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The Difference Between Japanese and Chinese Marriage Law
◇by lawyer He liying & Jia mingjun
The official figure from Shanghai statistic bureau indicates that the ratio of Japanese who are working or living in Shanghai, has taken almost one-third proportion of all the foreigners in Shanghai. The most direct reaction of this figure is that the number of residents who marry or divorce with Japanese in China or Japan is on the rise. To accompany with the close communication of marriage between China and Japan, and in order to protect our own rights and interests, the majority of Chinese should have a basic idea of Japanese marriage law.
Although Chinese Law and Japanese law both belong to continental law system, the differences of cultures and history have caused the differentia on Marriage and Family law in both countries.
Ⅰ、The differences on legal systems
1、The legal system of Chinese marriage law
Basically speaking, Chinese law is statutory law. At present, the legislation in effect adjusting marriage relationship in China include “Marriage Law of the People’s Republic of China”, amended by National People’s Congress on 28th Apr., 2001, and the judicial interpretation by the supreme court to supplement “Marriage Law of the People’s Republic of China” (First)、（Second）. These law and judicial interpretations are mainly referred to and relied on by the courts when handling with marriage cases.
2、The legal system of Japanese marriage law
Japan is one of the minor countries owning civil code in the world. The contract marriage、the rights and duties and the divorce are regulated in the fourth chapter named Family. As it were, the second chapter is the same as the Chinese Marriage Law. The following discussion will focus on this chapter as well.
Ⅱ、The differences on requirements of the marriage contract
1、Japan
(1)、Qualification requirement
The article 731 of Japanese Civil Law regulates that no marriage shall be contracted before a man has reached full age of 18 and a woman has reached full age of 20. Since the audit should be over 20 in Japan, the young people must have the approval of their parents before contract marriage.
Moreover, Japanese marriage law prohibits a woman to get married when she gets divorced or within 6 months of the dissolution of the last marriage contract. However, under the condition that a woman is pregnant before divorce or the dissolution of the last marriage contract, she can get married with somebody after the birth of a child. The lineal relatives by blood or collateral relative by blood up to the third degree of kinship、lineal affinity are the object of forbidden marriage.
(2)、Format requirement
The marriage will not have effect unless it is declared in Japan. The couple and more than two audit witnesses should join this declaration, and the procedures will be taken down by verbalism or onymous written format. The place of declaration could be chosen among the ancestral home or locus of any spouse.
2、China
(1)、Qualification requirement
Compared with Japanese marriage law, the legal age for marriage regulated in Chinese marriage law is different from that in Japan. In China, the legal age for marriage of male shall be no later than the full age of 22, and the female is no later than 20. We advocate the marriage freedom, and a legal marriage will not be interfered. In the aspect of the requirements of forbidden marriage, the law does not allow the people having serious infectious diseases, especially which may infect the next generation, to get married. Moreover, the marriage between the lineal descent, or collateral relative by blood up to the third degree of kinship is also abandoned.
(2)、Format requirement
The two parties should register in marriage registration organization in person, or the marriage will be illegal.
Ⅲ、Void and dissolved marriage
Same as in Japan, void marriage and dissolved marriage exist in Chinese marriage law, while the scope of void marriage and dissolved marriage is different, such as the numbers of void marriage in Chinese marriage law belongs to dissolved marriage in Japan. The vital difference between void marriage and dissolved marriage is that void marriage is retroactive when dissolved marriage is not.
1、 Japan
(1)、Void marriage
The marriage will be void under these two circumstances in Japan:
a、 The parties have not declaration of will to marry because of mistaken identity or other reasons;
b、 The parties did not declare the marriage
Chinese marriage law does not refer to the first circumstance; and the second is equivalent to the lack of marriage registration in China when it is regarded as live-in relationship.
(2)、Dissolved marriage
The marriage is dissolved if any one of the following requirements is satisfied:
a、 One of the married parties has not reached the legal age for marriage;
b、 Either of the married parties commits bigamy;
c、 Violate the regulation for the period of awaiting re-marriage (the female can’t get married unless she experiences 6 months after divorced or the last marriage was discharged);
d、 There is the prohibited degree of kinship between the married parties;
e、 Violate the regulation on the prohibited adoptive relation to marry;
f、 The marriage by fraud or coercion.
With regard to these circumstances, in China, the majority is void marriage, and there’s no regulation on “c” and “f”, which is dissolved marriage as well.
