In the practice of dealing with foreign marriage cases, the marriage
lawyer shall get a general idea and master the American Marriage and
Family Law as the arising of the divorce cases concerning American.
During my practice in dealing with foreign marriage cases, I have
get knowledge of some American marriage and Family Law. If I compare
the American with Chinese Marriage Law and show the difference to
the readers, it will help them to control the difference between these
two laws so that I can offer better service to the client by using
such intellectual when doing cases. The same and difference of marriage
conclusion essential
A The terms of American Marriage Law
1、the requirements of marriage contract. Many states’ American marriage
Law set out when registering a marriage in American, both parties
shall be over 18 years old; those who have reached 16 but not the
age of 18 shall get the admission of their parents or judge.
2、the requirement of registration. In American, The marriage shall
consist of registration and holding a marriage ceremony. “the uniform
Marriage and Divorce Act” Article 201 prescribes, the marriage between
a man and a women will be effective after being approved, registered
and held the marriage ceremony. Many States require those who want
to get marry holding the marriage ceremony in front of pastor, judge
or government officials. In Article 206 of “the uniform Marriage and
Divorce Act”，the court and the authorized government officials can
host the marriage ceremony and it also can be hold as a religion ceremony.
Differ from Chinese law, the marriage certifications in different
states have different useful-life which ranks from 30 days to 60 days.
Both parties should hold the marriage ceremony during this period
otherwise they will register the marriage again. There are 3 to 5
days before the court or government issues the certification after
both parties application.
B. the stated term of Chinese law
1. The requirement of marriage contract
The Chinese Marriage Law regulates that no marriage may be contracted
before the man has reached 22 years of age and the woman 20 years
of age. This is later than American. In China, the Marriage system
based on the free choice of partners and the legality marriage is
not be intervened. No marriage may be contracted under any of the
following circumstances:(1) if the man and the woman are lineal relatives
by blood, or collateral relatives by blood up to the third degree
of kinship; and (2) if the man or the woman is suffering from any
disease, which is regarded by medical science as rendering a person
unfit for marriage.
2. The Requirements of Registration. The male and female must go
to the registry office by themselves or they are not legality spouse.
After they registered, they are spouse and no announcement period
is required.
The same and the difference of void marriage
A. The void marriage in American Marriage Law
The void marriage in the American Marriage Law system means the
parties in the marriage are lack of the legal ability or will to
marry, or other serious marriage obstacle. The main kinds of void
marriage are as follows:
1. Both parties in the marriage are forbidden to marry by law.
According to many states’ laws, no man can marry the woman who is
lineal relative by blood, or collateral relatives by blood up to
a scope with him, otherwise their marriage is void. For example,
it prescribes in Massachusetts law that no man can marry his mother,
grandmother, daughter, granddaughter, sister, stepmother, grand-stepmother,
grandson’s wife, mother-in-law, grandma-in-law, wife’s daughter,
wife’s granddaughter, brother’s daughter, sister’s daughter, father’s
sister, mother’s sister.
2. Either party is not reach the legally marriageable age. It
may cause the marriage to be void if one party is not reach 18 years
old when holding the marriage ceremony. Those who do not reach the
legally marriageable age shall get the approval of their parents
or judge before marriage registration.
3. Bigamy. Many countries around the world don’t accept bigamy
except the Africa and one or two Muslim countries.
4. Falsity. Falsity marriage means the marriage is based on a
certain intention or aim. This situation mostly happens in the immigrant
areas. Many citizens outside America emigrate to USA by marry an
American citizen. To solve this problem, the American Immigration
Law rules that those outside America persons who want to get the
green card basing on the marriage shall have to stay in America
for more than two years.
B. the void marriage in Chinese Marriage Law
According to article 10 in Chinese Marriage Law, Marriage shall
be invalid under any of the following circumstances:
(1) if one party commits bigamy;
(2) if the man and the woman are relatives by blood up to the
third degree of kinship;
(3) 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; and
(4) if the legally marriageable age is not attained.
The same and the difference in the marriage dissolution
A. the marriage dissolution in America
1. Mental and Physical distemperedness. Mental distemperedness
means one party can’t understand the character, right and the obligation
of marriage with his or her mind when he or she marries. Physical
disttemperedness mainly means one party is sexual disturbance and
the other party doesn’t know this situation when marry him.
2. Marriage under coercion. One party agree to marry the other
because the coercion. One party compel the other party to marry
him by using force measures or both parties get married under the
third party’s threat or enticement.
