Civil Code of the People's Republic of China/Book Five
Marriage and Family
Marriage and Family
- This Book regulates the civil-law relations arising from marriage or family.
- Marriage and family are protected by the State.
- A marriage system based on freedom of marriage, monogamy, and equality between men and women is implemented.
- The lawful rights and interests of women, minors, the elderly, and persons with disabilities are protected.
- Arranged marriages, mercenary marriages, and other acts interfering with the freedom of marriage are prohibited. The exaction of money or other property by way of marriage is prohibited.
- Bigamy is prohibited. No one who has a spouse may cohabit with another person.
- Domestic violence is prohibited. Maltreatment or desertion of family members is prohibited.
- Families shall establish good family values, promote family virtues, and enhance family civility.
- Husband and wife shall be loyal to each other, respect each other, and care for each other. Family members shall respect the elderly, take care of the young, help each other, and maintain a marital and familial relationship of equality, harmony, and civility.
- Adoption shall be in compliance with the principle of acting in the best interest of the adoptee, and the lawful rights and interests of both the adoptee and the adopter shall be protected.
- Trafficking minors in the name of adoption is prohibited.
- Relatives include spouses, relatives by blood, and relatives by marriage.
- Spouses, parents, children, siblings, paternal and maternal grandparents, and paternal and maternal grandchildren are close relatives.
- Spouses, parents, children, and other close relatives living together are family members.
Entering into Marriage
Entering into Marriage
- A man and a woman shall enter into marriage freely and voluntarily. Neither party may compel the other party to enter into marriage against his will, and no organization or individual may interfere with the freedom of marriage.
- To enter into a marriage, a man shall reach the age of twenty-two, and a woman shall reach the age of twenty.
- Persons who are lineal relatives by blood, or collateral relatives by blood up to the third degree of kinship are prohibited from being married.
- Both the man and the woman intending to enter into a marriage shall file registration of the marriage in person with a marriage registration authority. If the proposed marriage is found to conform to the provisions of this Code, the marriage shall be registered and a marriage certificate shall be issued. A marital relationship shall be established upon completion of the marriage registration. The couple who has failed to file a marriage registration shall complete the registration.
- After a marriage has been registered, by mutual consent, the woman may become a member of the man’s family or vice versa.
- A marriage is void in any of the following situations:
- (1) either party to the marriage commits bigamy;
- (2) the parties to the marriage fall within the relative relations prohibited by law from marrying each other; or
- (3) either party to the marriage is under the statutory marriageable age.
- If a marriage is entered into as a result of coercion, the coerced party may apply to the people’s court to annul the marriage.
- Such an application to annul the marriage shall be made within one year from the date of the coercive act ceases.
- Where the coerced party whose personal freedom is illegally constrained wishes to annul the marriage, the application to annul the marriage shall be made within one year from the date when the party’s personal freedom is restored.
- 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.
- A void or annulled marriage has no legal effect ab initio, and neither party to such a marriage shall have any rights or duties arising from the marital relationship. Properties acquired during the cohabitation period shall be disposed of by mutual agreement. Where the parties fail to reach such an agreement, the people’s court shall adjudicate the case in compliance with the principle of favoring the no-fault party. When disposing of the property acquired during a marriage which has been voided due to bigamy, the proprietary rights and interests of the parties to the lawful marriage shall not be infringed upon. The provisions of this Code on parents and children shall apply to the children born by the parties to a void or annulled marriage.
- Where a marriage is void or annulled, the no-fault party has the right to request for damages.
- Husband and wife are equal in marriage and family.
- Both spouses have the right to use their own surname and given name.
- Both spouses are free to engage in production and other work, and to study and to participate in social activities. Neither party may restrain or interfere with such freedom of the other party.
- Both spouses have equal rights and joint duties to raise, educate, and protect their minor children.
- Both spouses have the duty to support each other.
- The party in need of spousal support is entitled to claim such payments against the other party who has failed to fulfill the spousal support duty.
- A civil juristic act performed by one of the spouses to meet the daily needs of the family is binding on both spouses unless otherwise agreed between the third person and the spouse performing the act.
