'No Malicious Incidents': The Concern for Stability in China's Divorce Law Practice

Abstract

Based on participant observation and in-depth interviews with judges, this article demonstrates the significant role of concern for social stability in China’s divorce law practice in highly contested and potentially explosive cases. This is evident in the current use of mediation procedures. Since the judge is held responsible for keeping the parties in check, the concern for social stability dominates proceedings. The legal criterion of ‘the breakdown of mutual affection’ is eclipsed by the political principle of ‘no malicious incidents’. This emphasis on maintaining stability, however, paradoxically reproduces social instability because it incentivises violence in the domestic sphere. It also reinforces gender inequality. This study suggests the need to reflect upon the appropriate role of the judiciary in divorce proceedings and the tenuous boundary between law and politics in contemporary China.

Keywords: divorce, court, China, judges, social stability, mediation, malicious incidents, gender inequality, politics, protest, violence

JEL Classification: K00, K10, K36, K4, K40, K41, K42