The Freedom And Restrictions On Divorce

Marriage is a legal issue faced by almost every individual in their lives. Since the revision of Law of Marriage in the year of 2000, related discussions and debates have been brought up. Based on the consideration of social order and ethic/moral standards, law has chosen to protect the freedom of divorce, and yet to set certain limits to this kind of freedom. This choice is mainly caused by the pursuit of the ultimate goals of law, which are fairness and justice, to seek the balance between personal freedom and interests of the whole society, and to protect the weak.Introduction part of this thesis briefly described the increase of divorce rate in China and its adverse impacts, the current progress of research and major views on marriage freedom and restriction; revealed that the significance of this thesis lies in its potential function, which is, through inspection on the behaviors of divorce, to make the readers understand the contents and the constrains of divorce as a privilege, to further discuss the theoretical foundation of divorce constrains, and to design specific pathways and institutional structures to improve China's divorce policy. The goal of this paper was introduced at the end of this section, which is to improve the current juristic policy and propose suggestions on related legislation processes.Chapter I analyzed the properties of marriage and its legitimate foundation: due to marriage's ethic characteristics, divorce involves not only the husband and the wife, but also related individuals like the children and the parents; because marriage also has social characteristics, a common trend of divorce could potentially cause serious social problems. Consequently, the freedom of divorce needs to be protected, and constrained to a necessary extent as well. This section cited Professor Huang Yi's theory on legitimacy of marriage. From the perspective of"marriage is a special contract", the feasibility and the adequacy of protection and restriction on the freedom of divorce were analyzed. It was finally pointed out that the necessary restriction on marriage is legitimate and necessary.Chapter II described history of the development of the marriage freedom institution, and revealed the legitimacy to protect marriage freedom based on more than one thousand years'history of the development of divorce policy. China and foreign countries alike, the ancient societies all adopted partial divorce police, which did not endow the female with the freedom of divorce. Under the patriarchal system, the meaning of divorce is partial: the intention of divorce from the male alone can guarantee the final divorce. During the Middle Ages, western European countries banned divorce under the influence of Christian doctrines; the thoughts of"human should not interfere with God's will on the marriage"severely suppressed humanity; with religion reforms and ideological emancipation, human society discarded the ban on divorce and marriage freedom came into history. Divorce freedom has experienced the history of transition from Fault liability to Rupture of Marxism, the cause of marriage ending starts from one part's fault and develops into the fracture in the couple's love. From the history of development, it is known that the development of divorce freedom in China is really hard. As a basic human right, a personal privilege, and an independent Civil Rights, when it is Exercised, divorce freedom only includes the protection of the rights of both parts involved. It has the characteristics of not intentionally harmonizing other's interests, so the legitimacy of divorce freedom leads to its implementation and the protection of it.Chapter III elaborated the foundation of the legitimacy for the restriction on divorce freedom. Firstly, the necessity of restriction was proved from the perspective of related individuals on the interests of marriage. From the perspective of feminist, although the social status of women has improved significantly, women are still in the vulnerable position during divorce, and their interests are not fully protected; from the perspective of protecting children's interests, their interests should be put into the first place. Secondly, from the perspective of social costs, marriage will increase social investment, waste social resources, and induced subsequent issues. The current divorce restriction in China only protects women in pregnancy, military marriage, and can not be charged within six months, while the casual and even careless marriage and divorce behaviors in reality have brought up a significant amount of social problems. To conclude, the design of divorce policy should not only be focused on providing legal ways to couples seeking to terminate marriage. It should encourage the involved individuals to think much before the decision of marriage is made, to keep their promises within marriage, and to take their own responsibilities when facing divorce. It is necessary to legislate certain laws to protect the vulnerable groups, to establish and finalize the divorce compensation policy, and to limit the behavior of mindless divorce.Chapter IV mainly proposed suggestions on the improvement of the divorce policy in China and related legislation. Since the illegitimate restrictions on divorce freedom still exist in China, dissemination and protection of divorce freedom were proposed. Meanwhile, the restrictions on divorce freedom have many disadvantages, i.e., insufficient protection on children and women, the intangible property is not incorporated into the content of compensation during division of properties in divorce, the"shadow"of Fault liability still exists when Rupture of Marxism is conducted, contracted divorce policy is overly unconstrained, protecting the superficial freedom would harmonize the fairness and the justice for the whole society. To establish and improve the divorce policy, restrict mindless divorce, reduce the damage caused by divorce, and to protect the interests of the vulnerable groups, two approaches can be adopted: to set necessary restrictions on the freedom, and to provide corresponding compensation to the victims. The suggestions on legislation to improve the divorce policy were proposed consequently. Based on the comparison with laws restricting divorce freedom in western countries, the current laws in China are found to have certain flaws. It is suggested that the related laws could be introduced to improve the current ones in China, i.e., Separation system, Consideration of system, the policy of banned divorce with a certain period of newly marriage, Harsh terms. Decrease of requirement of proof for innocent party could be utilized to protect the rights of the victims. Increasing the economic costs of divorce can limit mindless divorce. Establishing complete divorce aid policy can protect the interests of the vulnerable groups. Restriction before marriage can be introduced (i.e., contracted marriage and the couple's loyalty agreement on monetary compensation) to make the two parts in marriage aware of the possible consequences, so that mindless marriage can be avoided.The conclusion section summarized the previous sections to indicate the viewpoint of protecting marriage freedom while setting legitimate restrictions, that is, seeking the balance between freedom and restriction. Pursuit of the balance between freedom and restriction is the inevitable demand and the value of social justice. The ultimate goal of restricting divorce freedom is to obtain a balance between the interests of the society and those of the individuals, and to protect fairness and justice to the maximal extent.