The dissolved marriage in Japan may result in the following legal consequences: If no body predicts that dissolved reasons exist when getting married, anybody, who receives the properties under the marriage, should return the interest within the limits. Or, he should return all the properties, and bear the liability for damages if the counterparty is in goodwill.
2、 China
(1)、Void marriage
According to the article 10 of “Marriage Law of the People’s Republic of China”, the void marriage exists if any one of the following requirements is satisfied:
a、 Either of the married parties commits bigamy;
b、 There exists prohibited degree of kinship between the married parties;
c、 Before marriage, either of the parties is suffering from a disease which is regarded by medical science as rending a person unfit for marriage, or the disease has not yet been cured after marriage;
d、 One of the married parties has not reached the legal age for marriage.
(2)、Dissolved marriage
According to the article 11 of “Marriage Law of the People’s Republic of China”, where marriage is contracted by coercion, the coerced party may appeal to the marriage registration office or the People’s Court for annulment of such marriage. Such an appeal for annulment of marriage made by the coerced party shall be submitted within one year from the date of marriage registration. Where the party concerned whose personal freedom is illegally restrained, such an appeal for annulment of marriage shall be submitted within one year from the date of the restoration of the personal freedom.
ⅳ、The differences on the proceedings and requirements of divorce
1、 The divorce proceedings and requirements regulated in Japanese Marriage Law
Same as Chinese Marriage Law, Japanese Marriage Law allows divorce by means of agreement and judicial divorce.
(1)、Divorce proceedings
a、 Divorce by agreement
Similar to that in China, divorce by agreement needs both parties and more than two adult witnesses, and should be suggested by verbal or written form. The applying proceeding of divorce is consistent with that of applying marriage.
b、 Judicial divorce
If one party has a legal reason, he or she can start divorce proceedings. The judicial divorce proceedings in Japan include mediation、trial and judgment.
i、Divorce by mediation
One party desiring a divorce should apply mediation to the family court. If one party appeals directly to a People’s Court to start divorce proceedings, the court transfers to the family court to carry out mediation by judgment, or faculties and functions. During the divorce mediation, if the parties desire the divorce and the mediation is considered to be legal and written down in the conciliation statement by mediation commitment, the mediation divorce is valid, same as the judgment.
ii、Divorce by trial
In case of the failure to divorce by mediation, if the family court deems that it is necessary to take the suggestions from the mediation board, for the interests of the parties, judicial divorce will start according to faculties and functions if it does not betray to the any party meanings. At that time, only if the parties agree to divorce but can’t make the agreement on the proportion or other problems, the judicial divorce will proceed. If the mediation board makes a reasonable plan to resolve the dispute but the parties refuse to accept, the family court could take compulsive means. But if the parties do not desire the judgment from the family court, they could bring the demurral without any reason within two weeks and ignore the judgment from the family court.
iii、Judgment divorce
If the parties fail to get divorced by mediation and have not started the trial divorce, or they bring demurral to ignore the judgment through the trial divorce, they could appeal to the court of common pleas to start a divorce action. This action proceeds according to the procedural trial. During the lawsuit, the divorce problems、the claims for solatium related to the divorce、partition and child care will be settled altogether. If any one of the parties is dissatisfied with the judgment, they could bring an appeal.
The trial divorce is not always based on proceedings. The trial divorce that is not restricted by the legal divorce requirements regulated in the Japanese Civil Code is different from the judicial divorce. Since it is not founded on the contentment of the parties, it takes intermediate character, and is closer to the judicial divorce.
2)、Divorce requirements
During the divorce lawsuit in Japan, the reasons for legal dissolution of marriage are satisfied if:
i、One party commits unfaithfulness. It means that either of the parties has sexual unfaithfulness. The conception is wider than adultery.
ii、Malicious abandon by the spouse. It means that either of the parties give up duty of living、cooperation and support. The standard for judging is whether either of the parties is dissatisfied with the family life of mutual support.
iii、The circumstance has been lasting for 3 years whether either of the parties is still survival. Without reference to the reasons, the 3 years period starts from his or her awareness of the information.
iv、Either of the parties has the serious mental illness and is hopeless to be cured. Acritical mental illness alone will not cause divorce. The standard to distinguish is the doctor’s text material and to judge from the point of legal view.
v、Other major causes that can’t maintain the family relationship. The courts will decide what the major causes are. Generally speaking, the courts will refer to the harmonize extent and economic position of the parties and the court will permit divorce if they deem that the family relationship no longer could be maintained or exists.
