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Ethan Michelson highlights gender injustice in China’s divorce courts 

Jul 13, 2023

Dr. Ethan Michelson, professor and James and Noriko Gines Department Chair in the Hamilton Lugar School Department of East Asian Languages a Dr. Ethan Michelson, professor and James and Noriko Gines Department Chair in the Hamilton Lugar School Department of East Asian Languages and Cultures; professor in the IU Department of Sociology and the Maurer School of Law; academic director of the IU China Gateway Office.Ethan Michelson’s book, Decoupling: Gender Injustice in China’s Divorce Courts (Cambridge University Press, 2022), paints a grim picture of a widespread problem that is hiding in plain sight – the difficulty of obtaining a divorce in China, particularly if you are a woman abused by her husband. Michelson says the book title is a double entendre, “The first meaning is literal – it refers to a decoupling of married spouses. At another level, it also refers to a gap between official promises of the law and the degree to which courts fulfill them in practice.”  

Decoupling brings together Michelson’s areas of scholarly expertise in Chinese law & society. He is a professor in the Indiana University (IU) Department of Sociology, the Hamilton Lugar School’s Department of East Asian Languages and Cultures (where he serves as the James and Noriko Gines Department Chair), and the Maurer School of Law. In addition, Michelson is academic director of IU’s China Gateway Office 

In researching Decoupling, Michelson focused on Henan and Zhejiang provinces in China. Using a combination of big data analysis of nearly 150,000 divorce decisions, and in-depth illustrations from over 100 individual cases, Michelson exposes the gap between how divorce laws in China are written and how they are implemented. 

Michelson says the data were “hiding in plain sight,” because most Chinese court decisions between 2008 and 2016 were posted on public websites. “Web-scraping” enabled Michelson to access the full text of court decisions from all 252 basic-level courts in both provinces. After Michelson acquired this massive corpus of text, it took him another two years to analyze the data, and yet another two years to compile the results into book form. 

Through his analysis, Michelson found that although China symbolically embraces global legal norms regarding divorce, in practice, courts granted divorces in fewer than half the cases the first time they were heard in court, delaying divorces by an average of about one year and therefore prolonging women’s exposure to abuse. He says, “Chinese courts’ highly institutionalized practice of denying first-attempt divorce petitions and granting divorces on subsequent litigation attempts disproportionately impacts women and has spawned a sizable population of female marital-violence refugees. 

On paper, Chinese law stipulates that a “breakdown of mutual affection” is all that is needed for a divorce to be granted, a standard which is similar to “no fault” divorces in many other countries. Michelson explains, “The freedom of divorce and gender equality are foundational principles, not just in China, but in the socialist world more generally, going back to the 1930s. It [the freedom of divorce and gender equality] was enshrined in the 1950 Marriage Law, which was the first body of law enacted by the People’s Republic. The “breakdown of mutual affection” was added to the Marriage Law in 1980.”  

Although these laws were intended to help people get out of unhappy marriages and secure unilateral divorce based on irreconcilable differences, Michelson says, in practice, it is not so easy. He explains, “Judges enjoy a huge amount of discretion in the interpretation and application of this divorce standard. In principle, if mediated reconciliation fails, and the plaintiff insists on divorcing, judges are supposed to grant the divorce. But in practice, judges exercise almost limitless discretion.” 

Decoupling: Gender Injustice in China's Divorce Courts (Cambridge Studies in Law and Society) Decoupling: Gender Injustice in China's Divorce Courts (Cambridge Studies in Law and Society)Beyond the “breakdown of mutual affection” standard for divorce, Michelson says fault-based legal standards call on judges to grant divorces in cases involving spousal wrongdoing. He explains, “Long before China’s Anti-Domestic Violence law took effect in March 2016, China had a huge arsenal of laws designed to combat and punish domestic violence.”  

In reality, however, Chinese courts do not seem to consider domestic violence as grounds for granting divorce. Michelson found 25% of all divorce petitions were filed by women making domestic violence allegations, but fewer than 2% of these divorces were granted on the basis of spousal abuse. In fact, some of those divorces were granted only because the defendant agreed or did not show up to court. Michelson says, Judges seem hell-bent on denying first-attempt divorce petitions. They twist and subvert the law in order to do so, even when it means ignoring domestic violence allegations. They won’t let anything, not even domestic violence allegations, get in their way of this universal practice which significantly prolongs women’s exposure to violence.” 

