The Marriage Law contains two restrictive clauses on the parties' right to claim for divorce. Articles 33 and 34 of the Marriage Law respectively restrict the right to claim for divorce of the spouse of a service member and the husband.
Article 33 of the Marriage Law states: "A claim for divorce filed by the spouse of an active-duty military service member shall be subject to the approval of such military service member, except in case of a material fault of such military service member." In order to protect the legitimate rights and interests of active-duty military service members, the right to claim for divorce of an active-duty military service member's spouse is limited, which is based on the precondition that the service member has no major fault. For the purpose of Article 10 of the Interpretations of the Supreme People's Court on Issues Concerning the Application of the Marriage Law of the People's Republic of China (I), a "major fault" refers to any of the following which results in the alienation of affection of the spouses: (1) Bigamy or cohabitation with any other member of the opposite sex; (2) domestic violence or, maltreatment and desertion of one family member by another; (3) gambling or drug addiction, or any other form of addiction or dependency which remains incorrigible; (4) any major fault resulting in the alienation of affection of the spouses.
Article 34 of the Marriage Law states: "The male spouse may not file for divorce during the female spouse's pregnancy, within one year after the female spouse's giving birth to a child, or within six months after the interruption of the female spouse's pregnancy. The provision of this Article shall not be applicable in case of the female spouse's petition for divorce or if the people's court deems it necessary to accept the male spouse's petition for divorce." This restriction on male spouses' claim for divorce is aimed at protecting the legitimate rights and interests of women and children. But this restriction is not absolute. On the one hand, the female spouse's right to petition for divorce is not restricted; and on the other hand, if the people's court deems it necessary to accept the petition for divorce filed by the male spouse, it may do so at its sole discretion. However, what is "necessary to accept the petition" is not defined by law, and it is up to the people's court to determine whether it is necessary.