B. the marriage dissolution in China
According to Article 11 of the Chinese Marriage Law, in the case
of a marriage made under coercion, the coerced party may make a
request to the marriage registration office or the people's court
for the dissolution of the marriage contract. Such a request shall
be made within one year as of the marriage registration date. The
party concerned whose personal freedom is curbed illegitimately
shall make a request for dissolution of the marriage contract within
one year as of the date on which his or her personal freedom is
restored. The party can only request the dissolution of the marriage
under coercion. One party is sex incapacity or refuse sex life do
not become to be the legal excuse to the dissolution of the marriage
though such matters can be the reference gist to cognize mutual
affection no long exists.
The difference and the same in the divorce condition
and procedure
A. the divorce condition and procedure in America
In America, the court is the only place to deal with the divorce.
People can’t get the divorce registration in the marriage register
office which differs from China. The court shall make the judgment
although both parties desire divorce. The reasons for divorce are
in fault or no fault. All the states in American are using the principle
of no fault divorce and the divorce will be granted because mutual
affection no long exists, which is the same as China.
1．Court of jurisdiction. The divorce case shall be heard in one
party’s place. One party has the right to send the divorce to the
court after living in one state for a certain time in many states.
Different state has different requirement of the certain time and
the longest is one year, such as Washington, New Jersey, New York;
the shortest is no time, such as South Dakota. Most states require
the person living in this state for 6 months, such as Mississippi,
Hawaii; Some shorter requirements range from 60 days to 6 weeks,
90 days, such as Idaho is 6 weeks and Illinois is 90 days.
2. The procedure of divorce. The plaintiff of the divorce case
shall pay the litigation fee. In the procedure of the divorce litigation,
one party can ask the court to issue an injunction which can forbid
either party transferring, mortgaging, concealing the couple’s joint
property and annoying, harming the other party or children. The
court can ask one party move out from the place they live in together
temporarily if danger exists. Some states require mediation in the
divorce case. It differs from the Chinese court that the American
Courts only use the mediation in the divorce case without any fault.
The mediation will be used when dealing with the custody and visit
of the children.
3. Reason for the fault. The faults mainly consist of adultery,
abuse and abandon. Adultery is the familiar fault reason. Just the
same as the adjudgement practice in China, it is also very difficult
to get the evidence of adultery in America. Some judge in America
will adopt the putative method to determine whether one party has
sex behavior outside marriage. If there are evidences show one party
in the marriage checks in a room with others or stays with others
in one room, the judge may make a consequence by a general person’s
thinking except the person under suspicion can give the counterevidence.
4. Separation system. There are separation regulations in many
states of America. After the couple doesn’t stay with each other
for a certain time because they have the desire to divorce, they
can divorce. Some states require the separate time being 6 months
and some states require 5 years. Most states require 1 to 3 years.
According to the Uniform Marriage and Divorce Act, either party
has the right to apply for divorce to the court after separating
180 days.
B. the divorce condition and procedure in China
There are two ways to release the marriage relationship in China:
divorce register and litigation. If both parties desire divorce,
they can apply to the marriage registration office in one’s Hukou
location for get it and they don’t need to go to the court. The
second way can be used at the time when one party wants to divorce
but the other one disagrees. When the court finds either party has
the circumstances in article 46, the Marriage Law of China, the
divorce shall be granted if mediation fails:
(1)bigamy or, cohabitation of a married person with any third
party;
(2)domestic violence or, maltreatment and desertion of one family
member by another;
(3)bad habits of gamble or drug addiction which remain incorrigible
despite repeated admonition;
(4)separation caused by incompatibility, which lasts two full
years; and
(5)any other circumstances causing alienation of mutual affection.
Divorce shall be granted if one party is declared to be missing
and the other party thereby files an action for divorce.
The Chinese courts usually refuse making the divorce judgment
at the first time of hearing the divorce case except the instance
above or the parties have the evidence to show their mutual affection
no long exists. If the parties sue to the court again after 6 months
from the date he/she got the judgment, there is more possibility
for the court to make a divorce judgment. Thus it can be seen the
procedure of the divorce in China is more simple, principle and
agility when compared with the marriage and family law of America.
The disposition of the property in the joint possession
A. the principle of the disposition of the property in
divorce of America
1．Implement the property agreement. All the states in America
allow both parties in the marriage make an agreement on the disposition
of the property. This agreement includes the allocation of the property,
the burden of the debts and the creditor’s rights. The divorce agreement
will be effective after the court approves it.
2. The scope and the allocation principle of the joint property.
According to the Uniform Marriage Property Act in 1983, the property
acquired by husband and wife during the period in which they are
under contract of marriage shall be joint property, both parties
have the benefit to half part of the property describing above.
