The Contract Nature Of Marriage Relationship

Marriage is a particularly important part in our life, which is associated with each person. Harmonious marital relation to the parties is not only related to the happy life of everyone but also related to the social harmony. So how can we settle the disputes in marriage? This requires us to explore what is the nature of marriage at first. Throughout the world, there are several theories about the nature of marriage: the ethics theory, the identity theory, the system theory and the contract theory. According to the analysis, we can see the ethics theory, the identities theory and the system theory all emphasize the non-contract adjustment to marriage, but they have not done a complete cut with contract application. The contract theory originally showed up in western countries. As time go by, the contract theory was accepted by more and more countries. The author thinks marriage has multiple natures through a series of analysis. The paper is just emphasizing contractual nature of marriage, and do not deny the existence of other attributes. We suggest the principals and rules of contract should be applied to adjust marriage relationship, so that the functions of contract can be maximized and reserve autonomy of the will in the field of marriage. This paper is dedicated to study clearly that, which part of marriage relationship should be adjusted by mandatory laws and which part can be adjusted by parties' contract. The contents of this paper are divided into the following sections:The first part mainly illustrates several theories of marriage, and has pointed out the marital essence is multiple. Firstly, the paper analyzes"the contract theory"thoroughly. The contract theory thinks the marriage ties to the basic elements of contract, conforms to the contract essence characteristic--"agreement"and"exchange"and manifests the basic principles of contract--"freedom"and"equality". Secondly, the paper elaborates"the identity theory","the system theory"and"the ethics theory". The basic concept of these three theories is emphasizing the attribution of non-agreement in marriage, but they have not separated thoroughly with the contract theory. Therefore, we think marriage has multiple attributions, and its contract attribution is undeniable. Attach importance to the marriage's contract attribution can be advantageous to maintain the equality of the sexes, to ensure independence of personality will, and also to maximize the benefits of marriage parties.The second part mainly elaborates contract attribution in the marriage, and analyzes the particularity of marriage contracts. From"the engagement"to"the marriage", the whole process has manifested autonomy of the will. Marriage parties may not only agree on property relations freely in marriage (moreover agreement property system is to surpass legal property system), but also the personal relationship which laws do not perform limits. The litigant may also make a consultative divorce, even the court decision has manifested litigant's free will, because it gives the litigant freedom to relieve the marriage. In other words, from the beginning of marriage to the end, contract attribution is full in it. But the marriage contracts have the unique character, which is different with the commercial contracts. Firstly, marriage has the profound energetic content and the strong ethics color. "Marriage law" cannot avoid the function of social morals which display in marriage, which requires us to differentiate the setting range of legal and moral. Secondly, the rights and obligations in marriage are different from them in merchant contract. Long-term character of marriage, the universality of personal relationships and the special way of negotiation decide an uncertainty in rights and obligations of marriage. This uncertainty also makes more freedom for parties to decide their marriage contract.The third part defines the range of contract law adjustment in marriage. First of all, laws safeguard the bottom rules by power of authority. Laws make directional requirements for rights and obligations in marriage, and outline the basic principles of marriage. Morality spill over into people's hearts and minds gradually, but laws define the bottom rules for marriage. Morality adjustment is more embedded and widely. Marriage matters beyond mandatory laws can be adjusted by contract. Parties can consult related matters freely in contract, such as the property relations, the housework allocation and children's birth and education.The fourth part scans the progress of Chinese Marriage Law in contract view: marriage parties have more independent personality, the law grasps propriety of intervention in marriage and focuses on protecting the autonomy of private life. Based on the principle that marriage has contract attribution, the author analyzes the defects of Chinese Marriage Law, and proposes several suggestions. We should establish a system to punish the part who has"the third party", develop the system of estates information disclosure, consummate family labor compensation system, set system of liability for breach of contract in marriage and regulate the facto marriage.In conclusion, this paper firstly discusses the various theories of marriage, in order to derive marriage has multiple natures and stress the importance of its contractual nature. Then on this contractual basis the paper shows the contract performance in every stages, and analysis its difference with commercial contracts. At last, the author makes comments on Marriage Law of our country and gives some legislative advices in order to maximize the benefits of contract adjustment, to leave more freedom for parties and to make the marriage more harmonious.