Although the above-mentioned cases exist, the court will reject the claims of plaintiff from the manifold consideration on whether it is adequate to maintain the marriage relationship.
2、 The divorce proceedings and requirements regulated in Chinese Marriage Law
In Chinese Marriage Law, there are two methods to the dissolution of marriage: divorce by agreement and judicial divorce by one party. Both husband and wife who desiring the divorce shall apply for divorce registration to the place where the Chinese citizen has his/her residence registration. The other way is that when one party does not agree to get divorced, he could remove the marriage through appealing to the People’s court by the judgment. If the party commits these circumstances that are prohibited in the article 46, divorce shall be granted if mediation fails:
i、 bigamy or one party who has a spouse cohabits with another person of the opposite sex;
ii、family violence is committed, or a family member is maltreated or abandoned;
iii、where both parties has separated from each other for two full years for lack of mutual affection;
iV、other cases which lead to the shattering of affection between husband and wife.
Where one party is declared to be missing and other party starts divorce proceedings, divorce shall be granted.
Normally, the first judgment from the People’s court disagrees with the divorce except under those cases. But except that any one can prove mutual affection no longer exists. But if one party takes a divorce action after the first judgment becomes effective within 6 months, the probability to get the support from the people’s court will increase. Thus, compared to American Family Law, Chinese divorce proceeding seems easier and embodies the combination of principle and flexibility.
ⅴ、The properties division after divorce
1、The properties division regulated in Japanese Marriage Law
1)、The parties could negotiate to determine whether the properties need division, and the methods and the sum of the division properties.
2)、If the parties fail to reach a negotiation, one party could apply to family judgment bureau to deal. The family judgment bureau will consider the sum of the properties jointly owned by the husband and wife, and other circumstances that whether to divide and the sum and methods of division. Other circumstances include:
i、The period of family life;
ii、The asset of the family;
iii、The marriage status、the occupation、mutual support;
iv、Whether one party loses the income because of the resignation after marriage;
v、Properties obtained from gift during the period of marriage;
vi、One party commits unfaithfulness or other reasons.
When the family court is dealing with these cases, if the divorce caused by the counterparty’s illegal behavior, it is best to consider the support payments when they calculate the sum of partitioning.
2、The properties division regulated in Chinese Marriage Law
According to the article of《Marriage Law of the People’s Republic of China》 and some related judicial interpretations by the supreme court, the properties jointly owned by the husband and wife shall be distributed equally in principle.
ⅵ、The maintenance system after divorce
1、Japanese maintenance regulation
1)、The requirements to acquire the costs of maintenance
a、The properties jointly owned by the husband and wife and the compensation have been calculated, however, one party still in the difficulty of life;
b、The permission for the properties of the spouse.
2)、The cost of maintenance
The people’s court will consider all factors when they calculate the costs of maintenance. The detailed time of these factors is that the ending of the final oral argument or successful mediation during the trial proceeding, and the main factors are “difficulty and solvency”.
3)、The payment methods of the costs of maintenance
a、The one-off payable corpus;
b、The payable corpus by installment;
c、The payment by fixed date;
d、Deliver the goods.
Normally, the first two methods are taken in the legal practice.
2、The regulation on the spouse maintenance after divorce under Chinese Marriage Law
According to “Marriage Law of the People’s Republic of China”, economic supports include two ways. The first is economic compensation regulated in the article 40. Article 40 reads:“Where the husband and the wife agree in writing that the property acquired by them during the period in which they are under contract of marriage is in their separate possession, if one party has performed more duties in respect of bringing up the child, taking care of the old and assisting the other party in work, it shall, at the time of divorce, have the right to request the other party to make compensation for the above, and the other party shall do so accordingly.”; The second is economic assistance regulated in the article 42. Article 42 reads:“If, at the time of divorce, one party has difficulty in supporting himself or herself, the other party shall render appropriate assistance with his or her own property such as his or her residential house. Specific arrangements shall be made by both parties through consultation. If they fail to reach an agreement, the People’s Court shall make a judgment.” Obviously, the economic assistance is different from the maintenance. Thus, Chinese Marriage Law does not prescribe the conception of the spouse maintenance after divorce that is easy to place women at a disadvantage.
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卷首法语
