Barriers to Justice: Women’s Struggle for Divorce Rights in China
- Human Rights Research Center
- 1 day ago
- 12 min read
Author: Yage Huang, SJD
May 15, 2025
Introduction
In July 2021, the Hengyang appellate court upheld a district court decision granting a divorce between Ning Shunhua and Chen Dinghua.[2] This marked the conclusion of Ning's persistent efforts, as she had sued for divorce five times over the course of four years. During this period, Ning and her family endured repeated threats, as well as physical attacks, from Chen, leading the court to issue Ning two protective orders against him.[3] Despite this judicial decision to grant the protective orders, the court still initially denied Ning's divorce applications, citing that the couple still had "mutual affection," which is the primary criterion under Article 1079 of the Marriage and Family section of China’s Civil Code (Marriage and Family law) utilized by Chinese courts to deny a divorce.[4] Similarly, Chen Xiangnan faced eight unsuccessful divorce lawsuits over four years (2017–2021), despite evidence of prolonged domestic violence.[5] The court consistently ruled that she failed to provide sufficient evidence that mutual affection no longer existed.
Specific Challenges for Women in Seeking Divorce
In China, women face unique challenges when it comes to divorce, often experiencing more hardship than men. Divorce has traditionally been seen as a negative, socially stigmatized event, especially for women, who face harsher social judgment than men. This societal pressure can discourage women from seeking a divorce or make the process more difficult. Although social perceptions of divorce have shifted, with women increasingly viewing it as a path to personal freedom, the stigma surrounding it persists. Second, women in China initiate most divorces. Data from the 2016-2017 period shows that women were the primary initiators in around 73% of divorce cases in Chinese courts.[6] This trend mirrors statistics from the United States, where 70% of divorces are initiated by women, suggesting a broader global shift toward women seeking independence from unhealthy marriages.[7] While this shift in divorce initiation is notable, it is important to recognize that the consequences of remaining in a marriage often affect women more severely than men, particularly in cases involving domestic violence.[8] According to a study in 2021, the lifetime prevalence of intimate partner violence (IPV) victimization was 25% for women and 8% for men in mainland China, highlighting that women are disproportionately impacted by abusive relationships.[9] In such cases, staying in a marriage can have significantly more detrimental effects on women’s mental and physical health.
Despite these challenges, the Chinese government has introduced a 30-day “cooling-off” period in the Marriage and Family Law before a divorce can be finalized.[10] The goal of this policy is to reduce the high divorce rate by encouraging couples to reconsider their decision. However, this new regulation places restrictions on both parties' rights to divorce and disproportionately impacts women, who are more likely to initiate divorce proceedings. This cooling-off period has, therefore, become an additional hurdle for women seeking to end unhappy or abusive marriages, further limiting their ability to secure a divorce.
The Legal Framework for Divorce in China
Ning and Chen's experiences are not isolated. At an increasing rate, court cases reveal that obtaining a divorce without mutual consent is exceedingly difficult in China. According to the Marriage and Family Law, there are two pathways to divorce:
Divorce by Mutual Consent
If both parties agree to divorce, they can register their application at the local civil affairs bureaus, provided they submit a mutual divorce agreement. This registration does not immediately grant a divorce certificate. However, a 30-day cooling-off period is mandatory, and has been since 2020. If both parties maintain their intent to divorce after this period, they may proceed with the application. Notably, either party can withdraw the application during or after the cooling-off period, effectively nullifying the divorce and forcing the couple to start the process over again.
Divorce Through Litigation
Divorce proceedings are applicable via litigation when one party seeks divorce against the other’s wishes. In these cases, courts prioritize mediation to preserve the marriage.[11] Divorce is granted only if the court determines that mutual affection is absent. The law identifies four primary indicators of the absence of mutual affection: bigamy or cohabitation with another person, domestic violence or abandonment, serious misconduct such as drug addiction or gambling, or a separation of at least two years due to incompatibility.[12]
Issues with the Current Legal Framework
Cooling-Off Period
The 30-day cooling-off period has faced widespread criticism domestically. The intention behind the cooling-off period is to slow down the country’s high divorce rate. However, this law overlooks individuals' right to voluntarily seek a divorce. The cooling-off period forces couples who agree to divorce to wait, allowing one party to change their mind and prolong the process, leading to potential legal disputes. The stated intent of the cooling-off period is to allow couples to reconsider their decision. In practice, however, it disproportionately empowers one party to halt the process, forcing the other to seek litigation—an option fraught with challenges, such as time delays, high costs, and the risk of escalating conflict. Alarmingly, there have been cases where husbands, opposed to divorce, have resorted to violence against their spouses during the cooling-off period.[13]
Challenges in the Legal Process
The litigation process for divorce in China is often prolonged and arduous. When one party files for divorce, the court generally prioritizes mediation in an effort to save the marriage. This practice can significantly delay the resolution of cases and has a tendency to leave those individuals seeing divorce trapped in unhealthy relationships. Even when sufficient evidence is presented—including evidence of domestic violence—judges are reluctant to grant divorce during the initial petition.
