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Divorce can be a complex and emotionally charged process, particularly for international couples. For a Chinese couple going through divorce in England, the legal landscape and cultural context differ very significantly from that in the PRC. This article explores the specific challenges they may face and broadly compares the divorce systems of the two countries.
Legal Framework
England: No-Fault Divorce
In England, the Divorce, Dissolution and Separation Act 2020 introduced a no-fault divorce system. This allows couples to apply for a divorce without having to prove (or even mention) wrongdoing, based solely on the assertion that the marriage has irretrievably broken down. The process is streamlined, allowing for a more amicable resolution. Couples can choose to file jointly or one party can initiate the process, and .(in theory, subject to the slow court system) it typically takes about 20 weeks from application to final divorce, depending on the circumstances. Although in reality almost all parties wait to apply for the final divorce until they have also obtained an order dealing with the finances of the marriage.
China: Fault-Based and No-Fault Divorce
Conversely, China's divorce system has historically operated on a fault basis, requiring one party to prove the other’s misconduct. However, recent reforms in 2020 introduced a no-fault option, allowing couples to file for divorce by mutual consent after a 30-day cooling-off period. This aims to reduce impulsive divorces and encourage reconciliation. Despite these reforms, many couples still face challenges due to the cultural stigma associated with divorce, which can deter individuals from pursuing their rights. Although over time such stigma is reducing, especially in urban areas – this change in societal mindset will take more time.
Cultural Challenges
Stigma and Family Expectations
In both cultures, divorce can carry something of a social stigma, but the implications can be more pronounced in Chinese society. Family expectations and societal pressures can complicate the decision to divorce. Chinese couples may face disapproval from family members, leading to emotional distress during the process. The concept of "family honour" still plays a significant role, and individuals often feel compelled to stay in unhappy marriages to avoid bringing shame upon their family.
In contrast, England has become increasingly accepting of divorce, with a growing recognition of individual autonomy. While some individuals may still experience familial pressure, the societal narrative surrounding divorce has shifted towards understanding and support for personal happiness.
Cultural Differences in Conflict Resolution
Chinese culture tends to prioritise harmony and face-saving, which may lead couples to avoid open discussions about their issues. This can result in unresolved conflicts and a lack of communication, making the divorce process more complicated. The preference for indirect communication can frustrate negotiations, as one or both parties may be reluctant to express their true feelings or needs.
In England, the emphasis is often on assertiveness and direct communication. Couples are encouraged to express their needs and desires openly, which can facilitate negotiations but may also lead to heightened conflict if not managed carefully. Mediation services available in England are designed to help couples navigate these discussions, providing a neutral ground for both parties to express their concerns and reach a resolution. Even before the parties conclude the relationship has come to an end it is not uncommon in England for couples to end counselling or therapy together.
Financial Considerations
Division of Capital Assets
The English court considers various factors, including the length of the marriage, the financial contributions of each party (both monetary and non-monetary), and the needs of the parties and of any children involved. The court has broad discretion, which allows for flexibility but can also lead to disputes over what constitutes a fair division. For example, a long marriage may result in a more equal division of assets, while a shorter marriage might lead to a more individualised assessment, often centred on the needs of the spouse with the weaker finances.
In China, property acquired during the marriage is generally considered joint property, to be divided equally unless otherwise agreed. However, issues can arise when determining the ownership of assets that one party may have brought into the marriage or inherited. Furthermore, with rising property prices in urban areas, disputes over real estate can become particularly contentious, often leading to prolonged negotiations or court battles.
Spousal Support
In England, spousal support (maintenance) can be awarded based on need which in turn is premised on the standard of living during the marriage. Courts assess various factors, including the length of the marriage, the age of both spouses, and the financial resources available (including earning capacity). This can lead to significant financial support for a lower-earning spouse, particularly in long-term marriages. The process aims to ensure that both parties can maintain a reasonable standard of living post-divorce. The law has rowed back from “lifetime maintenance” which was much more common in c2010-16, but disincentivised the recipient spouse from maximising their earning capacity.
In China, spousal support is much less commonly awarded, with courts typically only granting maintenance in special circumstances, such as when one spouse has been the primary caregiver for children or is unable to work due to health reasons. As a result, one party may find themselves in a challenging financial situation post-divorce, particularly if they have been out of the workforce for an extended period.
Child Arrangements and Welfare
Welfare Principle in England
In England, child custody decisions are guided by the principle of the "best interests of the child," as outlined in the Children Act 1989. This includes considerations of the child's emotional, educational, and physical needs. The parties almost always start from the position of shared parental responsibility which means they have to jointly act in respect of certain decisions for example schooling and housing, The courts certainly encourage the parents to reach their own agreement relating to how much time the child spends with each of them and indeed there is the “no order principle” which means the court does not wish to make an order where the parties have an amicable agreement between them. In court proceedings the court almost always supports arrangements that allow the child to maintain relationships with both parents. The process can be collaborative, with parents encouraged to reach agreements through mediation or negotiation before resorting to court.
Custody in China
In China, custody is often awarded to the mother, particularly for younger children, reflecting traditional gender roles and societal expectations. However, there is a growing trend towards more equitable custody arrangements, as courts increasingly consider the child’s best interests and the capabilities of both parents. The legal framework allows for joint custody arrangements, but practical implementation can vary widely depending on local customs and the attitudes of judges. Overall the system favours mothers considerably more than fathers.
Emotional and Psychological Impact
Divorce can have profound emotional and psychological effects on both parties, and these can be exacerbated for a couple navigating a foreign legal system. The stress of legal proceedings, combined with cultural differences and societal pressure, can lead to anxiety, depression, and feelings of isolation.
Access to counselling and support services can be crucial for coping with these challenges. In England, various organizations provide support for individuals going through divorce, including counselling services tailored to cultural sensitivities. For Chinese couples, finding culturally competent support can be particularly important, as it allows them to address their unique needs while navigating the emotional landscape of divorce.
Conclusion
For a Chinese couple navigating divorce in England, the process can be fraught with both legal and cultural challenges. Understanding the differences between the two systems and the impact of cultural norms is crucial for making informed decisions. While England's no-fault divorce system and emphasis on individual rights may offer a more straightforward path, the cultural implications and family expectations rooted in Chinese society can add layers of complexity.
As globalisation continues to bring diverse cultures together, awareness of these differences can foster better communication and understanding, ultimately helping couples through what can be one of life’s most challenging transitions. It is essential for individuals in such situations to seek legal advice, support services, and counselling to ensure that they are equipped to navigate the complexities of divorce effectively.
If you are facing any of these issues, please do not hesitate to contact Aziz Malik - azizmalik@bexleybeaumont.com | 07966 375115
