Research On De Facto Marriage Relations

The history of the development of marriage system is a process that marriage system and reality adapt each other. While in reality there is always a gap between the function of system and ideal, which produces de facto marriage. And it is the marriage system itself that brings about the existence of de facto marriage relation, which has its root in the folk custom and is the result of the legislation for formalized marriage. In china, formalized marriage is registered marriage, whose blemish leads to the appearance of de facto marriage relation.In the research of jurisprudence, there have always been controversies about de facto marriage, which contain three theories, namely general theory, narrow theory and eclectic theory. According to general theory, de facto marriage refers to those who live together as couples without fulfilling the legal procedure. According to this concept, the subjects of marriage relation include not only those who have no spouses but also those who, as a party of marriage relation, have a spouse. And the legal terms of marriage include not only the situations when both parties coincide with the essential legal elements of marriage but those when they completely don't. So, general de facto marriage includes de facto bigamy in which the two parties live together as a couple but one party or both have a spouse, the cohabiting relation in which both sides have no spouse and live as wife and husband but they don't coincide with the essential legal elements of marriage, and the de facto marriage in which both sides have no spouse, coincide with the essential legal elements and live as wife and husband.According to the narrow theory, de facto marriage refers to live together as wife and husband without fulfilling the legal procedure, but both parties have no spouse and the accord with the essential elements of marriage.According to eclectic theory, de facto marriage refers to the marriage form in which a man and a woman, both of whom have no spouse, live together openly as wife and husband without register and the public also consider them as a couple. This theory thinks that the subjects of marriage should have no spouse, it does not care whether the subjects coincide with other essential elements of marriage.In the author's opinion, de facto marriage refers to the cohabitation that a man and a woman, who coincide with the essential elements of marriage, live together openly as husband and wife without register. The features of de facto marriage include: 1, coinciding with the essential elements of marriage; 2, the lack of legal elements in form; 3, the purpose and stability for cohabiting permanently; 4, completely open to the public.As for the nature of de facto marriage, there are also different opinions in the research of jurisprudence. Some think that de facto marriage is the marriage that does not exist. Others think that de facto marriage is the marriage that is invalid or can be canceled. In my opinion, de facto marriage is a kind of affirmative marriage, or the objective fact which has the effect of affirmative marriage. De facto marriage has the same essential content as the legal marriage does, it just does not possess the legal form of register.A large number of de facto marriage relations have widely existed for a long history, which has its inevitable causes. The main cause is the inheriting and influence of traditional Chinese concept of marriage. These causes include both deeply historical roots and economic and cultural influence, both objective social factors and subjective cause of the parties. In addition, the reasons of its happening are also different in some aspects between cities and countryside. Firstly, the main social reasons of the appearance and existence of de facto marriage in countryside are marrying too early and migration of people. Secondly, the social reason of the existence of de facto marriage in cities is that both and money are the standards of young people's choosing spouse. But their concept of love and reality often exist in a incompatible way. When there are conflicts between reality and ideal, more and more young people choose to live together freely without taking responsibilities. From the beginning of the new century, the percentage of aged people in many cities, which have been aged society, is becoming larger and larger. In terms of marriage of these aged people, a large number of aged people who get remarried are not prepared to be in the register form.Of course the existence of de facto marriage is related with legislation. In china, the legislation about de facto marriage issue, which is still developing, generally experienced four stages, namely admitting stage, partially admitting stage, completely not admitting stage and relatively not admitting stage. All in all, the legislative attitude of our country towards the issue, which has evaded this embarrassing question, is incompatible. This phenomenon reflects from one aspect the hard selection of methods in solving the problem of de facto marriage relation. De facto marriage also exists in foreign countries, which is more serious than China. Although different countries prescribe different marriage forms, they don't evade this problem. From 1970s, more and more countries started to regulate de facto marriage relation, making the two parties of cohabitation enjoy certain rights and bear obligations. It is safe to say that compromising with de facto marriage is the trend of legislation and will continue to go forth. So the legislative experience of the other counties is worth studying and using for reference. The legislation of family law plays an important role in the socialist family system. The family law of our country belongs to socialist type in both content and form, whose contents mainly include some principle and recapitulate prescriptions. And many real family problems can't be solved on the rules of family law. But the legal protection of de facto marriage, which can't be obviated, is necessary in history of marriage, the present status of marriage and the practice of other countries. Here are the reasons why de facto marriage should be protected: 1, the need of reality, which is the direct reason for the protection from law; 2, the promotion of historical tradition; 3, the demonstration of foreign legislation; 4, the private nature of family law; 5, the inevitability of the selection of marriage value.Anyhow, it is necessary to admit de facto marriage and protect the rights of the parties. This is true for the realities of China, the foreign legislative experience, the respect for the tradition, the private nature of the marriage law and the marriage law's selection of value. So this thesis comes back to China's present marriage system, starts from present legislation, points out its blemish, and finally by using foreign legislative experience as a reference puts forward a suggestion from every aspect that China should recognize de facto marriage on the base of marriage registration system and protect it differentially from registered marriage。The legislation of de facto marriage should be improved in the next aspects. First, the legislative form of de facto marriage; Second, renewing the rules of de facto marriage's legalization; third, the improvement of property right of de facto marriage; fourth, the improvement of parental right of de facto marriage; fifth, the improvement of property inheritance right of de facto marriage; sixth, the improvement of maintenance claim right of de facto marriage; seventh, the improvement of the canceling of de facto marriage relation.The main body of the thesis is divided into four parts, which follow up a chain of thoughts, that is, what de facto marriage is, its background, its modern status, reasons why it appears, China's legislative history and present status of de facto marriage, foreign countries'regulation, whether it should be admitted, the blemish of present legislation and how to improve it.