The two recently published socio-legal studies, Ke Li's Marriage Unbound and Ethan Michelson's Decoupling: Gender Injustice offer important empirically based analysis of divorce processes, gender inequality and the role of law in the People's Republic of China. Both studies critically examine the structural, cultural and social obstacles women face within China's divorce system. While Michelson examines contested divorces within civil courts, highlighting how these cases reflect broader gender injustices, Li expands the scope to include administrative processes and mediation committees that also shape outcomes, particularly in rural areas. Michelson's and Li's robust analyses point to the entrenched patriarchal norms that persist in this area of the law and legal practice despite progressive legal reforms and China's growing engagement with global norms of gender equality. Moreover, both scholars point to the 2020 Civil Code reforms on marriage, which introduced a controversial “cooling-off period” for divorcing couples, adding another layer of state control over private life.
Ke Li's Marriage Unbound provides a detailed account of the state's role in marriage and divorce, emphasizing the intersection of legal frameworks and state control. Li explores the manner in which China's judicial system, particularly in rural areas, perpetuates gender inequality through biased divorce rulings, child custody awards and property division. She highlights the gap between “law in books” and “law in action,” focusing on how legal reforms have failed to address the systemic challenges women face. One of Li's significant contributions is her exploration of the cultural shifts in Chinese family life brought about by rapid economic growth, rural-to-urban migration, and the state's reliance on Confucian values to stabilize the family unit. These transformations have increased the vulnerability of marriages, leading to more divorces and, as Li discusses, an enhanced reliance on quasi-legal processes such mediation to manage familial disputes.
The book may be seen as divided into two main parts (Li herself imaginatively suggests several differing ways in which the structure of the book may be envisioned). In the first, chapters two (“Marriage on the move”), three (“Disputation as a state enterprise”) and four (“The rise and fall of legal workers”) explore the changing outside world within which the basic-level court system in rural China operates. Chapters five (“Judging divorce in the people's courts”) – perhaps the most substantial part of the analysis –, six (“Onstage and offstage”) and seven (“Issues and nonissues”) are more focused on the Chinese judiciary and its decision- making, looking at the contexts within which formal and informal processes are mixed together, leaving some contented with their outcome and many others disheartened by the results of their litigation experience. The book concludes with an important epilogue, in which recent developments are considered.
Ethan Michelson's Decoupling highlights the gap between legal principles and their practical application in Chinese divorce courts. His chapters two to seven explore legal rights, institutional norms and court decision analysis, highlighting the neglect of domestic violence allegations. Chapter two reviews divorce rights and the law, focusing on gender equality and domestic violence. Chapter three identifies norms weakening these rights, causing institutional decoupling. Chapter four examines millions of court decisions (after China moved judgments online). Chapters five and six assess the causes and effects of judges’ heavy caseloads and how a “divorce twofer” system harms women by delaying resolutions, leaving them in potentially abusive situations. Chapter seven discusses gender injustice and the neglect of domestic violence claims. Chapter eight analyses decisions on divorce petitions, often favouring men. Chapter nine examines the outcomes of denying divorces in domestic violence cases, leading to female victims fleeing and resulting prosecutions. Michelson argues judges could save lives by applying the law, granting divorce to abuse victims. Courts further victimize women by granting custody to abusers, ignoring best interests and judicial guidelines, as chapters 10 and 11 reveal. Chapter 10 examines child custody determinations, stating custody should prioritize the child's best interests. However, courts often favour fathers. Chapter 11 analyses child custody decisions, showing that abused mothers are disadvantaged. Mothers have better chances with multiple children or only daughters. When multiple children are involved, courts often split custody, typically assigning sons to fathers and daughters to mothers. Chapter 12 concludes with insights on the limits and potential for global legal norms to affect local practices.
Both books face a particular issue, which both authors recognize and to some extent deal with, in that both place their main focus on contested divorce – that is, divorce by the courts. Although the insights provided by Li and Michelson are invaluable, they are derived from statistically a relatively narrow area of divorce. Surprising though it might seem, by the time family law was re-enacted in several parts of the 2020 Civil Code, the vast majority of divorces took place through the administrative process of divorce by mutual consent (xieyi lihun). As Michelson himself acknowledges, while judicial divorce has tended to impact on official and popular thinking about divorce, any such impact has occurred “[d]espite being far outnumbered by uncontested, voluntary, mutual-consent ‘divorces by agreement’ processed by marriage registration offices in the Civil Affairs Administration” (pp. 14, 191). Li, while less court-centric, also does not deal in detail with what became by the late 2010s the main avenue for divorce – the large majority of unhappy couples, voting with their feet so to speak, chose to end their marriage by the administrative process of mutual-consent divorce. This popular form of divorce was seen by the authorities to be spiralling out of control, and so it was made subject to controversial restrictive conditions in the 2020 Civil Code – Article 1077 imposed on not only contested divorces but also divorces by mutual consent a so-called “cooling-off period” (lihun lengjingqi) of 30 days in which the married couple might rethink their rash decision to terminate the marriage (qingshuai lihun). This has had the effect of applying a sharp brake on the spiralling trend of administrative divorce, starting on 1 January 2021, the day the new Civil Code came into effect. It seems likely that divorce by mutual consent has been a relatively unproblematic process, given its growth in popularity, but further research is needed before firm conclusions can be reached.
Despite their somewhat different focal points – Michelson on civil litigation and trial, and Li on the broader state mechanisms – both books offer essential insights into the ways in which law, state power and culture intersect to perpetuate gender inequality in China. Taken together, the authors’ research and analysis provide a compelling argument for the need to critically examine the manner in which the Chinese legal system operates in practice, particularly given that often patriarchal contexts within which impactful decisions are made. These studies are indispensable for scholars of gender studies and law, especially but not exclusively in relation to contemporary Chinese society, offering rich data and nuanced analyses of the ongoing struggle for gender justice in the PRC.
