| Marital relations theory is the essence of marriage and is the substantive theory of the institution of marriage. We should start with the theoretical study of the nature of marriage when study the Marriage Law and its related systems. We can seek answers to the inadequacies of divorce agreement system by analyzing through marriage contract.This paper is divided into four parts:The first part discussed the nature of the contractual marriage from the basic concept of marriage and with the basis of the comments on the various theories about the nature of marriage and the analysis of the nature of contract. Modern marital relationship derives from the agreements between equal entities, promotes marital consultation and agreement about the marital affairs, and recognized the legal effect of the divorce agreement. Because of the innate natural attributes and social attributes of the marriage, as well as physiological basis and especially social customs, modern laws are sufficient to enable the persons concerned to understand the significance of marriage, to presume the rights and obligations of the marital relationship. So from a broad sense, the marital relationship includes the exchange of the identity interests and emotional interests. Accordingly, the coring meaning of the marriage corresponding to the concept of contract can be treated as a lease. This paper further analyzes the unique differences between the marriage contract and the general contract; the uniqueness of marital contract makes the regulation method differ from the contract law itself.The second part, in order to further demonstrate the contract of marriage, the paper analyzes the contract of the China's current marriage law from the perspective of empiricism. It is concluded that the relationship of modern marriage has the appearance and attributes of the contract. So it is possible to view the marriage as the contract, but it should correctly understand the uniqueness of the marriage contract. Marriage system has both natural and social issues whose basic problem is freedom, and the balance between equality and justice, the contradiction between the freedom of the human nature and the social order. Laws as one of the means of maintaining marriage has its limit. Therefore there should have an overall understanding and grasp on the marriage relationship in a certain premise, it helps the law to have a good grasp of regulation in the direction of modern marriage. Viewing marriage as a contract in the law, the law can play the function by itself; ensure the independence and equality of the persons concerned in the maternal relationship; give help for the injured people and maintain the basic social order, not contrary to public order and good customs to achieve the fairness and justice of the modern law system. Also it can avoid excessive legal intervention over marital life, leave enough space for the persons concerned to adjust and build a successful marriage relationship and have a full enjoyment of freedom.In the third part, from a historical point of view, we can get a conclusion that the formation and evolution of the divorce system is the result of human being's natural selection of the state of social production, which based on the historical evolution of the system as well as our legislative system. To a civilized age, socio-politics, economics, culture direct have impacts on the concept of the system. The institutional change of the divorce agreement fully shows that the concept of divorce agreement system coincides with the concept "equality, freedom, justice,"which the modern contract shows. And it also shows that it is feasible to resolve issues related to the divorce system of China with the principles of the "contract law".From the point of view of marriage contract, divorce is a civil act, consensual act, through voluntary dissolution of the marriage and marriage-related services, property, children and other issues. And the essence is the establishment of the new contract (divorce agreement) and termination of the old contract (marriage). The two sides of the divorce agreement reach an agreement through consultation, peaceful separation, which protect the privacy rights of the parties maximally free in use. And it is also the thoroughly development of the modern concept of contract law in the area of the marriage law.We can get the message from the above analysis: the compulsory performance of the dissolution of the marriage laws should manifest mainly in the protection of the main subject's independence and equality, and protect the parties do not violate public order and good customs and maintenance of the social order under the premise of freedom of the dissolution of the marriage, the protection of the parties "Exit" when the marital relationship reasonable and equitable distribution of benefits and shared responsibility, reducing the lifting of the marital relationship of the damage caused by stakeholders. The uniqueness of the marriage contract demands that it should be different from the general law of contract adjustments and regulatory system. In the case of many legal inconvenience to directly intervene in the contents of, for instance, property management and distribution, debt distribution, the attribution of their children. The extensive application of the law of contract to lease justice for the realization of the established principles of honesty and credibility, the change of circumstances, the contracting fault liability equivalent fair, fraud, coercion or terms such as basic principles, which can provide us much useful means when we resolve our problems in divorce agreement system .The fourth part: the major problems of our existing agreement divorce systems are: the parties are untrue at the time of divorce, towards which the legal system lacks of an effective and regulatory relief; the interests of minor children have not been adequately protected; adjustment functions of the law have weakened, as a result, the issue revealed after register can not be held. We can address the above issues by the following aspects: Firstly, make the substantive elements of the agreement divorce system perfect. The provision ," both men and women voluntarily divorce may be granted a divorce" in the present "Marriage Law" Section 31 should be added into the word "really", that is, "both men and women really voluntary divorce may be granted a divorce." Divorce parties must be voluntary and true. This is the most basic conditions of the divorce agreement, and the essential requirements of the marriage contract. At the same time based on principles of civil law and contract law, one of the civil law elements of the entry into force is that parties really want to, which contains two points: First, their minds are in accordance with their behaviors, and the second is the meaning of the parties express his or her opinion on the premise of freedom, that is voluntary. Its significance: One is to make the theory and practice consistent, thus avoiding differences and facilitating the people to understand and operate it accurately. The second is to provide the basis for the revocation of the agreement divorce and the claim of void of the agreement divorce. Third, it is to circumvent the agreement divorce parties to increase legal obstacles, thus avoids the emergence of the divorce agreement in terms of legislation. Secondly, we should add the provision of invalidity of the divorce agreement and improve the revocability of the divorce agreement. The system of the invalid and the revocable contract in the field of contract law is of great significance. Meanwhile, considering the consistency of improving the Civil Code articles marriage and family or relatives chapter of the overall legislative framework , the improvement of the divorce legal system and that of the marriage legal system should be coordinate, and the two provision, invalid agreement and the revocable divorce agreement, should be provided. We believe that based of the law of all the causes of invalid marriage are the issue of anti-public interests, while the causes of the revoked marriage are the issue of anti-private interests, it is null and void if the two parties or one party of divorce agreements are disabled or limited-disability, and they do not make a appropriate treatment for their children and procession as well as the two parties complicity and make some explanations for the fake statement and cheat the institutions of the marriage together. Thirdly, perfect the law for complete protecting the rights of the children. The law should give a detailed and demonstrative regulation. For example, the custody, visitation right, and the right to custody must be including in the divorce agreements and Reach agreement. At the same time, it must take into account about the opinions of children who is above ten years old and below sixteen years old. So as to the children who disagree with it strongly, the law must make an adequately investigation about the detailed condition of their family. In such kind of circumstance, the administration, the registration office must give the right to postpone the registration. According to the rule of changing issues in the contract law, it should make a proper decision depended on the accidental issues for the children who lived in a divorce family.Conclusion: The marriage contract is not only viable on the law but also of great practical significance. China's divorce agreement system is full of freedom but lack of interventions. The basic principles and provisions that various countries applied to the contract system will reflect the justice of contract .we should get reference from these principles to improve China's divorce system. |
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