The Chinese Empire

: Japanese Fairy Tales

A treatise on the marriage and divorce laws of the world would be

incomplete without a chapter dealing with the law of the most compact

nationality in history.

Chinese law is the growth of many centuries and is based on immemorial

custom, but with all its antiquity and wealth of precedent, it has not yet

passed the system of exacting testimony from witnesses by physical


The first evidence of civil law to be found in Chinese history or

tradition is the recognition and regulation of the status of marriage. Its

fundamental principle is parental authority.

Though in a sense systematic, the laws of China are not as yet in a

concentrated or scientific form. Under the present dynasty the collection

of laws which is applied by the courts is called Ta Ch'ing Lii Li.

Two things are to be said in favour of the laws of China--the first being

that every Chinese is within the law, and that the person is considered of

more importance than property.

MARRIAGE.--A Chinese is not permitted to have more than one wife. He may,

however, in addition, keep concubines, or "secondary wives." Both wives

and concubines have a legal status.

The wife is considered to be a relative of all her husband's family, but a

concubine is not so considered. It is an offence for a man to degrade his

wife to the level of a concubine, or to elevate a concubine to the level

of his wife.

The consent of the parties, which is the first requisite of a valid

marriage in Christendom, is legally of no consequence in China. It is the

consent of the parents of the respective parties which is material and


The consent of the father of the woman is sufficient, and if he is dead

then the mother may give the necessary consent.

The preliminary stages of a Chinese marriage are elaborately formal. It is

the duty of the families of the intended bride and bridegroom to ascertain

whether or not the parties have the capacity to conclude marriage. Certain

introductions and exchange of social courtesies follow. If everything

appears satisfactory the parties acting on behalf of the intended bride

send a note of "eight characters" to the parties acting in behalf of the

prospective bridegroom, which note is practically a proposal of marriage.

If the terms of the proposed marriage are agreed upon the next thing is

for the representatives of the parties to draft and execute the articles

of marriage.

The courts will hold it to be a marriage if the betrothal is regular, even

if there is no consummation.

It is essential to a legal marriage that the written consent of the woman

be obtained; it is not sufficient that the woman herself gives free


Fraud makes the marriage a nullity. In his book, "Notes and Commentaries

on Chinese Criminal Law," Mr. Ernest Alabaster tells of the case of "Mrs.

Wang." It appears that an old reprobate, knowing that the girl's parents

would refuse him because of his ugliness of face and character, sent a

handsome young nephew to represent him in the marriage negotiations. The

impersonation brought about the signing of the contract, and the old man

secured possession of the bride. Soon after the wedding he ill-treated his

young wife and one night she strangled him. The court decided that the

woman had committed an unjustifiable homicide and that the victim was not

her husband.

IMPEDIMENTS.--Intermarriage is forbidden between ascendants and

descendants and between kinsmen by consanguinity or affinity up to the

fourth degree.

Marriage is also forbidden between persons having the same Hsing, or


A free person cannot contract a valid marriage with a slave.

A mother and daughter must not marry father and son.

Marriage is absolutely forbidden to a Buddhist or Taoist priest.

An official must not marry a wife or buy a concubine within his


It is unlawful for a person of official rank to take as his secondary wife

or concubine an actress, singing woman or a prostitute.

No one must marry a female fugitive from justice.

Marriage of a deceased brother's widow is against the law.

It should be remembered that it is a criminal offence to contract an

invalid marriage. For example, not very long ago a prince of the Imperial

family purchased a singing girl as his secondary wife or concubine. The

marriage was declared null and he was sentenced to receive sixty blows for

attempting to contract an illegal secondary marriage.

WIDOWS.--A widow or divorced woman can contract a new marriage, but she

must first obtain consent of her parents and wait until the customary

period of mourning is completed.

DIVORCE.--As an institution divorce is almost as ancient in China as

marriage. Marriage is not considered as in any respect a religious

contract, but as a status created principally for the comfort of man and

the continuance of the race. As woman is considered an inferior creature

to man she has not the same rights in or out of a court of law. However,

she can obtain, against her husband's will, an absolute divorce on the

following grounds:

1. Impotency. If her husband is unable to perform the sexual act a wife

can compel him to grant her a deed of divorcement.

2. If a man sells his wife to another the woman is ipso facto divorced

from both men.

3. If a man induces his wife to become a prostitute, or accepts her

earnings as such, the wife is entitled to a decree of absolute divorce.

We can find no other causes which entitle a woman to a divorce from her

husband. His adultery, cruelty, abandonment, neglect or drunkenness

furnishes no ground for a dissolution of the marriage.

For a husband divorce is very easy. The so-called "seven valid reasons"

enable any man so inclined to practically discard his wife when it pleases

him. The seven "reasons" or causes are:

1. Talkativeness.

2. Wantonness.

3. Theft.

4. Barrenness.

5. Disobedience to parents of husband.

6. Jealousy.

7. Inveterate infirmity.

The last of the seven reasons permits a man to get rid of a wife who is

incurably ill or infirm.

MUTUAL CONSENT.--If husband and wife mutually agree upon divorce the

courts, by ancient custom, will ratify their agreement. Although the

Chinese law does not consider the consent or non-consent of the parties as

of any consequence in creating the status of marriage, it, by a peculiar

process of logic, permits them to end the relationship whenever they

mutually please so to do.

Perhaps one can easier understand the marriage and divorce laws of the

Chinese Empire by remembering that all Chinese laws are supposed to follow

the instincts of the people (Shun po hsing chi ching).

GENERAL OBSERVATIONS.--The present laws and customs of China are but

little changed from the time of the Tang Dynasty, which reigned nearly

thirteen hundred years ago.

Then, as now, a poor man who finds himself unable to support his wife,

may, if she has no parents to take her back, sell her to his richer


The judicial machinery of the Chinese Empire is the elaboration of

centuries of customs and precedents. In the first instance parties seeking

legal redress apply by complaint to the lowest court having jurisdiction

within the district of their domicile. If dissatisfied with the decision

an appeal can be made first to the District Magistracy, then to the

Prefecture, and after that to the Supreme Provincial Court. If the

questions involved are sufficiently important a further appeal may be

prosecuted before the Judiciary Board, which sits in Peking and is the

highest judicial court in the Empire.

In theory a defeated suitor can appeal from the Judiciary Board to the

fountain of law and justice, His Imperial Majesty, the Emperor of China,

but there are few cases, according to the record, which have gone so far.

We are of the opinion that Chinese law will never approach a scientific

system until China recognizes the necessity and value of having

professional advocates and jurists to point out the way to better things.