Invalid Marriage

The Marriage Law of the People’s Republic of China, which was revised and officially put into implementation in28th, April,2001, proposes the conception of the invalid marriage. It is a great progress in the legislation of marriage in our country and has a great significance to avoid the conflict of law, the punishment of illegal marriage, maintaining the rights and interests of the parties and in line with international practices.Invalid marriage is relative to the valid marriage, which is generally considered to be illegal combination which lacks essential elements of marriage. It both has connection and difference with valid marriage, cancelable marriage and de facto marriage. Invalid marriage and cancelable marriage both lack specific essential factors of effective marriage and both cause the same legal result. Their declaring organ is also marriage registration organ or People’s court. Analyzed from this aspect, cancelable marriage can be considered a special form to treat. But what the invalid against is social public interest elements, and harmful. So it is invalid from the beginning. The marriage parties and interested parties, People’s court or marriage registration organ can declare the marriage invalid any time. But cancelable marriage can only be proposed by one side of the marriage parties who is threatened in a certain time, then it can be declared invalid. The main reason which causes this difference is settled by the public interest element and private interest element violated separately and the degree of harmfulness to the society.Invalid marriage system also has some drawbacks. The distribution of property when the marriage invalid, the protection of Children’s rights and retrospective effect all have some certain disadvantage. Borrowing the foreign advanced experience, combining with China national conditions, basing on the protection of the interests of parties and the principle not declare invalid easily, and improved with four aspects: Firstly, further clarify the scope of invalid marriage and revocable marriage, Included the early marriage has been included in the invalid marriage, disease of marriage, the marriage of no clear misunderstanding and fraud marriage in the scope of revocable marriage, definite the marriage before and after the bigamy on the law, declared the marriage before bigamy conforms to the statutory conditions is effective and the marriage after bigamy is voidable. Secondly, insist the retrospective effect of invalid marriage, which is valid from the beginning, use the method without retrospective effect for the cancelable marriage, which is still valid before declaring the marriage flawless; Thirdly, enhance the protection for the innocent victims in the invalid marriage, build a sound admission system and claim system, treat illegitimate children the same as legitimate children, make sure that the innocent victims can claim for damages and have legal protection; Fourthly, make the People\s court both as the competent authority of the invalid marriage and cancelable marriage. Improve the Marriage Law with judicial practices and revises...