On The Statutory Grounds For Divorce Legislation And Judicial Practice

This article focuses on the China’s existing statutory grounds for divorce from the practical needs. The most controversial in theory and practice now is the legal grounds for divorce, which is no marital relations between the couples to be regarded as the standard statutory grounds for divorce at present. The author of this article intends to discuss the related issues such as how to identify the feelings no longer exist, how to grasp the emotional breakdown in practice, and how to improve the current legal system in order to make it more accurate to deal with divorce cases.This article elaborates from a historical point of the dissolution of marriage in ancient China and the statutory grounds for divorce in Revolutionary War time, to reveal Chinese marriage laws developing from the fault principle to the present no-fault principle, from forbidden of divorce doctrine to restricted divorcism to free divorcism. At the same time, China’s divorce system is in line with the mainstream of today’s Chinese laws through comparing divorce legislations of Anglo-American, Japan, Germany and Hong Kong. The divorce doctrine transferred from human fault to emotional breakdown is the inevitable result of the evolution of human civilization and social progress.There are different points of view of the statutory grounds for divorce-emotional breakdown in theory and it has legislative limitations through a comparative analysis and from an objective point of view. China’s rising divorce rate in recent years is relevant to too liberal divorce legislation and the related rights of the grounds for divorce and the high divorce rate will inevitably lead to social instability.So Chinese marriage laws should take the interests of society as a whole into consideration, therefore, the author propose the establishment of separation system, publicity announcement system and psychological mediation system to limit the freedom of divorce to some degree in order to deal with divorce cases more rationally and practically. This article intends to explain the legal grounds for divorce as a legal issue as well as concerns about the emotional breakdown and the other legal psychological problems. Especially the psychological mediation system can effectively judge whether emotional breakdown and it further improves divorce legislation limitations for the statutory grounds and it applies the psychology to judicial practice.