What China’s new marriage law has to do with American social conservatism

PhotobucketLast month, a new interpretation of Chinese law went into effect that awards ownership of property bought before marriage to the original buyer, rather than to the couple jointly, as the law had previously been.

It’s easy to see how this change would mostly affect women, and could threaten the economic security of divorced Chinese women, especially considering how ingrained male home ownership is in Chinese culture: Chinese men traditionally buy a home before they marry, and many parents start a “home-purchase fund” for their child as soon as they know it is male. One article even reports that “a marriage entered into when the male does not have a house to provide is referred to as a ‘naked wedding.’”

While there are some cultural considerations here, the link between gender equity and divorce law, and the threat of disempowerment for women divorcees, is far from culturally specific.

“If there’s one thing feminists love, it’s divorce,” Phyllis Schlafly, leading social conservative, anti-feminist, and Bachmann pal has famously claimed.

Other anti-feminists have gone so far as to blame feminists for allegedly skyrocketing divorce rates. While there is a link between feminism and the right to divorce on equal terms, Amanda Marcotte has thoroughly debunked this whole “feminists love/cause divorce” thing here, and she’s not the only one. In her words, “the scholarship is mounting that demonstrates that far from breaking up families, feminism has managed to spare the subsequent generations from miseries that were far more certain in a prior era.”

As untrue as it is that feminists love divorce, the converse is certainly true: anti-feminists and social conservatives have a vested interest in condemning it in the name of promoting “family values” and “traditional marriage”.

Case in point: remember when Michele Bachmann signed that social conservative pledge called “The Marriage Vow – A Declaration of Dependence upon Marriage and Family” that was anti-abortion, anti-same sex marriage, anti-porn, and more? You may also remember that it got a lot of negative attention for saying that black children were better off during slavery because they were more likely to be born to a two parent home.

Well, a lesser known provision in that pledge condemned the American propensity for “quickie divorce”, promoting “extended second chance or cooling-off periods” to dissuade against it and lobbying for a 2011 law called the “Parental Divorce Reduction Act”. This is a radical bill that would require parents of minor children “to participate in four to eight hours of face-to-face divorce education classes” before filing for divorce which they would pay for themselves. After completing the classes, the parents would then need to wait an additional eight months before they may file for divorce, you know, for “reflection and reconciliation.” I couldn’t make this stuff up.

From the pledge:

Social protections, especially for women and children, have been evaporating as we have collectively “debased the currency” of marriage. This debasement continues as a function of adultery; “quickie divorce;” physical and verbal spousal abuse; non-committal co-habitation…

As terrible as the new divorce law in China is– and it is undeniably terrible– it is not just happening in its own bubble, totally disconnected from U.S. politics, an ocean and culture away. If the U.S. social conservative movement had it their way, divorce would be the opposite of “quickie”, meaning bureaucratic, more expensive than it already is, difficult to obtain, and less just, which is what the new interpretation of Chinese marriage law effectively does. One thing is clear: de-incentivizing divorce with threats of time or money loss is a rights violation and is bad for women.

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14 Comments

  1. Posted September 8, 2011 at 4:48 pm | Permalink

    I’m having a hard time drawing the philosophical connection between the Chinese interpretation of division of property after divorce and your statements regarding divorce in the U.S.

    Isn’t having assets you solely owned pre-marriage being partly awarded to the person you are divorcing exactly “de-incentivizing divorce with threat of money loss”? It seems to me that the more you have a court reapportioning assets, the more you are heading in the direction of bureaucratic, expensive, and difficult to obtain.

    In the abstract, I don’t think the new principle is undeniably terrible as you state. If my wife decided tomorrow that us getting married was a mistake, I don’t think there is a moral justification for me being able to claim half ownership of her car. In practice, of course, this is easy for me to say since we are both independently self-supporting and bought a house together.

    Rather than complaining that people who leave a marriage shouldn’t be able to keep the assets they entered with, should we be attacking the principle that men should provide the home? As the Chinese writers quoted in the NY Times article say, “Men have always provided the marriage home, so women’s rights have been hurt,” and “Women, work hard, earn money and buy your own home. After this, a man is as insubstantial as a cloud.”

  2. Posted September 8, 2011 at 5:18 pm | Permalink

    What about the women who got married while the old interpretation of the law was in effect? They may have made different decisions about marriage and their finances if they knew this is how the law would be interpreted 21 years in the future. Also, the law doesn’t seem to factor in things like maintenance and repairs, which are ways of contributing to the value of a home that are not reflected in the original purchase.

  3. Posted September 8, 2011 at 7:35 pm | Permalink

    It’s hard for me to see mentioning the change in China’s divorce law without also mentioning the gender skew that in turn skews the marriage market. Is the law so terrible? I’d want to look a lot more in depth into how it plays out before I either jumped on it or made comparisons between it and the US situation.

    I’m basically on board in terms of values. But if a man pretty much has to have a house in order to get married, saving for a house can be the work of decades, and women are relatively pretty darned hard to come by, if he marries, and then his wife soon after chooses to divorce him… does it make sense for her to own half the house? Maybe there isn’t a one size fits all solution, but I think the Chinese situation isn’t directly comparable to the American one.

  4. Posted September 8, 2011 at 8:04 pm | Permalink

    This is really interesting, but I don’t think the connection between forcing MEN and WOMEN into longer divorce proceedings has as much to do with Chinese property law in regards to divorce as you make it to.