How do judges get away with clamping down on divorce and sidelining claims of marital abuse? Michelson says, “Through contorted efforts to establish the existence of mutual affection, despite allegations and evidence of marital violence.” 

For example, in cases where women produced copious amounts of evidence documenting their abuse, including hospital records and restraining orders, judges were prone to acknowledge they had suffered injuries, but claimed it was not possible to affirm the husband perpetrated the violence. When shown “pledge letters” in which husbands confessed to mistreating their wives, judges, focusing not on the misdeeds but rather on the husbands’ apologies and promises not to repeat their actions, would affirm the existence of “marital affection” and “reconciliation potential.”  

When they are unable to divorce an abusive husband, Michelson says women often go into a “flight or fight” mode. “Flight” refers to women who escape their abuser and become domestic violence refugees. As for the “fight” mode, Michelson explains, “Many criminal domestic violence cases – including homicide – involve women who had previously attempted to divorce their abusive husbands.”  

In reviewing official government statistics, Michelson found that over time, there was a trend toward “clamping down” on divorces. In the mid 2000s, about 70% of divorce requests were granted. By 2015, just 40% of divorce petitions resulted in actual divorce. 

According to Michelson, the impact of judges’ refusal to grant divorces is enormous, “To extrapolate to China as a whole, from my collections of cases from Henan and Zhejiang, very conservatively speaking, at least 90,000 women beaten by their husbands have been exposed to further violence, typically for another year after courts deny their divorce petitions. This is 90,000 per year, and this is a very conservative estimate.” 

Michelson says there are many possible explanations for the trend to deny divorces. For example, he says, “There is no question that the political ideology that supports the judicial clampdown on divorce is, to some extent, rooted in concerns about below-replacement fertility rates. The logic escapes me, however. I don’t understand how any reasonable person can think that preserving toxic marriages will promote childbearing.” 

There are features of the Chinese judicial system itself that may contribute to the clampdown on divorces. First, judges carry heavy caseloads, and Michelson’s analysis shows that higher caseloads correlate strongly with fewer divorces. Secondly, the current performance rating system for judges rewards efficiency and volume of cases processed.  

As a result, Michelson supports earlier research showing that there is incentive for judges to refuse to grant a divorce the first time a couple appears in court. Instead, the judge will tell the couple to come to an agreement on property division and child custody arrangements, then return to court in six months. He says, “I call it a “divorce twofer,” meaning two for the price of one. But that’s for the judge – not the litigants.” Judges receive credit for two cases – one for each time the couple appeared in court. In addition, if the couple settles their property and custody issues outside of court, the hearings are very efficient. 

As for the public, Michelson says that the few cases that have made the news in China have sparked nation-wide public outrage and forced courts to grant divorces. “However,” he says, “my sense is that the general public is not fully aware of the sheer ubiquity of this phenomenon of routine denial of divorce petitions in the courts – even those involving strong claims of domestic violence supported by evidence 

Michelson continues, “Cases like these are utterly common – there are thousands of similar cases hiding in plain sight in the repositories of online court decisions…the cases that people do hear about are exceptional only to the extent that they have drawn public attention.” 

To help raise awareness, Michelson has made the ebook version of Decoupling available for free. He explains, “I wanted to make it accessible to legal scholars, reporters, to anybody in China who might otherwise have difficulty accessing the book, just to show how prevalent this practice is in courts – all 252 courts in both provinces. And maybe, I don’t know if it will change anything, but I would like it if it would exert some kind of pressure to change judicial practices.”  

In the meantime, Decoupling has attracted broad attention outside of China. Michelson has been cited as an expert on Chinese marriage and divorce in The New York Times, the Economist, and CNN. He has also been invited to present his work at the Harvard University Fairbank Center for Chinese Studies, Columbia University’s Weatherhead East Asian Institute, the University of Michigan Asian Languages and Cultures, Stanford University’s Walter H. Shorenstein Asia-Pacific Research Center, and the Centre for Comparative and Public Law at the Faculty of Law, University of Hong Kong. As of June 2023, the second edition of Decoupling is now available in paperback 

 

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