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Last week we analysed the changes to marriage registration regulations contained in the draft Marriage Registration Regulations proposed by the Chinese central government. The two most notable changes are the 30-day reflection period before divorce and the obligation to inform the future spouse of any serious illness before the wedding. Less important include the abolition of household registration for marriage certificates and the implementation of “national access”, i.e. the ability to register a marriage anywhere in mainland China.
The purpose of creating a “30-day reflection” is very clear. It provides spouses with an opportunity to reflect and communicate with each other. In this process, both of you can review the good times together, think about the problems in your marriage and try to find solutions.
Another important change included in the proposed law is the notification of serious illness. According to Article 12 of the law, a person with a serious illness must inform his or her future spouse of his or her condition before the wedding. If he or she fails to do so, the marriage can be annulled. The introduction of this provision not only strengthens the right of both parties to know, but also increases the transparency and equality of marriage.
This change may seem simple, but there are several aspects that must be considered.
Firstly, from the wording of the Bill alone, if a man is infertile, he is obliged to inform his wife before marriage, and if legal proceedings are to be brought, the burden of proof is on him. So in court, if a man wants to prove that he complied with the law, he must prove that he informed his wife of his infertility before marriage. So how does he prove that he informed the woman in time? Does the lady have to sign a document to prove this? Does the moment a man tells his wife about his infertility need to be recorded? Or do you need witnesses?
Secondly, the Draft does not clearly define the concept of “serious illness”. No specific criteria are provided for the definition of “serious illness”. Currently, in mainland China’s legal practice, the decision to characterize an illness as “serious” is referred to the courts, and the basis for this decision is the Maternal and Child Health Care Law of the People’s Republic of China. However, due to the limited provisions of the Maternal and Child Health Care Law on the scope of prenatal mental health disease screening, it only mentions “schizophrenia, manic depression and other serious mental illnesses”, and does not stipulate about anxiety and depression, persecution and other diseases that may have a negative impact on the spouse. There is some doubt as to whether these last diseases are considered serious diseases in the proposed law.
According to the objective of the proposed law, future spouses should know each other’s physical and mental conditions before getting married. According to this view, any illness that may affect the couple’s life must be disclosed to each other in advance. However, the interpretation of the law may be subject to different analyses, and interpreting the law according to the original objective of the proposed law is only one way to do so. Since there are many ways to interpret the law, whether it should be interpreted in accordance with the original purpose is another question.
Some people suggest listing all the diseases that are considered “serious”; others believe that it is difficult to provide a uniform standard due to the large number of types and the complexity of the circumstances. Both arguments have their merits. Obviously, this system can only be gradually clarified and improved through legal practice.
Third, in mainland China, pre-marital health examinations are no longer mandatory since 2003. To some extent, requiring these examinations could solve the problem. But since the system is no longer implemented, it will be up to the couple to find other ways to deal with it. Neither the Hong Kong nor the Macau Special Administrative Regions stipulate that future spouses must inform each other of any “serious illnesses” before the wedding, nor do they require pre-marital medical examinations. In these regions, it is questionable whether a marriage can be annulled if a spouse is found to have a serious illness only after the marriage.
Other changes include the removal of household registration for marriage certificates and free “national access”. The purpose is clearly to facilitate marriages. In the past, marriages had to be registered in the place of origin. Under the proposed law, weddings can now be held anywhere in mainland China. If compared with the 30 days of reflection required before divorce, it is no wonder that netizens believe that one of the functions of the law is to help people maintain their marriages. It is still true that it is easier to get married than to get divorced.
The law requires that one must inform the future spouse of any serious illness he or she suffers from, but it is difficult to regulate openness and trust. In a marriage, both parties should be open and honest with each other. Whoever is sick tells their problem, and it is up to the other party to accept it. This is a sign of trust. Openness and trust are essential elements for a successful marriage and an effective way to solve the problem of the obligation to inform the other party of a serious illness.
Legal Advisor of Macau Jazz Promotion Association
Associate Professor, Faculty of Management Science, Macau Polytechnic University
Blog: http://blog.xuite.net/legalpublications/hkblog
Email: legalpublicationsreaders@yahoo.com.hk
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