Non-marital Cohabitation Legal System, A Comparative Study

As a living arrangement instead of marriage between two intimate persons, nonmarital cohabitation is more and more prevalent and widely accepted. Responding to this trend, many countries have established a set of law on cohabitation, which is in parallel with the law of marriage. This law tends to recognize and protect nonmarital cohabitation relationship, and to extend the family-style legal regulation to cohabiting partnership. In this dissertation the author, by taking comparative approach, studies on the law of nonmarital cohabitation in typical countries. In view of the theory of freedom and human rights, on the basis of present social reality and legal situation in China, the author tries to provide legislative advice on nonmarital cohabitation to our country.This dissertation consists of eight chapters, in total 270 thousand words approximately.ChapterⅠexpounds on the basic issues of nonmarital cohabitation. This chapter focuses on the definition of nonmarital cohabitation. After exploring various explanations of "cohabitation" and "nonmarital cohabitation", the author defines "nonmarital cohabitation" in this dissertation as "living together like husband and wife publicly and lastingly by two unmarried persons without matrimonial relationship". The prerequisite is in compliance with monogamy and other imperative rules of law; the essence is an interdependent living unit in terms of love, economy and sex, but not in the form of marriage; the appearances and causes of nonmarital cohabitation varied. The author moves on to challenge the concept of "illegal cohabitation", analyze the concept of de facto marriage, and examine the concept of adultery and illicit cohabitation, so as to clarify those relevant concepts.ChapterⅡprobes into the phenomenon of nonmarital cohabitation. A lot of statistics and sociological information is used in this chapter to take a close look at the evolution of nonmarital cohabitation both internal and external. On the one hand, cohabitation is challenging traditional marital family, which could be manifested by the fluctuation of divorce rate and marriage rate. On the other hand, nonmarital cohabitation trends to popularize, which is indicated by the growing population of cohabitation, diversified backgrounds of cohabitants, and increasing nonmarital fertility. "Demariage" and "family revolution" characterized by nonmarital cohabitation is sweeping across Europe and the United States. Though the popularization of nonmarital cohabitation in China is not as extremely as that in Europe and the United States, nonmarital cohabitation is also spreading, and it's more and more accepted by the society. The last part of this chapter explores economic, cultural and environmental elements behind the cohabitation phenomenon, analyzes pros and cons of nonmarital cohabitation, and discusses the theory of different phases concerning the cohabitation phenomenon. According to the forecasting of this theory, the author points out the relationship between this theory and the law of nonmarital cohabitation, thus leads to the study on the law of nonmarital cohabitation in foreign countries.ChapterⅢis on the law of nonmarital cohabitation in the United States. Traditional legal attitude towards nonmarital cohabitation is firstly discussed in this chapter. The author reviews legal provisions that punish and discriminate cohabitants in the history of the United States; examines judicial precedents that deny cohabiting partners' property rights; expounds upon the inadequacy of common-law marriage doctrine and equitable doctrines as available protection for vulnerable cohabitants. Diverse legal treatments of nonmarital cohabitation in most states of the modern U. S. are elaborated in this chapter. States like Illinois give no right to cohabitants; almost every states recognize cohabitants' rights based on contract after Marvin case in California; a number of states confer rights upon cohabitants based on their status, such as "meretricious relationships" in Washington, "civil unions" in Vermont, and "domestic partnerships" in some states according to the law of domestic relations in level of city, county or state. The author comments on each legal treatment of nonmarital cohabitation in the United States, points out the general characteristics of diversity and conservation, and audaciously predicts the tendency of splitting and tremendous changes in this area of law in the United States.ChapterⅣis on the law of nonmarital cohabitation in Great Britain. By researching into the history of law, the author reveals subtle changes prior to 1970s in the law regarding cohabitation, and introduces the legal reform towards recognition and protection of cohabitation relationships after 1970s in Great Britain. Then the author analyzes current legal treatment of cohabitants in the British context. In contrast with marriage, she considers legal rights of cohabitants at different points in a nonmarital cohabitation relationship, ie. during the relationship, on relationship breakdown, and on death of a cohabitant; making reference to cases, she discourses upon ways for cohabitants to achieve their rights, such as cohabitation agreement, trust, proprietary estoppel, etc. This chapter is summed up by brief comments. Looking back to the decade's development of laws toward nonmarital cohabitation relationship in Great Britain, the author indicates that statutory law is piecemeal and case law is context-specific, summarizes "opt-out" and "opt-in" models for regulating cohabiting couples, and attempts to find out the British way forward for the legal reform concerning nonmarital cohabitation.Chapter V is on the law of nonmarital cohabitation in France. This chapter begins with cohabitants' traditional legal position in France before the Law of PACS and Concubinage, observing the breakthrough made by judicial decisions and administrative certificates. The passage of the Bill and the content of the Law is then well discoursed. PACS is a new-style family relationship, which could be entered into by couples whether of a different or the same gender in order to organize their life together. Rights and obligations between pacses could be determined by registered agreement; legal binding is looser than marriage. This brand-new approach initiated by France divides living arrangements between two persons into three levels—marriage, PACS and concubinage. This chapter ends up with comments. PACS is different from marriage in aspects of entrance, legal consequences and dissolution; PACS is not