Family Law needs to be amended!

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Between 2006 and 2009, the divorce rate in Mongolia rose dramatically. In particular, in the 2000s, there were more than 800 divorces, but it increased to 1,448, 1,757, 1,901 and up to 2,399 in the following years. Officials and family researchers explain that this increase is related to election promises and welfare policies.

For instance, in connection with the decision to give 500,000 MNT to newlywed couples, many people registered their marriages. Family experts concluded that this caused the divorce rate to rise. At the time, people criticized the high divorce rate and its negative impact on social development. Though this issue died out not long after, today’s indicator shows that it is necessary to pay more attention to this issue.

More specifically, in 2006, four Mongolian families used to divorce per day on average but now, an average of 11 to 12 families are divorcing. A total of 4,003 couples divorced in 2016, 3,945 in 2017, 4,201 in 2018 and 4,262 in 2019. This decreased to 3,316 in 2020 but slightly rebounded to 3,391 in 2021. Officials say that the decline in the divorce rate was directly related to the COVID-19 pandemic situation. It can be concluded that in our country, on average, more than 4,000 couples get divorced every year. However, this is only the number of legally and officially divorced families.

There are many couples who do not register their marriage and separate after living together. If these indicators are combined, the number of divorced families will be much higher.

Some argue that divorce is likely to increase due to population growth. Of course, it affects to some extent. However, the main problem is that it is relatively high compared to the total population and family size of the country, even compared to some countries with more citizens. In other words, the stability of family has been lost in our country. Researchers attribute this to a number of factors, including financial problems, a lack of responsibility, migration, alcoholism, jealousy, bad habits, extramarital affairs, violence, and the involvement of relatives in couples’ affairs.

There is no denying it – there are many reasons for divorce. However, children need their parents and the best environment for them to grow up is in a happy home with both parents who love and care for them. Researchers say that the key to this is family planning. Family planning is defined as “the ability of individuals and couples to anticipate and attain their desired number of children and the spacing and timing of their births”. Experts say that it can certainly reduce the risk of divorce to some extent.

It is time for the country to focus on family planning and family education. Providing family planning education to citizens from an early age can be more effective, experts say. It is important to spread this knowledge to children and young people, especially at a time when many young people are getting married. Furthermore, there is a need to improve the legal environment. The current Family Law in Mongolia is outdated, fails to fully reflect the roles and responsibilities of family members, and is incapable of regulating relationships between unmarried cohabitants. In some countries, spousal support is available for unmarried couples. Australia, for instance, operates a national de facto scheme, giving unmarried couples much of the same rights as married couples.

Unfortunately, many issues and family disputes arise due to the fact that the law does not reflect the roles and responsibilities of cohabiting couples in Mongolia. Head of the Department of Family and Psychology of International University of Ulaanbaatar, Doctor and Associate Professor B.Oyun-Erdene clarified, “Under the Family Law, parents (married and unmarried couples) must be liable to each other and to their children. However, the law does not specify what actions should be taken if a parent fails to fulfill his or her parental responsibilities. As a result, it is unclear who should be held accountable. Even when a couple divorces, their children should not be deprived of the love and attention of their parents. The lifelong roles and responsibilities of parents need to be legalized.”

This is a big legal loophole. The issue of amending the Family Law to meet the current needs and reflect the specifics of the Mongolian family has been discussed for several years, but the law regulations have not improved. In 2019, in particular, the Ministry of Labor and Social Protection was responsible for drafting the law and relevant standing committees supported it, but it was withdrawn by the Ministry of Justice and Internal Affairs. As a result, the issue remained unresolved until now. Currently, there are reports that the Ministry of Justice and Internal Affairs is working on this bill, but it is unclear whether it will be discussed and when it will be approved.

In connection with this, female parliamentarians submitted a draft amendment to the Family Law last week. The bill provides for the direct withdrawal of child maintenance from parents’ bank accounts. It also stipulates that the amount of child support must be equal to at least 50 percent of the monthly income of the parent who must pay child maintenance and that a penalty of 0.5 percent must be imposed if it is not paid on time. Basically, it is proposed to change the provisions of the Family Law related to child maintenance.

Family researcher B.Lkhagvatseren commented, “Child support should be calculated very carefully. It is determined by taking into account the current economic situation, wages and employment status. As of today, the monthly child maintenance is 115,000 MNT, which is not enough. The social and economic situation and the prices of goods and products have changed drastically from 2010 to 2015. Therefore, it is inappropriate to pay child support according to the calculations of that time.”

“However, the provision that the amount of child support must be equivalent to at least 50 percent of monthly income is unrealistic. Internationally, it is calculated based on the parents’ ability to work and income level. The amount of child support to be paid by a person who has no income other than salary should not exceed 50 percent of his or her income. It is included in the relevant law. However, the draft law includes a provision in violation of this regulation,” he said.

The public is reacting differently to this decision. Some say that it’s just PR for the next election, while others criticize that it’s a “show” for International Children’s Day. Some netizens commented that it is a gender-insensitive decision that spreads the notion that only fathers pay child maintenance.

It is clear that the issue of child support needs to be improved. However, it is better to focus on the issue of divorce and the reform of the legal environment rather than on the amount of money. In fact, we need to pay more attention to how to reduce the divorce rate and not hurt so many children by it.

Divorce has led to many property disputes and child support issues. Internationally, a marriage contract, commonly known as a prenuptial agreement or a prenup, is used as an incentive to regulate these issues. It is a key tool for spouses in resolving property disputes. Often, a marriage contract is used to determine which spouse will retain their properties and other assets in the event the marriage ends. Some marriage contracts also include the commitment the spouses make to each other and the conditions of their marriage. Sometimes, these contracts also cover the details of how children will be cared for after divorce.

Spouses may include separate and marital properties in their contracts. Separate property is any property that one of the spouses owned before the marriage, while marital property includes all property either spouse bought during the marriage. It does not matter whose name it is registered under.

There is a similar regulation in our country. For example, the Civil Code states, “Some relations of property rights of spouses may be regulated under a contract.” It also stipulates, “Spouses may regulate the household budget and expenses of each other, determine the amount of property in case of divorce, and resolve other issues related to property on the basis of an agreement concluded in accordance with this law.”

Unfortunately, the marriage agreement is not often used in Mongolia due to the lack of detailed provisions in the Family Law and the lack of knowledge and information. As a result, divorce can result in an absolute loss or gain for one party. If such an agreement is reached, couples will be able to share their property fairly without a court decision, without wasting time and money. It is also considered a legal guarantee for unmarried couples.

In order to reduce divorce and clarify the roles and responsibilities of family members, the public needs to be informed about marriage agreements accurately without biased opinions. The Family Law should reflect this issue and accordingly inform the public, especially young people.

In 2019, the Ministry of Labor and Social Protection drafted the Family Law, which stated that “marriage contracts shall be a means of regulating property and non-property relations and a legal guarantee for unmarried couples”. Unfortunately, it has been almost three years since this initiative was “forgotten”. Therefore, Mongolians still do not understand what a marriage contract is and continue to face child support and property disputes.

Misheel Lkhasuren