“Behind the closet are those wives imprisoned in an unhappy marriage...” A Chinese woman used her personal blog to describe life as the wife of a gay man, before her husband decided finally to come out.
According to a report conducted in 2005 by Liu Dalin, a prominent sexologist, 90% of Chinese homosexual and bisexual men get married. According to a conservative estimate there are more than 10 million Chinese women who are married to gay men.
But these same women will encounter a legal quagmire when they try to free themselves from an unhappy marriage by getting divorced. Last week, a national discussion was triggered on the topic after Beijing’s First Intermediate People’s Court released a study of divorce cases involving homosexuality that laid out the current predicament for this large group of women.
The report pointed out that there is no law in China today that protects the rights and interests of the heterosexual spouse of a homosexual. Judges are thus put in an awkward position when it comes to divorce cases requested by these spouses.
According to the study, this situation in China comes from the fact that homosexuality is still considered a highly sensitive topic. The majority of the public does not accept it, while conservative judges are unwilling to even acknowledge it in forms of verdicts.
“One party likes persons of the same sex while the other party likes the opposite sex. The chance for the two to have a happy marriage is doomed," says Hu Zhijun, the president of the Gay Families and Friends Association. "The wives often get extremely hurt at the disclosure of their husbands’ sexual orientation. Some of them will necessarily want to end the marriage.”
A particular suicide
The new report described four types of requests filed in this kind of divorce. Filing for divorce on the grounds that the couple's differences are irreconcilable or that the marriage was based on a fraud and is thus invalid since it began, or a request for moral damage, or a request for a larger share of the assets in case of divorce.
However, in practice, Chinese courts do not support these kinds of appeals. There was the case last year of Luo Hongling, a professor of Korean language at the Sichung University, who discovered her husband was a homosexual. This led to a serious conflict between the couple, and Luo eventually wound up killing herself.
When Luo’s parents took her husband to court, accusing him of cheating their daughter into marrying him, the court dismissed the allegation on the grounds that “There are no laws which prohibit citizens with homosexual orientation and behavior from getting married.”
According to Beijing’s First Intermediate People’s Court, case studies show the problems of divorce involving a homosexual party under the following aspects.
First, since 1990, gays and lesbians are no longer considered as psychiatric patients by the World Health Organization. Therefore, homosexuality is not statutory grounds for prohibiting them from getting married.
Second, can the heterosexual marriage of a gay man or lesbian be revoked or declared null and void at the other party’s request? The court believes that if the marriage is declared as invalid it won’t in fact necessarily be conducive to the protection of the spouse’s rights and interests. The court can put it into the category to which the article 11 of the Marriage Law can be applied and the spouse can request the court for dissolution.
Third, is it a sufficient reason for divorce for the spouse to be married to a gay or lesbian? The court holds that the alienation of mutual affection should still be the standard of judgment.
Fourth, the demand for moral compensation should not be supported because it lacks a legal basis.
Fifth, is the heterosexual spouse entitled to a bigger share of the couple’s assets in case of divorce? The court believes that since the wives are identified as the unerring parties, normally the partition of property would be “rational and reasonable” for them.
As a homosexual Hu Zhijun believes that in essence the issue concerning homosexuals’ spouses is caused by prejudice against homosexuality. Many gays or lesbians get married just to disguise themselves and avoid being subject to discrimination. Others might also get married because of a desire to have children.
Hu called on closeted gays to be courageous and embrace their sexuality. He also said they should avoid marrying a heterosexual so as not to hurt an innocent person.