    I live in a state where the only property my husband and I can dispute if we were to divorce is that which was acquired while we were married. (We did, however, buy a house before we were married, so that is a separate issue). And I have to say, I have no problem with that law whatsoever. In fact, I think it’s very fair.

    If we argue that women can only prosper if they are married, we aren’t doing very much to change the overall attitude. And I do understand why the above law could (and will) negatively impact Chinese women, but that impact is only a symptom of a bigger issue – i.e. societies that create environments where women cannot prosper independently of men. The law itself isn’t the issue.

    Why should I have equal rights to my husband’s properties that he bought and paid for well before we were married? Or likewise, why should he have access to antique jewelery that I inherited years before we ever met?

    I understand the argument, but I don’t agree with it. I am sure I will get a lot of backlash on this, but it’s just my two cents.

  5. Posted September 8, 2011 at 8:20 pm | Permalink

    I think the consequences of passing laws that made it more difficult to divorce would lead in what conservatives would dislike even more: less marriages in the first place. Or, people separating without the legalities and living with new partners without getting married. Anyway, it’d be a mess financially and a downright pain. Why is it that conservatives are for “small government” when it comes to many things, but not things like this that are just going to downright annoy the shit out of millions of people?

  6. Posted September 8, 2011 at 9:47 pm | Permalink

    I lost you on the undeniable terribleness. I could be ignorant of divorce law, but having gotten married in California; I was comforted by my understanding that the houses that my wife and I had purchased prior to the marriage would not become community property. So, if we were to get divorced, we wouldn’t have to bicker over the value of our properties that we’d acquired prior to the marriage, and neither of us would be forced to sell or buy the other party out in an unfavorable real estate market. How is this Chinese law any different than California law?
    Maybe it’s just my Californian culture, but it just seems fair that we should be able to leave a marriage with the assets that we acquired prior to the marriage, and that we split that assets that we acquired together. This seems to fit more with the current reality of dual income relationships.
    I do see it as problematic since it sounds like it’s being applied retroactively, and people might have planned differently were they not entitled to half of the home. That could have terrible consequences.

    • Posted September 9, 2011 at 5:48 am | Permalink

      I think that it’s a huge “your situation may vary” situation.

      I live with (we aren’t married, but imagine we are) my SO – in the house he owns. At present I work hard to earn money and then I give a tiny amount to him to cover bills, he works hard to earn money to pay the mortgage – it’s clearly his house.

      On the other hand if I quit my job and used all my energy to instead keep the house perfectly lovely in every way; have, raise, and home-school his children; support his career ambitions (hosting dinner parties for his networking efforts perhaps)… well then I would expect that if we divorced I might receive some compensation for doing all of that unpaid work – in fact if I were awarded custody of the children I’d probably expect to keep the house (so as not to uproot them).

      Given the wide spectrum between “contributes essentially nothing to the marriage” (married, immediately regretted it and separated) and “contributes absolutely everything they have to the marriage for many years” there clearly should (IMO, natch) be a wide spectrum of possible allocation of assets on divorce. So I would say that making an inflexible law would be clearly wrong; although I’m not clear on whether this is an inflexible “always this way” law or a change in the default that could still be contested.

      • Posted September 9, 2011 at 1:01 pm | Permalink

        I’m sure that, as with all laws, there are depths and complexities that are beyond us. More flexible laws mean more legal complexities and greater barriers to divorce.
        I think that the moral of the story is that you need to have your partner sign personal assets over to community assets if you’re planning to live a single income relationship. More and more the “no career” spouse seems like an eccentricity.

      • Posted September 12, 2011 at 8:50 pm | Permalink

        But in fact you wouldn’t be left out in the cold. He only keeps what he owned BEFORE the marriage. If he’s still paying the mortgage while you are married, then you own a portion of the house. Whatever percentage he paid during your mortgage gets split – not to mention the appreciation on the house (which your % is applied to).

        Any other assets such as RRSPs, savings, cars, etc. acquired during the marriage are also up for splitting.

        So in your scenario you would be entitled to alot more then you might think, even (I assume) in China.

  7. Posted September 9, 2011 at 12:36 am | Permalink

    “As terrible as the new divorce law in China is– and it is undeniably terrible”

    Is it undeniably terrible? The notion of protecting property brought into a marriage isn’t terrible in and of itself. It seems to be a mandatory prenuptial agreement in that it protects individual assets.

    What’s undeniably terrible is a culture where homeownership is gendered, and where parents invest economic resources differently depending on the gender of their child.

    The law is problematic because the culture surrounding property ownership is problematic, but the effects of the law, not the law itself, are what’s terrible.

  8. Posted September 9, 2011 at 1:04 am | Permalink

    Great first Uganda, now China?
    Keep your schnozzes out of other countries social conservatives!!!

    • Posted September 9, 2011 at 8:08 am | Permalink

      From the NY Times article, it sounds as though this is was an internal Chinese revision of law, driven by Chinese thinkers – the article references and quotes a law professor from Renmin University in Beijing “whose views, marriage specialists said, had influenced the government.” Unlike Uganda, I don’t think this is a case of Americans leaning on other countries to implement their desired social policies.

      I don’t think China would take as easily to such pressure from American Christians as Uganda, for a whole host of reasons. Also I am willing to bet that most American social conservatives would be against this change! I would think they would view it both as making divorce easier and also as a threat to the existing patriarchal presumption that men, and only men, will bring a house into a new marriage.

  9. Posted September 9, 2011 at 1:49 am | Permalink

    I think this is already the law in America. The marital estate usually only consists of property acquired through earnings during the marriage. It usually also excludes money or property inherited by one spouse solely.

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