Reasons
There are several combined reasons causing hardship in divorce specifically for Chinese women. This article will explore three main factors: the cooling-off period, the strict application of the law, and the implications of recent policy changes.
The Manmade Cooling-Off Period
One of the key barriers to obtaining a divorce is that Marriage and Family Law in China tends to favor preserving marriages, which makes divorce harder to achieve. While no cooling-off period is required to enter a marriage, the law mandates a 30-day waiting period before a divorce can be finalized. This 30-day cooling period has been identified as one of the main barriers to divorce, especially in cases based on mutual consent. While mutual consent is often considered sufficient grounds for an uncontested divorce, this cooling-off period prevents immediate action, leading to changes in consent during the waiting period. One party can halt the divorce process at any point, which complicates matters and often forces the case into litigation.
Strict Interpretation of Divorce Laws
Another major issue is the courts’ strict interpretation of legal requirements when proving the absence of mutual affection in a marriage. When mutual consent is not present, one party must seek litigation to obtain a divorce. However, according to the data, the success rate for first-attempt divorce petitions is low, with only 25% granted in Henan in 2015 and 18% granted in Zhejiang in 2016.[14] Courts often apply narrow interpretations of these divorce criteria, making it difficult to achieve a divorce. Even if both parties meet the legal requirements, such as evidence of family violence, to demonstrate a lack of mutual affection, the court may still deny the divorce, interpreting that mutual affection persists, even if it appears implausible.
A clear example of a case in which the differentiations in defining mutual affection this is that of Ning and Chen, where, despite meeting the legal requirement for divorce due to family violence, the court ruled that mutual affection still existed and denied the divorce as the husband claimed he still loved his wife and did not agree to the divorce. Similarly, the two-year separation requirement—intended as a straightforward criterion for divorce—can be undermined in practice. For instance, judges may consider simple acts of communication, such as replying to a text message, as evidence of ongoing mutual affection, effectively invalidating one party to a marriage’s potential claims of prolonged separation. This rigid interpretation disproportionately impacts individuals, particularly women, who often face significant barriers in proving their case.
In cases like Ning and Chen’s, the only option after an initial divorce denial is to refile after a six-month waiting period. However, even with reapplication, many divorce petitions are still denied, further compounding the emotional and financial toll. Dr. Ethan Michelson, a professor of sociology, East Asian studies, and law at Indiana University Bloomington, conducted a study in 2022 indicating that the court-granted divorce rate was around 48%, meaning over half of all individuals who file for divorce in court remain married after the process concludes.[15] The reason is that judges benefit from the reduced caseload following a first denial, as they expect only a small portion of petitioners to return for another attempt.[16] As a result, many women are forced to seek alternative solutions. One option is to give up child custody or marital property in order to obtain an uncontested divorce; another is to remain legally married while living physically separated from their husbands.[17] In the second scenario, women may endure sexual abuse by their husbands. However, under criminal law, such acts are not recognized as “rape” within the context of marriage. Either situation is detrimental to women’s rights.
Policy Implications
The introduction of the three-child policy in August 2021 has further complicated divorce proceedings.[18] In response to this policy, local marriage registration offices implemented measures that restrict access to divorce, such as limiting the number of daily divorce appointments and requiring applicants to book weeks in advance.[19] These restrictions often result in long waiting periods, which yield individuals’ facing delays with no guarantee of making substantial progress towards a successful divorce proceeding. Moreover, a market has emerged where individuals who have the means are apt to pay for secured divorce appointments, which highlights the growing demand for a quicker divorce process.
Some local governments have also imposed restrictions, such as limiting the number of times one party can withdraw from or miss a divorce proceeding within a six-month period.[20] These policies are based on the assumption that by reducing the frequency of delays or withdrawals, individuals will be less likely to make impulsive decisions, thus promoting family stability by encouraging more thoughtful consideration of divorce and fostering the possibility of reconciliation. However, such restrictions make mutual consent divorces significantly more difficult, as individuals may lose their opportunity to divorce by mutual consent. Rather than facilitating a smoother divorce process, these measures inadvertently intensify the challenges faced by individuals, particularly women, who initiate most divorce. This is because women may lose the right to pursue an uncontested divorce if their partner withdraws or is absent from the proceedings—situations that are often beyond the woman’s control.
