advance how they will deal with their finances (and children).
Once the marriage has lasted 1 year, either party can commence a divorce and convert the terms agreed in the deed of separation into a consent summons. That means couples can get on with the practicalities of a separation, albeit not formally divorce right away.
Conclusion
The 30-day cooling off period in China is still at its very early stages and is yet to be tried and tested. However, for many jurisdictions, cooling off periods in the context of marriage and divorce are nothing new.
For all, divorce is a serious decision that requires careful consideration and is not to be taken lightly. Perhaps hitting the pause button is just what some couples need.
For further information, please contact:
Vanessa Duff (Mitchell), Senior Associate, Withersworldwide
vanessa.mitchell@withersworldwide.com
