March 27, 2021
ONAccording to the law, a Chinese family court should be a safe haven for Wang Fumei (not her real name), a 36-year-old battered woman and mother of two. The security cameras were rolling in the store when her husband, a heavy drinking gamer, walked into the store where she worked in southern China and beat her without pity. The tape is now with the police. She gives Ms. Wang an opportunity to invoke a domestic violence law, which came into force in 2016, and allows judges to punish abusive partners.
If called as witnesses, the couple’s children would have little reason to defend their father. The 16-year-old son is a migrant worker – his father refused to pay for any professional training that could have helped the boy do a better job. The ten-year-old daughter is afraid to hear her father’s name. Though safe in her mother’s home village, she will not be able to start middle school this September unless her father hands over the family’s household registration book, or hukou, which is needed for enrollment. Even a screenshot would be enough, says the headmaster. Unfortunately, Ms. Wang’s mother-in-law said to her granddaughter on the phone: “Your schooling is none of our business.” On paper there are other reasons to trust the law. Ms. Wang’s low income should qualify her for government legal assistance. The country’s Supreme Court has repeatedly advised judges to give greater consideration to women’s equality.
In the real world, China’s family courts are places of danger for women like Ms. Wang. The details are set out in two books by Chinese-born law scholars. Between them, they conduct thousands of hours of interviews with judges, lawyers, and ordinary people from small towns who are trying to get divorced. Many of them are rural women whose views on marriage have been changed by moving to a big city. The first paper by He Xin of Hong Kong University, “Divorce in China: Institutional Restrictions and Gender Outcomes,” was published in January. The second, “Unbound Marriage: Divorce Disputes, Power, and Inequality in China Today,” was written by Li Ke of the John Jay College of Criminal Justice at the City University of New York. It should be published in 2022.
These studies show how sexism infiltrates the work of Chinese divorce courts like a poison in the ground or a miasm in the air. The trouble starts before a judge has even opened a file. Chinese judges earn promotions by handling cases quickly and avoiding complaints and complaints. (A typical family court judge can try 200 cases a year.) You are rewarded for urging plaintiffs to withdraw divorce suits and try again to mend their marriages. This is one way of responding to Chinese leaders’ fear of rising divorce rates. In 2019, 4.15 million couples broke up. Only 9.47 million got married, a record low in modern times.
The judges routinely reject initial divorce petitions and oblige plaintiffs to return after a period of reflection of up to three months. Politics should rule out cases of violence, but many judges are too scared to declare a husband an abuser. Some judges fear that they will be attacked themselves. Others worry about leading a case that leads to family murder. Women who report abuse pose no threat and are pushed aside. But men who threaten violence are sometimes bought up with property or even custody, especially when a son is involved, Judge Mr. He told.
Ms. Li believes that a woman who moves into her husband’s rural family home is particularly at risk. Usually she had to divorce her husband in the local court. Often his relatives and neighbors and police officers refuse to testify against a person they consider to be one of their own. Partly as a result, injunctions against violent husbands remain vanishingly rare.
Judges are quick to spot those who arrive in court desperate for a divorce or custody of a child. They urge such needy parties to give up property or make crippling cash payments to a spouse in order to “buy” their freedom. This dynamic hurts women who initiate 70% of divorces. In other cases, the parent with less money, usually the mother, is simply seen as too poor to keep a child. The judges do not want to spend time haggling over a maintenance order, not least because such decisions are difficult to enforce in China.
Ms. Wang is vulnerable in all of these ways. Desperate to keep her daughter, she needs a court to preserve her precious hookah papers. Worse, even if she does get legal aid, government grants for attorneys are so low that many legal aid attorneys just “go through the applications,” said a family lawyer in Beijing.
Hold up half the sky ungratefully
Stories of suffering abound. Ms. Guo, a migrant worker from rural Hebei Province in northern China, observed a colleague who divorced for three years in court only to lose both children and pay her husband 70,000 yuan (US $ 10,730). In contrast, Ms. Guo applied for an uncontested divorce from a civil affairs office. One employee ended her marriage in 20 minutes because she did not seek a fortune or compensation from her husband, who had found another wife. “I had a smooth divorce at high economic and psychological costs,” she says of Coca-Colas near her factory in Shenzhen. In a Chinese divorce, “all women lose,” she adds.
That may seem paradoxical. Enough well-intentioned laws have been passed to suggest that leaders want China to be more women-friendly. The solution to the riddle lies in the priorities of the Communist Party. Officials sometimes cite three goals for the Chinese legal system: ensuring justice and fairness, increasing the efficiency of courts, and ensuring social stability. But party bosses take a utilitarian view of human happiness. So judges who bully individuals and who prioritize efficiency over fairness are only doing their duty. Maintaining social stability is an overarching obsession of party officials. And a reliable way to avoid social unrest is to side with the powerful versus the weak. In a Chinese divorce court, this means denying women their rights. In an autocratic regime, cruelty is not a coincidence, it is structural. ■
This article appeared in the China section of the print edition under the heading “Still a man’s world”.
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