Broader Implications
The increasing challenges individuals face in obtaining a divorce are influencing societal attitudes toward marriage in China. The marriage rate has steadily declined, dropping from 9.9‰ in 2013 to 5.4‰ in 2023.[21] Meanwhile, the divorce rate has decreased significantly since the introduction of the cooling-off period, falling from 3.4‰ in 2019 to 1.84‰ in 2023.[22] The decline in both marriage and divorce rates has contributed to a reduced birth rate, which stood at 6.77 per 1,000 people in 2024, as fewer people are marrying or having children.[23] The tougher divorce process may be indirectly contributing to these shifts, influencing decisions around marriage, divorce, and childbearing.
Although the Chinese government is making efforts to simplify the marriage process, such as the recent amendment to the Regulation on Marriage Registration, which aims to make marriage registration easier, the continued difficulties in obtaining a divorce still deter many, particularly women, from entering into marriage.[24] Starting May 10, 2025, couples applying for marriage certificates will no longer need to submit their household registration (hukou) document, instead only requiring their ID cards and signed declarations confirming they are not currently married or closely related.[25] These efforts aim to reduce the barriers women face in marriage, where tradition dictates that men must provide a dowry (caili) to the woman's family before marriage. Additionally, because the woman's household is often controlled by her family, their approval is typically required for the marriage to take place.[26] While these policy changes may encourage more unions, the harsh divorce process remains a significant concern, as it undermines the security and autonomy that many women seek when considering marriage.
Conclusion
The challenges faced by women in obtaining a divorce in China highlight systemic issues within the country’s legal and policy frameworks. The cooling-off period and restrictive litigation practices undermine the principle of marital freedom and disproportionately harm women, particularly those in abusive relationships. Legislative reforms, such as repealing the cooling-off period and requiring judges to adhere to clear legal standards for assessing marital breakdowns, are needed to better protect individuals' rights to divorce.
Glossary
Abandonment – Leaving someone, like a husband or wife, without support or care.
Amendment – A change or update to a law or rule.
Applicable – Something that is related to or can be used in a situation.
Appellate Court – A higher court that checks if a lower court made the right decision.
Arduous – Very difficult or tiring.
Assessment – The act of judging or checking something carefully.
Attitudes – The way people think or feel about something.
Autonomy – The ability to make your own choices or decisions.
Barriers – Things that make it hard to do something.
Bigamy – Marrying someone when you are already married to someone else.
Civil Affairs Bureaus – Government offices that handle things like marriage and divorce.
Cohabitation – Living together like a couple, even if not married.
Compounding – Making a problem worse by adding more problems.
Cooling-Off Period – A 30-day waiting time before a divorce is final, during which either person can stop it.
Criterion – A rule or standard used to judge something.
Declarations – Official statements.
Detrimental – Harmful or bad.
Deter – To stop someone from doing something.
Dictates – Strong rules or orders.
Disproportionately – Unequally or unfairly more than expected.
Disputes – Arguments or disagreements.
Divorce Certificate – The paper that says a marriage is officially ended.
Dowry (caili) – Money or gifts given by the groom's family to the bride's family.
Domestic Violence – Harm or abuse between people in a family or relationship.
Exploited – Treated unfairly or used for someone else’s gain.
Facilitating – Helping something happen more easily.
Fostering – Helping to grow or develop something, like a relationship.
Fraught – Full of problems or worry.
Implications – Possible effects or results.
Impulsive – Acting suddenly without thinking.
Inadvertently – By mistake or without meaning to.
Incompatibility – Not being able to get along or agree.
Initiators – People who start something.
Intimate Partner Violence (IPV) – Abuse between people who are or were in a romantic relationship.
Legislative Reforms – Changes to laws made by the government.
Litigation – Solving problems through the court.
Mandatory – Required or must be done.
Marital Property – Property or money owned by a married couple.
Mediation – A way to solve problems with help from a third person, without going to court.
Misconduct – Bad or wrong behavior.
Mutual Affection – Love or care between two people.
Mutual Consent – When both people agree on something.
Nullifying – Making something no longer valid or legal.
Petition – A formal request, often to a court.
Prevalence – How common something is.
Prolonged – Lasting a long time.
Protective Order – A court order to keep someone safe from harm.
Reconciliation – Getting back together after a breakup or fight.
Reluctant – Not wanting to do something.
Resolution – Solving a problem.
Rigid – Strict and not flexible.
Scenario – A possible situation or story.
