Sexual Orientation, NOT a Legal Ground for Divorce

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Sexual Orientation, NOT a Legal Ground for Divorce

author/ LiDan

 Family Law Team of Guantao Lawfirm,

 Shanghai,China 

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May 20^th, 2017, an online love date, (the pronunciation of 520 similar to the Chinese pronunciation of “I love you”.)  a group of parents, mostly mothers, gathered the the well known matchmaking corner in People’s Square to find their gay son or lesbian daughter a partner. Brave are those parents who not only accept the fact that their children are homosexual but let the fact known to the outsdide world which used to be considered as a huge disgrace to the whole family, even though they still believe that their children shall find a partner at the marriageable age. Online posts to support those parents were soon deleted but the debate remains.

China is envolving, sexual orientation is no longer a taboo topic. Still, openly admitting you are homesexual needs great courage. 

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In China, a data is widely used and publicly acknowledged: the number of gays is 20,000,000 who are sexually activce in China, among whom, 80% have entered into marriage or have stayed in marriage. Around 16,000,000 females marry males who are either homosexual or bisexual.

(From http://news.sina.com.cn/c/nd/2016-04-12/doc-ifxrcizu4006759.shtml)

A socialogical survey which is conducted after the writer’s three year contiuous visiting the group consisting of gay men’s wives corroborates the wives real dilemma; more than 90% of the wives have suffered domestic violence, 30% of them have no sexual life in the marriage but only 30% of them choose to divorfce.

(From http://news.sina.com.cn/c/nd/2016-04-12/doc-ifxrcizu4006759.shtml) 

That means a large part of the gays choose to get married to cover their own sexual orientation. The reasons for the gay wives’ choosing to stay in marriage vary, some for the kids, some for the family’s face saving, some because of economic dependence and etc.

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I personally have encountered two gay wives, one was caught in bed with her colleague by the gay husband who threatened to disclose the affair to their working unit and the colleague’s wife so as to keep the wife to stay in marriage. I lost the touch with her after the her consultation and it remains unknown whether she has got the divorce but up till now, I still remember the pain in her eye and her the confusion on her face: “Why, lawyer Li, why he just can not let me go?” 

A question she repeated several times and a question I have no answer so far. She had been living a sexless life for a whole three years and is a living widow. She had asked for divorce for several times but were refused. She had believed the affair at least gave the husband a reason to let her go but it turned out to be a spell on her. 

Another gay wife is a client of mine, who discovered the gay husband’s sexual orientation by accidentally bumping into her gay husband’s online chatting with his boy friend. 

What surprises me most is that the husband filed for a divorce, acknowledging that he was a gay, which shocked the judge. When I asked him why choosed to get married since he was a gay, he said he had no idea only after the marriage. 

Oviously, he used the marriage as a test for his own sexual orientation which completely outraged my client. 

Pity is that such act does not consistitutes the fault under Chinese law which means my client can never get any compensation because of his intentional concealment of his sexual orientation. My client chose to stay in marriage for the time being as she needed some time to raise the money to buy out the apartment both she and her gay husband had jointly bought and she got what she wanted even if the husband openly acknowledged his sexual orientation so as to get a divorce, for sexual orientation is not a legal ground for a divorce. 

My client finally got a divorce and she is happy to get out of the marriage which exists in name only.

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In 2016, a gay couple filed a lawsuit against the civil affairs bureau who refused to get their marriage registered and the couple lost the case as expected which was a first case in which the gay couple openly pursuited their marriage right as a gay couple. 

In May, 2017, Tai Wan becomes the first area in Asia who legalizes the marriage of the same sex. 

Yes, marriage of convenience is still popular among gay circle. Yes，the Chinese law only acknowledges the marriage between a male and a female. But changes do take place for better or worse.

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