On The De Facto Marriage

As a conventional form of sexual relations, the meaning of marriage is being enriched all along. Since marriage has been brought into line with the law regulation, de facto marriage exists in our life as a ramification of legal marriage. But, according to the marriage law, registration marriage is the unique formal condition of marriage in our country. However, being an objective reality, de facto marriage could not be eliminated till now. How to judge de facto marriage, whether to admit its validity, how to handle a series of problems caused by de facto marriage have become a difficult probem which puzzles our judicial circles. This article makes a simple introduction about de facto marriage concering its concept, characteristics, historical origins and existing reasons, and finds out the reasion why we have such an difficulty in legislation relating to de facto marriage through stipulating about it both home and aboard, further more, this article try to resolve the problems caused by de facto marriage in judical circles by way of reconstructing the formal conditions of marriage in China.This article consists of four parts:Part I: Overview of de facto marriage. The article begins with ragarding de facto marriage as a sexual relationship which lacks the formal condition of marriage, and the two sexes living together due to their common apirations of be a legal couple. In order to further define the content of de facto marriage, this part of article distinguishes de facto marriage and cohabitation through introducing the meaning expressing theory.Part II: Legislative examples about de facto marriage including several foreign countries and region.This part of article introduces the stipulations about the formal conditions of marriage and the legislation circumstance in some countries, such as Germany and Japan. It focuses on common law marriage in the U.K and the U.S as well as Macao, then it summarizes the development of such legislations.Part III: Legislation circumstance about de facto marriage since the founding of PRC and problems still exists. This part of article begins with summarizing the changes of our judical circles'attitudes toward de facto marriage during nearly 50 years from early 1950's when was the 1st marriage law made to 2001 when the newly revised marriage law was made. Through these changes, I point out that our legislators are in a tight corner when they are solving the problems caused by de facto marriage. In my opinion, the reason why they face such problems is that they neglected some Chinese tranditions and folk-customs when they establish the formal conditions of marriage.Part V: Establishing the system of de facto marriage in China. In my opinion, we ought to transform a part of de facto marriage which are in accordiance with the substantial conditions of marriage into legal marriage by diversifying the formal conditions, because the measure not only tally with the state of our country, but also reflects the justicial spirit of law. In this article, I put forward some detaied ideas for establishing the system, such as, regarding both registration marriage and ceremony marriage as the legal form conditions of marriage, conditionally recognizing the validity of de facto marriage, etc.