Revised February 13, 2022
Michelson’s analysis of almost 150,000 divorce trials sheds light on routine and egregious violations of China’s own laws upholding the freedom of divorce, gender equality, and the protection of the physical security of women. Using “big data” computational techniques to scrutinize cases decided between 2009 and 2016 from all 252 basic-level courts in two Chinese provinces, Henan and Zhejiang, Michelson reveals that women have borne the brunt of a dramatic intensification since the mid-2000s of Chinese courts’ decades-long practice of denying divorce requests. This book takes the reader upstream to the institutional sources of China’s clampdown on divorce and downstream to its devastating and highly gendered human toll, showing how judges in an overburdened court system clear their oppressive dockets at the expense of women’s lawful rights and interests. This book is a must-read for anyone interested in Chinese courts, judicial decision-making, family law, gender violence, and the limits and possibilities of the globalization of law. This title is also available as Open Access on Cambridge Core.
(Cambridge University Press submitted the first paragraph of Chapter 1 as the abstract for this book’s Library of Congress catalogue record. Although I did not write it as an abstract, I think it actually works pretty well as one.)
Not long after immersing myself in this project, I began to visualize Sisyphus going to divorce court. His fate is an apt metaphor for the protracted and sometimes futile uphill struggle of China’s mostly female divorce plaintiffs, whose petitions will almost certainly fail at first—even in cases involving domestic violence, regardless of the severity of the allegations or the strength of the evidence. Many plaintiffs give up on litigation, either resigning themselves to staying married to their abusers or pursuing divorce through civil government channels outside the court system. Of those who do return to court, most will eventually succeed, albeit sometimes only after multiple attempts and long delays.
Chapter Abstracts and Supplementary Material
I prepared far more material than could fit in the book. Throughout the book, I refer readers to “supplementary online material” (at https://decoupling-book.org, which redirects to this site) for more details and additional case examples. They can be found by clicking links below (only titles of chapters with supplementary material are hyperlinked).
Chapter 1: Sisyphus Goes to Divorce Court
ABSTRACT: This book chronicles and explains Chinese judges’ tendency to deny divorce petitions. This tendency has intensified beginning in the mid-2000s in a process I call the judicial clampdown on divorce. Most divorce petitions in China are filed by women, and about one-third include allegations of domestic violence. In their determination to deny divorce petitions, judges have generally ignored plaintiffs’ allegations of marital abuse. In so doing, they have subverted China’s domestic laws and international commitments protecting gender equality and women’s physical security. This book is about decoupling in two senses of the word. Decoupling, the book’s title, refers both to the decoupling of married couples and to the decoupling of legal practices from legal promises. This chapter zooms in to the organization and operation of the basic-level courts tasked with handling China’s divorce litigation, as well as to the involved actors, including litigants, judges, and legal advocates. It also zooms out from courts and litigation by situating them in the broader landscape of divorce processes.
Chapter 2: The Right to Decouple
ABSTRACT: This chapter introduces China’s formal legal divorce rights, standards, and procedures, which align closely with global norms concerning the protection of gender equality and women’s physical security. China’s legal standard for divorce is the breakdown of mutual affection, which can be established on the basis of irreconcilable differences, physical separation, or statutory wrongdoing such as domestic violence. Only exceedingly rarely, however, have Chinese judges granted divorces on fault-based grounds. In recognition of difficulties abuse victims often face proving their allegations of domestic violence, Chinese law relaxes evidentiary standards in domestic violence cases. Judges nonetheless tend to disaffirm domestic violence allegations on evidentiary grounds. Defendants are absent from a sizeable proportion of divorce trials because they choose to opt out or because their whereabouts are unknown. Judges are more inclined to grant divorces when defendants cannot be found. Judges rarely grant divorces when defendants withhold their consent to divorce. They typically treat a defendant’s unwillingness to divorce as proof that mutual affection has not broken down.
Chapter 3: The Divorce Twofer: Why Court Behavior Is Decoupled from the Right to Decouple
ABSTRACT: By routinely denying divorce petitions when plaintiffs file them for the first time, judges extend a judicial process of a few months into a litigation repeat that typically drags on for over a year. When plaintiffs return to court for another try, judges tend to grant their refiled petitions. I refer to this routine practice as the “divorce twofer” because it rewards judges in several ways. This chapter offers explanations for the divorce twofer and why litigants in general and female plaintiffs in particular have borne the brunt of it. The divorce twofer conserves judicial resources; judges save considerable time and effort by denying divorce petitions. Heavy caseloads and performance evaluation systems that reward judicial efficiency have thus incentivized judges to deny first-attempt divorce petitions. Nationwide ideological calls to preserve marriage have further reinforced judges’ incentives to deny first-attempt divorce petitions and provided official justification for their tendency to do so. Enduring patriarchal cultural values help explain why judges have clamped down harder on women than on men, which is to say why the divorce twofer disproportionately targets women.
