In 2004, while conducting fieldwork at a local court in southern China, legal scholar He Xin struck up a casual conversation with a judge. On the subject of challenges he faced in the job, the judge grumbled about his law school education, which he characterized as focused more on teaching how the law was written in books, rather than the “law in action.” “Why did no professor mention that, in divorce cases for instance, Chinese courts had made a habit of rejecting almost all first attempts to file?” the judge asked. “It’s not until they file again that the petition will be processed.”

The conversation started He on a decade-long journey through the weeds of Chinese divorce law. The product of these efforts, “Divorce in China: Institutional Constraints and Gendered Outcomes,” was published by New York University Press this year. In the book, He draws on a wide range of empirical evidence from court audits and judge interviews to demonstrate how the enforcement of China’s Marriage Law — the first law passed after the Communist Party of China founded the People’s Republic in 1949 — has diverged from its original intention of protecting women’s rights to marry and divorce. Responsible for handling cases efficiently and maintaining social stability, judges often choose to broker a deal that can be accepted by both parties, rather than issue a ruling that holds one or the other responsible. In practice, this has led to drawn-out legal proceedings, the trivialization of serious problems like domestic violence, and an inability or unwillingness to protect women’s custody rights.

Globally, recent decades have seen renewed interest from scholars on the “law in action,” a legal theory that calls on students of the law to look beyond written statutes to see how they are applied. In 1974, the legal scholar Marc Galanter published his influential essay, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” which questioned the supposed neutrality of the American legal system. Galanter argued that “repeat players” — experienced participants in the legal process — enjoy an advantage in litigation over inexperienced “one shotters.” And often, as Galanter notes, this works to the advantage of entrenched, powerful institutions with the resources and experience needed to manipulate the legal system in their favor.

He Xin found similar patterns in Chinese divorce cases. But in the context of China’s patriarchal culture, it is men who are often the “haves” and women who are the “have-nots.” In this case, men’s advantage lies not in their legal expertise, but in their bargaining power. He found that, since the early 2000s, courts have primarily been assessed both on the quality of their rulings and on their efficiency. The former is measured based on the number of appeals, among other factors; the latter is measured based on the number of cases they resolve. Together with the government’s emphasis on social harmony and avoiding social conflict, these criteria have led judges to generally dismiss divorce petitions the first time they are filed.

If a petition is filed again, judges often push a couple to enter mediation as a way to avoid complex rulings involving the distribution of assets or which could result in retaliation — or an appeal — by the husband. (Some 70% of divorce petitions in China are filed by women.) But because mediation agreements require agreement between both parties, that means a husband and wife must come to the bargaining table, even in cases involving accusations of domestic or sexual violence.

The resurgence of traditional family values in Chinese discourse over the past decade has also made divorce even harder to pursue. This year, lawmakers implemented a controversial 30-day “cool-off” period for mutually agreed upon divorces, which may have contributed to an abrupt drop-off in divorces in the first quarter of 2021.

Earlier this month, the Hong Kong-based He sat down with Sixth Tone to discuss the state of Chinese divorce court, why the practical effect of the cool-off period might be overstated, and why even conscientious judges struggle to make a difference.

This interview has been edited for brevity and clarity.

Sixth Tone: You began studying divorce litigation in China 15 years ago, at a time when China was relatively open to divorce, both socially and politically. Prior to the 2000s, how difficult was it to get a divorce in court in China, and what were some of the historical factors that made the right to divorce difficult to access?

He Xin: The 1950s, after the People’s Republic introduced its Marriage Law, was a period when the freedom to marry or divorce was highlighted in China. But as the 1950s and 1960s wore on, the government began to factor the stability of the family into its evaluation of socialist development: We were working together to build socialism, and that goal couldn’t be achieved if families fell apart. So, we have the Marriage Law on the one hand, and the state’s shifting policy objectives on the other. This led to great difficulty in getting divorced: Divorce petitioners couldn’t get to the courthouse door without the consent of their work units or villages. And even when such consent was granted, the courts would try to mediate to avoid a divorce. Empirical studies have found that, as late as the 1980s, divorce remained extremely difficult.

Sixth Tone: In recent years, we have seen a revival of traditional family values as China confronts falling birth numbers and surging divorce rates. The new Civil Code, which came into effect this year, also introduces a controversial one-month “cool-off period” for couples filing for divorce. Will these trends change the way judges think and decide in divorce cases?