The following asserts shall be the separate possession:
1) One party gained by presentation or was given especially when
the third person died.
2) Gained by exchange with one party’s personal property
3) Confirmed by judgment, assert agreement or other written agreement
4) Unearned increment of personal property
5) Payment for the damage of personal property
6) Payment for the damage of personal health
B. the principle of the disposition of the property in
divorce of China
According to article 39 of the Marriage Law and the related justice
explanations of the Supreme Court, the joint property gained by
both parties under the marriage shall be divided into two parts
and each party gains one part, which is the same as America. The
property gained by bequest or presentation shall be the joint property
except it is especially given to one party by will or presentation.
The maintenance to the spouse after divorce
A. The maintenance provisions after divorce in America
The maintenance to the spouse means one party gives help and
money to the other party after divorce and the division of the joint
property. It always paid by money or property. It can be paid by
either the man to the woman or the woman to the man.
1. The condition to get the maintenance after divorce
In the divorce, judicial separation or maintenance fee litigation,
according to article 308 of the Uniform Marriage and Divorce Act,
if one party cannot maintain his/her reasonable living needs by
his/her property and he/she can’t work because of bringing up children
or can’t meet the requirements although work after divorce, the
other party with payment ability shall give maintenance to this
party. The judge will consider the following factors:
1) The property status of the one is maintained;
2) The economy income ability status of the one is maintained;
3) The education or training needed for the one is maintained
to find a suitable occupation.
4) The living level of the marriage;
5) The length of the marriage;
6) The age, health and mental situation of the one is maintained
7) The ability of the one offering the maintenance
2. The amount of the maintenance fee. This amount will be considered
by the different factors. Generally speaking, this amount will depend
on the economic needing of the party being maintained and whether
he/she has a work, the property this party holds and the economic
situation of the party offering the maintenance, The living level
of the marriage and etc. Some states give a lowest line to the maintenance
fee, such as in Texas, the maintenance fee shall be no less than
$2500 per month or the 30% of the (&)income of the obligation
party. In many states’ cases, the standard is confirmed by the certain
circumstances.
B. The maintenance provisions after divorce in China
According to the Chinese Marriage Law, there are two ways to make
the payment to the other party: one is economic compensation, in
article 40, “According to a couple's written agreement, the items
of property acquired during their marriage are in the separate possession.
In this connection, if one party performs more duties in rearing
their children, looking after their elders and assisting the other
party in work, he or she shall have the right at the time of divorce
to request compensation from the other party who shall make the
compensation.” The other is economic help, in article 42 of the
Marriage Law, it says “If, at the time of divorce, one party has
difficulties supporting himself or herself, the other party shall
render appropriate help from her or his personal property such as
a dwelling house. Specific arrangements shall be made between both
parties through consultation. If they fail to reach an agreement,
the people's court shall make a judgment.” The meaning of the economic
help differs obviously from maintenance. It is obvious that there
is no regulation on the maintenance to the spouse after divorce
after divorce. This disadvantage will cause the puny party especially
the woman to be unfavorable.
Maintenance payment to the children after divorce
A. regulations on the maintenance payment to the children
in America
1. Both parties have no right to make agreement on the payment
of maintenance fee to the children.
In China, the court doesn’t oppose the person under the marriage
make the agreement on the amount of the maintenance fee to the children.
In America, the law prohibits such behavior or the agreement will
be invalidation because it infringes the children’s rights. According
to the Uniform Marriage and Divorce Act, such fee is determined
by the following aspects:
1) The economic source of the children;
2) The economic situation of the parents;
3) The living level of the children before divorce;
4) The bring up and education fee for the children;
5) The economic capacity of the parent without custody right
2. Certain proportion between maintenance fee and income
1） percentage
In such mode, the maintenance fee is confirmed and stable and
it doesn’t depend on the income of the obligation party
2) Income shares
The maintenance fee shall be decided by the total of the parents
income and it also determines the amount each party should pay.
B. regulations on the maintenance payment to the children
in China
It prescribes that the relationship between parents and children
shall not come to and end with the parents’ divorce in article 36
of the Chinese Marriage law and furthermore, parents shall take
the related amends responsibility to the civil obligation of the
children. The bringing up fee of the children shall be determined
by the local living level and it shall be 20-30 percentage of the
parents’ income. The Chinese court usually doesn’t write the amount
of the bring-up fee of the party fostering the children directly
in the judgment and it always appears to be the party who doesn’t
foster the children.
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