Chapter 4: Studying Judicial Decision-Making: Court Decisions in Henan and Zhejiang
ABSTRACT: Many Chinese courts started posting their written decisions online in the 2000s, and all have been required to do so since 2013. This book is the product of a computational (a.k.a. “big data”) approach to analyzing a collection of documents far too large to code manually. In this chapter I document the automated process of collecting and coding almost 150,000 written divorce decisions from two Chinese provinces, Henan and Zhejiang. Despite scholarly concerns about the possibility of systematic disclosure bias, I demonstrate that online collections of Chinese court decisions are well suited for the study of adjudicated divorce outcomes prior to October 1, 2016, when the Supreme People’s Court prohibited the online publication of divorce decisions. I describe my method of constructing and assessing the accuracy of the two key outcome measures at the heart of this book: the court ruling to grant or deny the petition and the court ruling to grant or deny child custody. I then describe how I constructed and assessed the accuracy of the key measures I use to analyze judicial decision-making in general and gender disparities in judicial outcomes in particular.
Chapter 5: “Many Cases, Few Judges” and the Vanishing Three-Judge Trial
ABSTRACT: In this chapter I demonstrate that Chinese civil justice became increasingly perfunctory as a response to swelling caseloads. As the volume of litigation mushroomed beginning in the mid-2000s, the population of frontline judges handling cases remained stable and even declined after a judge quota reform imposed a hard cap on the number of judges a court could appoint. Aggravating the challenge of appointing judges in sufficient numbers has been the challenge of retaining judges. Insofar as judges could not be recruited in greater numbers and court cases multiplied relentlessly, judicial efficiency gains became the only way out of the problem widely referred to as “many cases, few judges.” China’s clogged courts innovated by deputizing assistant judges, expanding the scope of the simplified procedure, and increasing lay assessor participation. Courts in Zhejiang adopted these coping strategies earlier and more aggressively than courts in Henan. The efficiency gains for courts and judges have come at the expense of due process for litigants, particularly female litigants.
Chapter 6: Tracing the Origins of the Divorce Twofer to Heavy Caseloads
ABSTRACT: This chapter picks up where the previous one left off. Included in courts’ toolkit of coping strategies to the problem of caseload pressure is the routine practice of denying first-time divorce petitions and granting them on subsequent attempts. The divorce twofer is a pressure release valve for courts. Denying divorce petitions helps judges clear their dockets more efficiently and thus improves their performance evaluation scores. By enhancing judicial efficiency, the divorce twofer greases the wheels of justice and helps judges clear their dockets, often at the cost of injustice. The benefits judges gain from denying first-attempt petitions are clear: less onerous pretrial and trial formalities, shorter trials, and briefer decisions. China’s judicial clampdown on adjudicated divorce is, more than anything else, courts’ response to rapidly expanding volumes of litigation. China’s ideology of family preservation, which has deep roots but which has been further elevated since 2012, helps enable and justify the judicial clampdown on divorce.
Chapter 7: How Judges Gaslight Domestic Violence Victims in Divorce Trials
ABSTRACT: Domestic violence allegations were pervasive in divorce litigation and unimportant to judges. The viciousness of some of the incidents of marital abuse women reported in their divorce petitions boggles the mind. And yet, judges almost uniformly disregarded domestic violence allegations. They took advantage of legal ambiguity to gaslight female plaintiffs whose divorce petitions included claims of domestic violence. Judges sidelined plaintiffs’ claims of spousal wrongdoing by holding that mutual affection had not broken down and that reconciliation remained possible. Even in the face of horrific and often well-documented claims of domestic violence, judges justified their adjudicated denials of divorce petitions by citing the voluntary nature and duration of litigants’ courtship, the duration of their marriage, the fact that they produced children, defendants’ apologies for abusing plaintiffs, and, above all, defendants’ unwillingness to divorce.