weakening the institution of marriage in view of the practice of PACS and the stability of traditional marriage. Nevertheless, the nature of PACS is confusing, and the system of French law relating to cohabitation is not perfect.ChapterⅥcovers the law of nonmarital cohabitation in other foreign countries, such as Australia, Netherlands, Belgium, and Nordic countries like Denmark, Norway, and Sweden. First part of this chapter studies on states' De Facto Relationships Act and federal case law in Australia. The author upholds "the principle of unequal", while arguing that "claims for equal treatment" should be considered. Second part of this chapter studies on Dutch law of nonmarital cohabitation. By analyzing Dutch Registered Partnership Act, the author discloses questions and dilemma of registered partnership legislation both before and after legal recognition of same-sex marriage in Netherlands. Third part of this chapter studies on the law ofnonmarital cohabitation in Belgium, especially on the Law Establishing Legal Cohabitation. The author considers it as a "new style regulation for partners" other than marriage; meanwhile remarks on some relevant questions. Forth part of this chapter studies on the law of nonmarital cohabitation in Denmark, Norway and Sweden. Registered Partnership Act in Nordic countries, formal cohabitation rules and the Cohabitees(Joint Homes) Act are introduced to show the Nordic legal regulation system with focalization and classification. The author notices mutual elements in Scandinavia, like social benefits, women's status, religion as well as ideas, which result in the actual equalization of cohabitation and marriage. This is in response to the theory of different phases about cohabitation phenomenon that has been discussed in ChapterⅡ.ChapterⅦanalyzes and compares foreign laws of nonmarital cohabitation. The theoretical bases of foreign laws in this area are closely concerned in this chapter. In westem countries, abandonment of laws that forbid or punish nonmarital cohabitation goes along with liberalism, and argues against the principle of legal moralism; establishment of laws that protect nonmarital cohabitation relationships is in pursuit of justice, and goes in line with functionalist family notion. In terms of legislation model, laws of nonmarital cohabitation fall into four category, registered model equal to marriage, unregistered model equal to marriage, registered model unequal to marriage and unregistered model unequal to marriage. By assessing advantages and disadvantages of each model, the author has come to a conclusion that unregistered model unequal to marriage would be regarded as the best legislative model to deal with nonmarital cohabitation relationships. This model could take full consideration of cohabitants'will, dispense justice when necessary, and could actually maintain the solemnity of marriage institution. Legal provisions in foreign countries'laws of nonmarital cohabitation are analyzed and compared in detail in this chapter, in aspects of entering conditions, legal consequences and ending causes of nonmarital cohabition relationship.ChapterⅦis devoted to the suggestions to reform laws relating to nonmarital cohabitation of P. R. China. First part of this chapter observes laws involved in China. By reviewing relevant laws in Chinese history, the author reveals that the law has been changed from prohibiting cohabitants to differentiating cohabitants, and the legislature's attitude towards nonmarital cohabitation has been changed from negative to tolerant. After analyzing the scope and approach of current regulations regarding nonmarital cohabitation, addressing legal consequences of nonmarital cohabiting relationship in China, the author holds that current law of China is too simple and general. Second part of this chapter expounds on the social bases of establishing laws governing nonmarital cohabitation in China. In the author's opinion, a great deal of existing nonmarital cohabitation has its rationality, due to the fact that functions of marriage are transforming, ethical morals are changing, and varying backgrounds of nonmarital cohabitation is reasonable. But social problems caused by nonmarital cohabitation are gradually increasing and more serious, such as property disputes, children born out of wedlock, domestic violence, sidestepping the law, etc. Law should not only affirm nonmarital cohabitation as a personal lifestyle choice, but also grapple social problems caused by nonmarital cohabitation for the sake of equality and justice. However, as far as the current law of China is concerned, legislative guidelines are to be updated, and provisions remain drawbacks and deficiency. Advanced foreign legislations provide valuable lessons for us. Third part of this chapter offers suggestions on the future law of nonmarital cohabitation in China. As to the legislation model, the author maintains to adopt unregistered model unequal to marriage in principal, recognize cohabitation agreement, and to adopt registered model unequal to marriage in addition. As to legal provisions, the author designs a comprehensive regulative structure in aspects of entering conditions, legal consequences and ending causes of nonmarital cohabitation relationship. Unless agreement is reached otherwise, "de facto partners" according to statutory requirements have some rights and duties: during the relationship, partners have the right to deal family daily transactions in proxy, and their property, with some exception, shall be in their respective possession separately; on resolution of the relationship, one party has the right to request the other party for economic assistance; on death of a party, the other party has the right to apart personal property from joint property, to require for an appropriate share of the estate, to accept legacy, and to buy residential house and articles for daily use in priority. De facto partners also have the priority right to leasehold of rented residential house; have the right to advance a request for salvage measures to the People's Court and relative organizations in case of domestic violence. "Registered partners", who have gone through registral procedure, by this status, shall also enjoy a bundle of other legal rights including some treatments given to matrimonial spouses or family members, such as the right to make medical decision, the right to visit in hospital and prison, benefits in leaves, discount in shopping and in traveling, etc. In conclusion, the author tentatively lists proposed provisions of nonmarital cohabitation law for the P. R. of China.