On Legal Grounds For Divorce

Marital behavior has been one of the most fundamental human social behavior ever since the ancient times. It includes the act of marriage and the act of divorce and has close relationship with people's daily lives. Therefore, divorce behavior has been existing in human's society since the first day when human society exists. Divorce system, which is closely related to divorce act, is an important part of the marital family system, belongs to the scope of a marriage legislation, its occurrence, development and evolution is constrained by the social and material relations of production and deeply influenced by the political, cultural, moral, religious and other factors. Because the divorce system is an important system of marriage and family system and the legal grounds for divorce is an important part of the divorce system, many Chinese and foreign scholars have done much research in this field.This article is intended to attain the goal of perfecting the legal reasons for divorce by expounding the legal reasons for divorce in our country's divorce system. According to current "Marriage law" and related judicial interpretations, in accordance with the judicial practice in China in the past, based on some legal theory, drawing on laws and regulations abroad, combined with multi-academic point of view, this paper tries to figure out the related concepts of legal grounds for divorce in China and historical evolution, analyses the defects and deficiencies of legal grounds for divorce, and tries putting up some suggestions about perfecting legislation. This paper consists of four parts.The first chapter mainly introduces legal status and legislative functions of the legal grounds for divorce in China. With the help of the relevant civil law, according to the stipulation of the current "Marriage Law", this chapter introduces in detail the concept and significance of legal grounds for lawsuit divorce in China. Through the analysis of the characteristics of the legal reasons for divorce, this chapter points out the legislative stipulation of the current legal grounds for divorce and the value of the statutory grounds for divorce legislation in China.The second chapter mainly discusses the shortcomings and causes of legal grounds for divorce in China. This chapter briefly describes the historic evolution of legal grounds for divorce in China, which provides a guideline for sorting out the historic evolution of legal grounds for divorce in China. Then the course of development of the legal reasons for divorce is divided into three stages: stage of feudal society, stage of the National Government's reign, stage of the revolutionary base areas before liberation, the development stage after the foundation of the People's Republic of China. After that, the author briefly analyses the characteristics of each stage and evolution course. Through the analysis of the legal reasons for lawsuit divorce in China, the author finds out the shortcomings and deficiencies of legal reasons for divorce in China.The third chapter discusses the reference and inspiration of legal reasons for divorce from major countries and regions abroad, mainly refer to the major countries in Europe, the major countries in the Americas, the major countries in Asian and Oceania region .By referring to the discussion about legislative contents of legal grounds for divorce in those countries, this chapter is aimed at getting some enlightenment to the legal grounds for divorce in China.The fourth chapter is our current considerations about the legal grounds for divorce. The primary combing to history of the legal grounds for divorce from 1950 to 2001 leads to China's two main controversy towards China's judging divorce grounds, one side holds the view of "affection doctrine", while the other holds the "breakdown of marriage" view. Through the introduction and analysis of the two views, the author analyses the reason why the former view is supported and put forward proposal on how to perfect legislation according to the less sufficient legal grounds for divorce in China's existing law.China's divorce proceedings in the statutory grounds for divorce are based on summing up the past practice of our country and learning of the legislative experience of foreign countries, thus forming a unique statutory grounds for divorce that has Chinese characteristics. Namely, China's "Marriage Law" Article 32, paragraph 2: "When People's Court is judging divorce case, mediation should be carried out; if affection no longer exists and mediation fails, divorce should be granted." This provision is the basic principle for the people's court to deal with divorce dispute and to decide whether to grant a divorce. This is the general type of explanation. Because the statutory grounds for divorce is in an abstract form of general standards for divorce, so it effectively overcomes the shortcomings of the specific provisions and citations, taking the complex and diverse reality of divorce and different styles of marital status into account, its flexibility, abstraction and uncertain extension features make it cover all the specific reasons leading to divorce to the largest on the scope and extent, all inclusive without being left. However, the general presentation of the provisions of the grounds for divorce is too abstract, vague and generalized, making the legal standards a kind of vague, flexible principles of scalability, so that it's hard to reflect the law's safe, established, operational values. At the same time, due to the unclear specific standards and poor direction, it will be inevitable that many people tend to plead for divorce, but based on different interpretations of repeated argument, debate, vexatious, about the same marital status and fact, there may be several different conclusions. More importantly, the flexibility provisions of the law gave the trial court or the personnel a great opportunity for a free evaluation of evidence and conditions to expand or narrow down the interpretation of the boundaries. Specific cases of divorce can only be defined by the judge's understanding of the law and the facts of the case , but understanding differences caused by individual qualities, values may lead to different solutions serious towards similar cases, either too strict or too loose, consequently, those who should be divorced don't get divorced, those who should't be divorced get divorced, such operational errors will invariably do damage to the uniformity of law and the dignity and authority, thus the operational effects of the law should be reduced and people's trust in the law will be influenced. This is inherent shortcomings and regrets of general type of divorce. In order to make up the "affection no longer exists", the general standard of the above-mentioned shortcomings of divorce and maintain their characteristics, as amended, the "Marriage Law" Article 32, term2, based on the affirmation of the 1980 "Marriage Law" Article 25 about the judgement of divorce standards comprehensively and fully, then term 3 first lists four common specific reasons for divorce based on which "affection no longer exists" can be judged. And then a special column of "other circumstances lead to alienation of mutual affection," is added, a vague, abstract extension of the scale of uncertainty, so that the general and specific provisions of the statutory grounds for divorce can be used by combination. This is a major development and progress of China's standard of legislative divorce.But there exists some limitations in the revised statutory grounds for divorce, such as the provisions of the statutory grounds for divorce are too abstract, general and principled, so that the standard is fuzzy, scalable and difficult to operate. In particular in: it does not fully reflect the essence of marriage, the requirements for one-sided; it does not match China's current marital status, going beyond the practical limit; It is too principled, lack of interoperability in practice. The purpose of this paper is to point out the defects of the provisions, the legal grounds for divorce in China's divorce system and the basic principle for people's court to grant a divorce, existing in the "Marriage Law" Article 32, paragraph 2 by studying the legal grounds for divorce in Western society through different historical periods and researching the legal grounds for divorce in the ancient, modern, contemporary times in China ,thus make some contributions to the improvement of the Marriage Law in the future.