Chapter 8: Divorce Denials: Judicial Discourse and Judicial Decision-Making
ABSTRACT: The first part of this chapter is devoted to a computational analysis of judicial discourse in written court decisions. Chinese judges ignored domestic violence allegations in the process of denying divorce petitions. When often justified doing so on ideological, moral, and therapeutic grounds. Although divorce litigation was rife with allegations of domestic violence, they had no discernable effect on the character of judicial discourse in court holdings. Regardless of domestic violence claims, judges focused on couples’ reconciliation potential and provided paternalistic and patronizing relationship advice. Judicial discourse was gendered insofar as judges directed such gaslighting strategies towards women more than towards men. The second part of this chapter is devoted to an analysis of judicial decision-making: (1) the extent and nature of gender inequality in case outcomes, and (2) the effect of domestic violence allegations on case outcomes. Judges took the claims and interests of men more seriously than those of women. Domestic violence did not move the needle toward divorce. Victims of domestic violence, mostly women, were revictimized by judges who ignored their claims.
Chapter 9: Fight or Flight: Consequences of the Judicial Clampdown on Divorce
ABSTRACT: China’s judicial clampdown on divorce has diverted marital disputes into the criminal justice system. When judges failed to protect battered women, domestic violence sometimes escalated to criminal battery or homicide. When judges ignored and subverted the law by routinely denying divorce petitions, divorce cases sometimes transformed into criminal cases after abusive husbands murdered their wives and after abused wives, in self-defense, murdered their abusive husbands. Endemic failure on the part of courts and the police to uphold their legal mandates to protect abuse victims has cost lives. So far, China’s criminal courts appear not to recognize domestic violence as a sufficiently mitigating factor to merit probation, much less acquittal, in homicide cases. In trials of women charged with killing their abusive husbands, criminal courts have steadfastly eschewed the concept of “battered woman syndrome,” and have therefore been averse to acquit—or even to sentence to probation in lieu of prison time—the very women they affirmed to be victims of domestic violence. Nonetheless, reforms introduced in 2015 have clearly turned the tide toward leniency in sentencing.
Chapter 10: Possession is Nine-Tenths of the Law: Why Abusive Men Gain Child Custody
ABSTRACT: Physical possession is among the legal standards Chinese judges can apply in child custody determinations: whether a change in the status quo would undermine the best interests of the child. Because children in rural areas overwhelmingly live with their fathers or paternal grandparents, and because judges overwhelmingly apply this physical possession standard, judges’ child custody orders are entirely consistent with the adage, “Possession is nine-tenths of the law.” Women who fled domestic violence often left their children behind in the possession of their abusive husbands. Because defendants, simply by withholding consent, could so easily prevent courts from granting divorces, women frequently bargained away their child custody rights in exchange for their freedom. In both scenarios, courts deferred to the patriarchal order by privileging fathers’ child custody claims. Even when there were compelling and legally justifiable grounds for rejecting the status quo on the grounds that it posed a safety risk to the child, judges nonetheless tended to apply the physical possession standard. Judges had no apparent hesitation to grant custody to perpetrators of domestic violence.
Chapter 11: Quantitative Patterns in Child Custody Determinations: Sons to Fathers, Daughters to Mothers, Abusers Rewarded, Victims Punished
ABSTRACT: Quantitative analyses of child custody determinations reaffirm and build on findings reported in previous chapters. Just as domestic violence allegations did not increase the likelihood that courts granted women’s divorce requests, they likewise did not increase the likelihood that courts granted child custody to marital abuse victims. Owing to the dominant rural practice of patrilocality, fathers were more likely than mothers to have physical possession of their children. As a result, judges rewarded rural men with child custody for beating their wives. Judges supported the patriarchal family in additional ways. Rural courts tended to grant custody of only-sons to fathers. In rural areas, mothers’ best chances for child custody came from multiple children and from only-daughters. In cases involving siblings, courts frequently split them up between the parents. In cases of mixed-sex siblings, courts typically granted custody of sons to fathers and custody of daughters to mothers. Fathers’ advantages in child custody determinations were limited to rural areas, which accounted for most child custody determinations. Urban courts, by contrast, favored mothers over fathers.
Chapter 12: Conclusions: Assessing the Impact of Law by Observing Judicial Behavior
ABSTRACT: In addition to summarizing the key findings in this book, this concluding chapter draws also out their theoretical and methodological implications. From a theoretical standpoint, marital decoupling in China sheds light on institutional decoupling—the extent to which and reasons why legal systems that bear the symbolic hallmarks of global legal norms subvert them in practice. Michael Lipsky’s theory of street-level bureaucracy helps illuminate how and why Chinese judges created bottom-up legal and policy substitutes for the top-down domestic laws and international legal commitments they sidelined and subverted. From a methodological standpoint, macro-comparative cross-national research designed to assess the local impact of the global diffusion of law and rights are limited in their ability to do so if they cannot observe judicial decision-making and the institutional forces shaping it.