On The Contract Model Of Marital Relationship

Marriage is the unique phenomenon of human society, by which human can plan their own means of gender life, and it is a combination outcome of nature attributes and social attributes. The development of human society has formed a variety of methods to control marriage, such as legal, moral, customs, the media, etc., and the law is the most compelling means to protect the basic human marital order. It is important to choose proper theory from the perspective of the legal system for the rights and obligations of marital parties, and the existence and development of marital relationships. With the development of market economy and the pursuit which from marital parties for freedom and equality, the theory of the contract model of marital relationship has been made in the increasingly dominant position. The paper is divided into five main parts to introduce the contract model of marital relationship. In order to give an objective and comprehensive introduction of the contract model and get more recognition for it in our country.The first part of this paper introduces the development and evolution of the marital contract model, and it can be divided into three stages. The first stage starts with the history of the continuum model. It is the patriarchal model and it emphasize the priority of the right from father and husband, because its inequality it had been eliminated by history. The second phase focuses on the appearance of the contract model of marital relationship. With the bourgeois revolution, and the development of political, economic, and cultural, the scope of contract application is growing. Because it emphasizes on free and equal, the marital contract model is emerging. The third phase is the development of the contract model in modern societies. It mainly introduces three models which are based on the marital contract model. They are the partnership agreement model, the covenant model, and the corporation model and this department explains the main features of these three models. The second part focuses on the expression of the contract model in the modern marital legal system and it selects France and Germany which are belong to the civil law system, United States and Canada which are belong to the common law system as well as China as examples. To France and Germany, by comparing it discusses how to bring in the contract model and the contract spirit, as well as the gradual improvement on the expression and practice of legal system. To the United States and Canada, it selects the divorce laws and regulations as the main direction and tells expression and practice in the modern marital legal system. Finally it focuses on marital law of our country and introduces the attitude change from exclusion to applaud partly to the contract model, as well as the expression in China's current marital laws and regulations. The contract model in the modern marital legal system can give more attention to personal liberty and equal rights, showing strong spirit of the contract.The third part discusses the superiority of the contract model and introduces the advantages from four perspectives. First it introduces this model how to protect the freedom of marriage, from making a match of it to the content of marriage, and even divorce. And then it demonstrates the value and function of the contract model in protecting gender equality. Following it interprets the effectiveness of the contract model in the pursuit of the true meaning. Finally, it pays attention to the benefit of marriage and introduces the effectiveness of the contract model in ensuring the modern marital legal. Free as the core of contract, it stresses the autonomy and freedom of the marital parties; contract is based on an equal basis, and it focuses on equal status of men and women; voluntary as premise of contract, it pays attention to the authentic meaning of the marital parties; benefit is the end of contract, it guards marital law effectiveness and enhance its manipulation. This is a general advantages introduction of marital contract model compared other models.The fourth part tells about the limitations of the marital contract models, and it has two aspects: the result primarily from contractual limitation and the outcome from contract freedom limitation. Contractual limitation mainly comes from "rational" assumptions, incomplete information symmetry. These attributes may bring some difficulties or problems to marital field, for example using material standard to estimate non-material factor, or unfair to the disadvantaged status of the spouse even the constraints of power from one party in marital relationship. Contract freedom limitation is mainly due to the pursuit of freedom which could lead to situations such as social injustice, out of order and so on. The arbitrary actions may make conflicts between human freedom right and social justice, social obligation or family stabilization.The fifth part brings forward the strategy to deal with the limitations of the contract model, and it mainly depends on two angles. First, it should distinguish different fields from the law to the moral, and form a clear cognition to the application bond of the law to avoid attributing the legal limitation problems to the marital contract model. Second, the force of law may arise constraints or help to arbitrary freedom. On the one hand, through the appropriate legal regulation to freedom, there will be a good bit between the marital legal system and marital freedom. On the other hand, it is important to learn from other countries about specific rules on controlling the freedom of marital law system. Otherwise, it is vital to look at contract by developing view and concern the new development from the theory itself. The new contract model can solve part of the application plight and reduce social injustice. In the premise of freedom, by clear legal procedures and conditions, and even restrictive conditions, appropriate intervention or constraint can be taken to control misuse of marital freedom.This paper mainly relates to the development and evolution of the marital contract model, the expression of the contract model in the modern marital legal system, the superiority of it as well as the limitations of it and the strategy to deal with the limitations of it. In modern society cohabitation before marriage, divorce, gay marriage and other phenomenon bring so many challenges to marriage. Can it affect the impact of the contract model or not? The answer is no. The use of the contract model can guard the right of marital parties well. First, the variety of marriage and non-marriage phenomenon is a kind of progress in human society. Because of the contract model can give more protections to the marital freedom, people could be better to choose their own marital life according to the actual situation; second, governments accept Non-complete laissez-faire to personal freedom and could moderate or intervene the marital relationship. Then situation will be better for country and society. In conclusion, it is proper and conducive to use the contract model to regulate marriage in modern time.