Socially Stigmatized – Looked down on by others in society.
Sociology – The study of how people live together in groups.
Stigma – A bad label or shame attached to something.
Systemic – A problem that is part of a larger system.
Tendency – A usual way of acting.
Three-Child Policy – A Chinese policy that lets families have up to three children.
Uncontested – Not argued or disagreed with.
Undermined – Weakened or made less effective.
Unions – Relationships or marriages.
Victimization – When someone is hurt or treated badly by others.
Footnotes/Sources
[1] SJD, Law Reference Librarian, Syracuse University College of Law Library; Research Affiliate, East Asia Program, Syracuse University Maxwell School of Citizenship and Public Affairs.
[2] 女子第五次离婚诉讼成功后：换了工作电话，一觉到天亮感觉好 [After A Woman's Fifth Divorce Lawsuit Success: Changed Her Work Phone Number and Slept Peacefully Until Morning], 澎湃新闻 [The Paper] (December, 10, 2021),
[3] Protection Order, https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=18-USC-680759481-1416750996&term_occur=999&term_src=.
[4] Civil Code of China: Book V Marriage and Family (2020), National People’s Congress (May 28, 2020),
[5] 女子4年8次起诉离婚未果，诉讼离婚为何如此难? [Why Is Divorce Litigation So Difficult? A Woman's 4-Year Journey with 8 Failed Divorce Lawsuits], 南方都市报 [Southern Metropolis Daily] (April 24, 2021), https://m.mp.oeeee.com/a/BAAFRD000020210424474618.html.
[6] Frustration Among Women in China as New Divorce Law Stalls Process, NBC NEWS (March 27, 2021), https://www.nbcnews.com/news/world/frustration-among-women-china-new-divorce-law-stalls-process-n1262065.
[7] Women More Likely Than Men to Initiate Divorces, But Not Non-Marital Breakups, American Sociological Association (August 22, 2015), https://www.asanet.org/women-more-likely-men-initiate-divorces-not-non-marital-breakups/.
[8] Linda Bollovar, Ethan Michelson Highlights Gender Injustice in China’s Divorce Courts, https://news.iu.edu/hamiltonlugar/live/news/34456-ethan-michelson-highlights-gender-injustice-in (July 13, 2023).
[9] Yang, L., Shaw, A., Nyman, T. J., & Hall, B. J., The Prevalence of Intimate Partner Violence and Risk Factors for Women and Men in China During the Shanghai 2022 Lockdown, Epidemiology and Psychiatric Sciences 1 (2024).
[10] Article 1077, Civil Code of China: Book V Marriage and Family (2020).
[11] Id. Article 1079.
[12] Id. Article 1079.
[13] Josh Rudolph, Translation: “The First Woman To Die by the Divorce ‘Cooling-off Period'”, China Digital Times (January 23, 2021), https://chinadigitaltimes.net/2021/01/translation-the-first-woman-to-die-by-the-divorce-cooling-off-period/.
[14] Ethan Michelson, Decoupling: Gender Injustice in China’s Divorce Courts 195 (Cambridge University Press 2022).
[15] Id. at 214.
[16] Id. at 214-215.
[17] Id.
[18] See China NPC: Three-Child policy Formally Passed into Law, BBC (August 20, 2021), https://www.bbc.com/news/world-asia-china-58277473.
[19] Denise, August 19, 离婚冷静期 [The Cooling-Off Period], Little Red Book, https://www.xiaohongshu.com/explore/66c2d55b000000001f018867?xsec_token=AB6fqiq48CrhQUrmMjjnwJlbxP9zL1PUrn4m_GyF5-DuU=&xsec_source=pc_user. [login required].
[20] Id.
[21] 管小红 (Guan Xiaohong), 2024年中国婚姻状况及婚庆消费新趋势：离婚人数稍有下降，结婚人数、结婚率持续下跌多年，有小幅增长，婚礼消费持续升级[图] [China's Marriage Trends and Wedding Consumption in 2024: Slight Decrease in Divorce Numbers, Marriage Rates Show Minor Growth After Years of Decline, and Wedding Spending Continues to Rise (Chart)], 智研观点 [Intelligence Research Group] (September 2, 2024),
[22] Id.
[23] China's Population Falls for A Third Consecutive Year, Reuters (January 17, 2025),
[24] China Revises Regulations to Facilitate Marriage Registration, Xinhua (April 9, 2025),
[25] Registration Rules Eased to Encourage Marriages, China Daily(April 10, 2025), https://www.chinadaily.com.cn/a/202504/10/WS67f71cf2a3104d9fd381e7ee.html.
[26] Id.