- Restrictions imposed by the spouses on the scope of civil juristic acts that may be performed by one of the spouses may not be asserted against a bona fide third person.
- Husband and wife have the right to inherit the estates of each other.
- The following property acquired by the spouses during their marriage constitutes community property and are jointly owned by the spouses:
- (1) salaries and wages as well as bonuses and other remuneration received from services rendered;
- (2) proceeds obtained from production, business operation, and investment;
- (3) proceeds arising from intellectual property rights;
- (4) except as otherwise provided in Subparagraph (3) of Article 1063 of this Code, property acquired from inheritance or given as a gift; and
- (5) other property that shall be jointly owned by the spouses.
- Husband and wife have equal rights when disposing of the community property.
- The following property constitutes separate property of one of the spouses:
- (1) premarital property of one spouse;
- (2) compensation or indemnification received by one spouse for injury inflicted upon him;
- (3) property that belongs to only one spouse as provided in a will or gift contract;
- (4）articles exclusively used by one spouse for daily life; and
- (5) other property that shall be owned by one spouse.
- 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.
- A man and a woman may agree that their premarital property and the property to be acquired by them during their marriage may be owned by them separately or jointly, or partially owned separately and partially owned jointly. The agreement shall be in writing. Where there is no agreement or the agreement is unclear, Articles 1062 and 1063 of this Code shall apply.
- The agreement on their premarital property and the property acquired during the marriage is legally binding on both parties to the marriage.
- Where the spouses agree that the property acquired during the marriage is to be owned separately, a debt incurred by one of the spouses shall be paid off with his separate property to the extent that the third person concerned is aware of such an agreement.
- During the marriage, one of the spouses may apply to the people’s court for partition of their community property in one of the following situations:
- (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; or
- (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.
Relationship between Parents and Children, and Relationship among Other Close Relatives
Relationship between Parents and Children, and Relationship among Other Close Relatives
- Where parents fail to fulfill their duty to raise their children, a minor child or an adult child who is incapable of supporting himself has the right to claim child support payments against his parents.
- Where an adult child fails to fulfill the duty to support his parents, his parents who lack the capacity to work or are in financial hardship have the right to claim support payments against the adult child.
- Parents have the right and duty to educate and protect their minor children. Where a minor causes damage to others, his parents shall bear civil liability in accordance with law.
- Children shall respect their parents’ right to marriage and shall not interfere with their parents' divorce, remarriage, or their marital life thereafter. Children's duty to support their parents shall not end with the change of their parents' marital relationship.
- Parents have the right to inherit their children’s estates, and vice versa.
- Children born out of wedlock have equal rights as children born in wedlock, and no organization or individual may harm or discriminate against them.
- A natural parent who does not have physical custody of his out-of-wedlock child shall pay child support for such child who is a minor or who is an adult but incapable of supporting himself.
- Stepparents shall not maltreat or discriminate against a stepchild, and vice-versa.
- Provisions of this Code governing the parents-children relationship shall apply to the rights and duties between a stepmother or a stepfather and a stepchild who has been raised and educated by such stepfather or stepmother.
- 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.
- Paternal or maternal grandparents, if financially capable, have the duty to raise their minor grandchildren whose parents are deceased or are incapable of such raising.
- Paternal or maternal grandchildren, if financially capable, have the duty to support their grandparents whose children are deceased or are incapable of providing such support.
- Elder brothers or sisters, if financially capable, have the duty to raise their minor siblings whose parents are deceased or are incapable of such raising.
- Younger brothers or sisters who have been brought up by their elder siblings and who are financially capable have the duty to support such elder siblings who lack both the capacity to work and the means to support themselves.
- Where the husband and the wife both agree to divorce, they shall enter into a divorce agreement in writing and file divorce registration in person with the marriage registration authority.
- The divorce agreement shall include expression of intent of both parties to voluntarily divorce and their mutual agreement on such matters as child support, property division, and allocation of debts.
- 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.
- Upon ascertaining that the divorce is voluntarily intended and that the two parties have reached agreement on such matters as child support, property division, and allocation of debts, the marriage registration authority shall register the divorce and issue a divorce certificate.
