Analysis Of The Application Of Transnational Same-sex Marriage

As our society becomes more and more tolerant,"same-sex marriage"has been admitted by laws in some countries. Until Feb.2008, there are 19 countries and areas have made same-sex marriage legalization in multifarious forms, including Holland, Belgium, Spain, Canada, South Africa, Demark, Norway, Sweden, Iceland, Finland, Switzerland, Germany, France, Great Britain, New Zealand and Hawaii, Vermont, California and Massachusetts of The United States. However, based on the actual law of China, including mainland, Hong Kong, Macao and Taiwan, same-sex marriage is not recognized at present or even in a short period. That's why there are conflicts of laws between China and the above countries and areas in the cases of same-sex marriage. As there must be more conflicts of laws, it is very important and urgent to solve the problem of the application of law in the cases of transnational same-sex marriage.In response to this problem, this paper starts with the meanings of same-sex marriage and its legalization, and put forward the nuclear issue after a series of demonstration. The nuclear issue is whether we should reject to apply the laws which are guided by our conflict rules with the reservation of public order. To meet this nuclear issue, the writer proposes a new analytical model. There are four chapters in this paper.The first chapter is composed of two parts. Firstly, we define the meanings of same-sex marriage and its legalization. Then we focus on the three forms of same-sex marriage, which are marriage, civil union and family partnerships or registered partnerships, and the legislations of the typical countries of each form.The second chapter introduces the legal attitude of China in details. None of the four areas of China admits the validity of same-sex marriage in any way now, nor in the short future.Based on the previous two chapters, it is pointed out in the third chapter that we already have conflicts of laws in the field of same-sex marriage, and it'll be sure of more of that. Then we expound China's attitude of the application of transnational same-sex marriage.Firstly, based on No.147 of our"General Principles of Civil Law", the theoretic attitude of the application of transnational same-sex marriage is to apply the laws of the countries or areas where the same-sex partners get married.Then, we analyze the actual attitude, which consists of two aspects. Firstly, all of our four areas never give up the jurisdiction; secondly, on the question of whether we should apply and execute the laws of the countries or areas where the same-sex partners get married, the answer is that we always refuse to apply the applicable laws with the reservation of public order.Lastly, the writer points out that there are serious drawbacks in our actual attitude, so we should differentiate specific situations. In some situations we take public policy, and in the others we may apply the applicable laws which are guided by our conflict rules. Sometimes we should even recognize the validity of the concerning foreign same-sex marriage.In the fourth chapter, the writer puts forward the nuclear issue of the application of transnational same-sex marriage. To meet the nuclear issue, a total new analytical model is proposed, which is determining the nature of same-sex marriage before applying the laws. If the same-sex marriage belongs to evasive marriage, we should take the public policy, and choose to apply the applicable laws in some special cases. If the same-sex marriage belongs to un-evasive marriage, we should apply the laws of the countries or areas where the same-sex partners get married, and take the public policy occasionally. After that, the writer proposes a series of systemic, idiographic and feasible means to apply the laws in different cases of transnational same-sex marriage.Firstly, it is demonstrated that neither taking reservation of public order in all cases nor applying the applicable laws in all cases is appropriate. So, the nuclear issue is how to distinguish the cases in which we take the reservation of public order or apply the applicable laws.To meet this nuclear issue, the writer puts forward a total new analytical model, which is from determining the nature of same-sex marriage to discussing the idiographic application. First, after comparing with the method of applying laws of same-sex marriage in the United States, the writer classifies same-sex marriage into evasive marriage and un-evasive marriage. If the same-sex marriage belongs to evasive marriage, we should take the public policy, and choose to apply the applicable laws in some special cases. If the same-sex marriage belongs to un-evasive marriage, we should apply the laws of the countries or areas where the same-sex partners get married, and take the public policy occasionally. Then we discuss the idiographic application in different kinds of cases of transnational same-sex marriage. There are six kinds of cases, which are the cases of recognizing the validity of same-sex marriage and the relationships of the same-sex partners, the cases of transnational divorce and getting back marriage which make the validity of same-sex marriage a preliminary question, the cases of transnational adoption which make the validity of same-sex marriage a preliminary question, the cases of relationships of family which make the validity of same-sex marriage a preliminary question, the cases of transnational maintenance which make the validity of same-sex marriage a preliminary question and the cases of transnational inheritance which make the validity of same-sex marriage a preliminary question. Combining with the idiographic characteristics of each case, the writer proposes a series of systemic, idiographic and feasible means to apply the laws in different cases of transnational same-sex marriage. As the writer wish, this new analytical model will guarantee the authority of our laws, while maximizing China's social and public interests and the vital interests of our citizens.