On The Legal Effect Of Factual Marriage In China

De facto marriage is the gap product between the idealized design of the marriage institution and marital reality,and it originally belonged to a non-existent marriage.De facto marriage has been existing in China’s urban and rural areas, especially in those rural and remote areas for a very long term massively. Our legal attitude towards the de facto marriage has also gone through a tortuous& iterative process, and until today, we have totally denied the legal effect of the de facto marriage.The elimination in law did not bring the fact a fundamental change to the quo status that de facto marriage still exists objectively lacking the law recognition,and the reasonable interests protection of the marriage parties are still high problems to be solved. De facto marriage is not a peculiar phenomenon in our country, this point is quite clear. After taking a wide view on the world-wide locations,we can find that de facto marriage as a ethical problem in many other countries is even more serious than our country, but few of those countries has the approach to fully negate the de facto marriage and its legal effect. Otherwise, the specification and tolerance to de facto marriage is the common practice of the most countries. After comparing the home and abroad legislation, we can get the point that many countries have adopted or conditionally adopted de facto marriage, however, our country’s practices towards de facto marriage are contrary to other countries’related procedure. To synthesize those relevant factors and inspect them, the author believe that our country’s<Marriage Law> should abandon the current practice which does not recognize de facto marriage and try to learn the advanced experience from the foreign countries. And finally what we should do is to acknowledge de facto marriage’s legal effect and respect the traditional custom & objective fact, and thereby we can maximize the private value of the<Marriage Law>. In addition, the recognition or conditional recognition of de facto marriage is more conductive to effectively maintain the interests of the marriage parties.In addition to the introduction and conclusion, this paper is divided into three parts:According to the relevant provisions of de facto marriage in our country’s law, the first part tries to analyze the attitudes change from the perspective of institution history faithfully, and figure out the interests considerations hiding behind the change, and so far, we can draw out the main research issue of this paper; the second part points out a variety of malpractices of the existing legislation on this problem from the mutual relationship between the current law specifications on de facto marriage and its status quo. On this basis, combining with foreign legislation, as well as domestic practice, the second part has a comparative analysis of the causes of such drawbacks and hazards.;The third part proposes that our country should recognize the legal effect of de facto marriage first of all, moreover, it also analyses the positive role of such practice from the pro and con aspects, secondly, to further refine the study, the third part puts forward the thinking to consummate the institution of de facto marriage, what’s more, the third part advances some concrete & rational proposals and opinions to improve our country’s de facto marriage institution and legislation in light with the reality in our country and other countries’ and regions’advanced legislation.