- Where the husband or the wife unilaterally petitions for divorce, a relevant organization may offer mediation, or such person may file for divorce directly with the people’s court.
- The people’s court shall, during the divorce trial, offer mediation, and grant divorce if mutual affection no longer exists between the two parties and mediation fails.
- A divorce shall be granted when mediation fails under any of the following circumstances:
- (1) one spouse commits bigamy or cohabitates with another person; or
- (2) one spouse commits domestic violence or maltreats or deserts a family member;
- (3) one spouse habitually commits acts such as gambling, drug abuse, or likewise, and refuses to correct such behavior despite of repeated warnings;
- (4) the spouses have been separated for no less than two full years due to marital discord; or
- (5) other circumstances exist under which mutual affection no longer exists between the spouses.
- Where one spouse is declared to be missing and the other party files for divorce, such divorce shall be granted.
- Where, after a judgment has been made against divorce and the spouses have been separated for one more year, such divorce shall be granted where one of the spouses files again for divorce with the people’s court.
- A marital relationship is dissolved upon completion of registration of divorce or
when a judgment of divorce or mediation paper of divorce comes into effect.
- Where the spouse of a military personnel on active service requests for divorce, the consent of the spouse who is a military personnel on active service shall be obtained unless he is at serious fault.
- A husband may not file for divorce during his wife’s pregnancy, within one year after his wife delivers, or within six months after termination of her pregnancy, unless the wife applies for divorce, or the people’s court deems it necessary to hear the divorce request made by the husband.
- Where, after divorce, both the man and the woman intend to resume their marital relationship, they shall file for re-registration of marriage at a marriage registration authority.
- The parents-children relationship shall not be dissolved upon divorce of the parents. Whether a child is under the physical custody of the father or the mother, he remains to be the child of both parents.
- After divorce, parents continue to have the rights and duties to raise, educate, and protect their children.
- As a matter of principle, a mother shall, upon divorce, have physical custody of her child under the age of two. Where parents fail to reach an agreement on the physical custody of their child over the age of two, the people’s court shall adjudicate it in compliance with the principle of acting in the best interests of the minor child and in light of the actual situations of both parents.
- Upon divorce, where a parent has the physical custody of his child, the other parent shall pay for the child support in part or in whole. The amount and duration of such payment shall be determined by both parents through agreement, or, where no such an agreement is reached, adjudicated by the people’s court through making a judgment.
- The agreement or judgment provided in the preceding paragraph shall not preclude the child, when necessary, from making reasonable demand of payment on either parent in excess of the amount specified in the agreement or judgment.
- After divorce, a parent who does not have the physical custody of his child has the right to visit the child, and the other parent is obligated to facilitate the visit.
- The manner and schedule for exercising the right to visitation shall be determined by both parents through agreement, or, where no such an agreement is reached, adjudicated by the people’s court.
- If a parent's visit to a child is detrimental to the child's physical or mental health, the visit shall be suspended by the people’s court in accordance with law, and the visit shall be resumed when the cause for such suspension no longer exists.
- Upon divorce, the community property of the spouses shall be partitioned by them through agreement, or, where no such an agreement is reached, adjudicated by the people's court in light of the actual state of the property and in compliance with the principle of favoring the rights and interests of their children, the wife, and the no-fault party.
- The rights and interests of the husband or wife arising from the contractual management of land based on the household shall be protected in accordance with law.
- Where one spouse is burdened with additional duties for raising children, looking after the elderly, or assisting the other spouse in his work, the said spouse has the right to request for compensation upon divorce against the other party, and the other party shall make due compensation. The specific arrangements for making such compensation shall be determined by the spouses through agreement, or adjudicated by the people’s court where no such an agreement is reached.
- Upon divorce, the husband and wife shall jointly pay off their community debts. Where the community property is insufficient to pay off the debts, or the property is owned by each spouse separately, such debts shall be paid off by the spouses through agreement, or adjudicated by the people’s court where no such an agreement is reached.
- Where one party is in financial hardship upon divorce, the other party, if financially capable, shall render appropriate assistance. The specific arrangements shall be determined by the spouses through agreement, or adjudicated by the people’s court where no such an agreement is reached.