He: The influence should be limited. The cool-off period is enforced by the Civil Affairs Bureau, which handles uncontested divorces, whereas judges are working on contested divorces. The real issue for contested divorces remains the system’s institutional constraints: Existing arrangements and workarounds within the judicial system that encourage judges to do things like deny initial divorce petitions and make people file again. In other words, we have already had a “cool-off period” in practice. On the other hand, it is also unlikely we’ll see a return to the pre-1980s era when couples needed their work units’ permission to get a divorce, even with officials pushing traditional family values.

Sixth Tone: As for mediation, you classify it as part of the “institutional constraints” that limit access to divorce in China. Its use has persisted, if not expanded, since the 2000s. What’s the reason judges prioritize mediation to resolve divorce cases?

He: The use of mediation is largely due to concerns regarding social instability. As a mediation agreement signed by both parties cannot be appealed, judges see it as a more efficient and permanent solution to a dispute that could otherwise escalate into a threat to social harmony. In this regard, I do think that the state sees mediation as a success. However, it also requires women’s rights be sacrificed. Women often have to give up their rights to child custody and property in exchange for their husband’s consent to a mediated end to a marriage. Domestic violence accusations are also typically dropped, as they are usually met with fierce denials from the husband.

Sixth Tone: As you suggest in another new book, “The Researcher in the Street,” the concept of “rule of law” as we know it is gendered. What are the implications of your research on divorce for other gender-related litigation, such as sexual assault or inheritance cases?

He: The majority of sexual assault and discrimination cases will never go to court. Not only is the legislation biased against women, but so is the investigation process. Take allegations of domestic violence and sexual assault within marriage, for example. First, evidentiary standards remain too high in cases of domestic violence and sexual assault. Second, because judges see their job as closing a case — ideally with a mutually acceptable mediation agreement — they tend to ignore accusations of assault, which could help women win their case in court, but which are also sensitive and can complicate the mediation process. So again, women are more likely to compromise.

Sixth Tone: Even if a seemingly neutral legal procedure is provided, the result it produced can be quite different for the “haves” and “have-nots” – that’s what Marc Galanter’s classic essay tells us.

He: Yes. When a couple arrives at a Chinese courthouse, the man tends to be in a stronger position. Whether it’s in terms of resources, money, social standing, or political power, women have a weaker ability to navigate the judicial system. So it becomes a gendered problem, and not because the law itself is sexist. If there’s a case in which the woman is in the stronger overall position than the man, then the law will naturally protect her interests.

This is a difficult problem, but I don’t think you can push the blame back onto society. It’s important for courts to establish equal protections for men and women. And if you look at the letter of the law, a lot of progress has been made in this sphere. Now it’s about making sure what’s written is put into action.

Sixth Tone: What influence do you estimate the recent rise of feminist ideas has had on Chinese courts?

He: I’m not sure how much of a difference they’ve made in court. Certainly, these ideas have advanced judges’ awareness of the importance of protecting women’s rights, but that influence is indirect. Official assessments of their performance are far more direct.

Sixth Tone: You mention in your book that just having more female judges doesn’t guarantee results in favor of women.

He: Exactly. There are judges who haven’t realized gender bias is a problem, but even for those who have, the system is too overwhelming for them to make decisions based on their own reading of legislation. Even if a judge does grant a divorce petition in the first instance, that decision can be challenged on appeal and thrown out. Progress will be limited to individual cases and won’t be applied systemically unless the system adopts different expectations of judges’ work.

Sixth Tone: What do you think is the key to reforming the assessment of judge performance?

He: In divorce cases, the problem is that judges are shouldering too much responsibility. If a litigant dissatisfied with the court’s decision resorts to violence, whether against the other party or against themselves, the judge will be held responsible for the resulting social instability. As a result, judges take an exceptionally cautious approach to divorce cases.

Sixth Tone: Researching China’s judicial process isn’t easy, given the obstacles for “outsiders” seeking to access trials and case materials. What’s the biggest lesson you learned during your fieldwork?

He: Let the judges know who you are and what you will do with the case materials. Instead of asking your interviewee to offer something or expecting them to just open up to you immediately, open yourself up to them. Your research will be easier to carry out if you have won their trust with sincerity and transparency. It takes time.

Editor: Kilian O’Donnell.

(Header image: Malte Mueller/FStop/People Visual)