- A no-fault spouse has the right to claim compensation where divorce is caused by one of the following acts done by the other spouse:
- (1) has committed bigamy;
- (2) has cohabitated with another person;
- (3) has committed domestic violence;
- (4) has maltreated or deserted a family member; or
- (5) has acted with other serious faults.
- Where one spouse conceals, transfers, sells off, destructed or damages, or squanders the community property, or creates a false community debt in an attempt to unlawfully seize the property of the other spouse, the said spouse may receive less or no property upon partition of the community property in the case of divorce. Where one of the aforementioned acts committed by one spouse is found after divorce, the other party may file a lawsuit with the people's court for re-partition of the community property.
Establishment of an Adoptive Relationship
Establishment of an Adoptive Relationship
- 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 following individuals and organizations may place a minor for adoption:
- (1) the guardian of an orphan;
- (2) a children’s welfare institution;
- (3) a minor’s natural parents who are incapable of raising him due to unusual difficulties.
- Where neither of the parents of a minor has full capacity for performing civil juristic acts, and where they may seriously harm the minor, the guardian of the minor may place such minor for adoption.
- Where a guardian intends to place an orphan under his guardianship for adoption, he shall obtain the consent of the person who has the duty to raise the orphan. Where the person with the duty to raise the orphan does not consent to the adoption and the guardian is unwilling to continue exercising guardianship, a successive guardian shall be appointed in accordance with the provisions of Book One of this Code.
- Where the natural parents intend to place their child for adoption, they shall act in concert. Where one of the natural parents is unknown or cannot be traced, the other parent may place the child for adoption by himself.
- A prospective adopter shall meet all the following conditions:
- (1) having no child or only one child;
- (2) being capable of raising, educating, and protecting the adoptee;
- (3) not suffering from any disease that is deemed medically unfit to be an adopter;
- (4) having no criminal record unfavorable to the healthy growth of the adoptee; and
- (5) reaching the age of thirty.
- Adoption of a child from one’s collateral relatives by blood of the same generation and up to the third degree of kinship may be exempted from the restrictions provided in Subparagraph (3) of Article 1093, Subparagraph (3) of Article 1094, and Article 1102 of this Code.
- Adoption of a child by an overseas Chinese from his collateral relatives by blood of the same generation and up to the third degree of kinship may also be exempted from the restrictions prescribed in Subparagraph (1) of Article 1098 of this Code.
- A childless adopter may adopt two children, and an adopter with one child may adopt only one more child.
- Adoption of an orphan, a minor with disabilities, or a minor in a children’s welfare institution whose natural parents cannot be traced may be exempted from the restrictions provided in the preceding paragraph and Subparagraph (1) of Article 1098 of this Code.
- Where a person with a spouse intends to adopt a child, the person and his spouse shall jointly adopt the child.
- Where a person without a spouse intends to adopt a child of a different gender, the prospective adopter shall be at least forty years older than the adoptee.
- A stepparent may, with the consent of the natural parents of the stepchild, adopt the stepchild, and such adoption may be exempted from the restrictions provided in Subparagraph (3) of Article 1093, Subparagraph (3) of Article 1094, Article 1098, and Subparagraph (1) of Article 1100 of this Code.
- Both adoption and placing for adoption shall be based on mutual consent. Where a minor adoptee is aged eight or above, his consent shall be obtained.
- Adoption shall be registered with the civil affairs department of the people's government at or above the county level. The adoptive relationship is established upon registration.
- In the case of adopting a minor whose parents cannot be traced, the civil affairs department for adoption registration shall make public notice prior to the registration.
- The parties to an adoptive relationship may enter into an adoption agreement on a voluntary basis.
- Upon request of both parties or one of the parties to an adoptive relationship, an adoption shall be notarized.
- Upon establishment of an adoptive relationship, the public security department shall facilitate household registration for the adoptee in accordance with the relevant regulations of the State.
- An orphan or a child whose natural parents are incapable of raising him may be raised by the relatives or friends of his natural parents. The provisions of this Chapter shall not apply to the relationship between two persons one of whom is raised by the other.
- Where one spouse is deceased and the surviving spouse intends to place their minor child for adoption, the parents of the deceased spouse shall have priority in raising the child.
- Foreign nationals may adopt children in the People's Republic of China in accordance with law.
- The adoption of a child by a foreign national in the People's Republic of China shall be subject to the review and approval of the competent authorities of the foreign national's country of residence in accordance with the law of that country. The foreign adopter shall submit documents issued by the competent authorities of his country of residence certifying such personal information as his age, marital status, occupation, financial situation, physical condition, and whether he has criminal record. The foreign adopter shall conclude a written agreement with the person who places the child for adoption and register the adoption in person with the civil affairs department of the people’s government at the level of provinces, autonomous regions, or municipalities directly under the State Council.
- The certifying documents provided in the preceding paragraph shall be authenticated by the diplomatic authorities of the country in which the foreign national resides or by an agency authorized by the said diplomatic authorities, and then authenticated by the embassy or consulate of the People's Republic of China in the said country unless otherwise provided by the State.
- Where an adopter or a party placing a child for adoption requires that the adoption be kept confidential, the other persons shall respect their will and shall not disclose it.
Effect of Adoption
Effect of Adoption
- Upon establishment of an adoptive relationship, the provisions of this Code governing the parents-children relationship shall apply to the rights and duties between the adoptive parents and the adopted children. The provisions of this Code governing the relationship between children and the close relatives of their parents shall apply to the rights and duties between the adopted children and the close relatives of their adoptive parents. Upon establishment of an adoptive relationship, the rights and duties arising between the adoptee and his natural parents as well as the latter’s other close relatives shall be terminated.
- An adopted child may take the surname of his adoptive father or mother, or may retain his original surname upon consent of all the parties to the adoption.
- An adoption shall be void when it constitutes a void civil juristic act as provided in Book One of this Code or violates the provisions provided in this Book.
- A void adoption has no legal effect ab initio.
Dissolution of an Adoptive Relationship
Dissolution of an Adoptive Relationship
- No adopter may dissolve an adoptive relationship before the adoptee has reached the majority age unless there is an agreement between the adopter and the party who places the child for adoption to dissolve such relationship. Where an adoptee is aged eight or above, his own consent thereto shall be obtained.
- Where an adopter fails to perform the duty to raise the adoptee or commits maltreatment, desertion, or other acts infringing upon the lawful rights and interests of the minor adoptee, the person who has placed the child for adoption has the right to request that the adoptive relationship be dissolved. Where an adopter and a party who has placed a child for adoption fail to reach an agreement for dissolution of the adoptive relationship, either party may file a lawsuit with the people’s court.
- Where the relationship between the adoptive parents and the adopted child who has become an adult so deteriorates that they are unable to live together, the adoption may be dissolved by agreement. Where the parties fail to reach such an agreement, either party may file a lawsuit with the people's court.
- Where the parties agree to dissolve an adoptive relationship, they shall register the dissolution with the civil affairs department.
- Upon dissolution of an adoptive relationship, the rights and duties between an adoptee and his adoptive parents as well as the latter’s other close relatives shall be terminated, and the rights and duties between the adoptee and his natural parents as well as the latter’s other close relatives shall be automatically restored. However, while an adopted child has become an adult, whether the rights and duties between such an adoptee and his natural parents as well as the latter’s other close relatives are to be restored may be decided through consultation.
- After dissolution of an adoptive relationship, an adoptee who has been raised up by the adoptive parents and now become an adult shall provide living expenses to his adoptive parents who lack both the capacity to work and the means to support themselves. Where an adoptive relationship is dissolved because the adopted child maltreats or deserts his adoptive parents after the adopted child has become an adult, the adoptive parents may request the adoptee to compensate for the expenses incurred to raise the adoptee during the adoption period.
- Where dissolution of an adoptive relationship is required by the natural parents of the adoptee, the adoptive parents may request the natural parents of the adoptee to appropriately compensate for the expenses incurred to raise the adoptee during the adoption period, unless the adoptive relationship is dissolved because the adoptive parents maltreat or desert the adoptee.