Research Of The Legal Conditions Of Litigation Divorce Legislation

Marriage behavior is one of the most basic human behavior。It includes marriagebehavior and divorce behavior. Recently, the amount of divorce case increased yearby year, and the rate of divorce grew at the same time. Nowadays, divorce is nolonger an unfamiliar issue to us, also, divorce by agreement and divorce by litigationhave been widely used in our daily life. However, the present legislation aboutdivorce by litigation in our country is incomplete, which resulted in phenomenon likelong divorce litigation time and hardship in dissolute marriage. This kind ofphenomenon initiates the author to think about litigation divorce in china: is thecurrent implementation of litigation divorce system adapted to practice? Has thesystem the ability to effectively solve the demand in people’s lives?As an important divorce institution, litigation divorce has hundred years’ history.During this time, the legislation of litigation divorce system has been constantlydeveloped with the improvement of economic level and social transformation of theform. From The early human society which has low productivity to the present dayswhich social and economic rapid development, the evolution of the system is alsoexperienced hundreds of years’ change from the original unilateral divorce to divorceforbidden in the Dark Ages, then to permit divorce which widely accepted by most ofthe countries in the world. Under permit divorce system, fault divorce andincompatibility divorce are still practiced by many countries which have differentlegal system in the world.Correspondent to litigation divorce legislation doctrine is legislation mode. Incountries which running at-fault divorce, they always use enumerative type while incountries which running incompatibility divorce, they often use instantiate type orgeneralized type.To the countries and areas with different legislation mode, the specific legalcondition they based on to regulate the divorce type is different, too. It adapted totheir different legislation doctrine and legislation mode.Nevertheless, in our country, the regulation of specific legislation condition seems not completely consistent. Although it has the decided “affectionincompatibility” in litigation divorce, there is still some inconformity ones. Thisgenerates the awkward situation when judicial officers dealing with some cases.In fact, in our divorce legal system, there has been an argument aboutincompatibility. Even though we can see that in current marriage law the affectionincompatibility concept occupy the dominate status, there is never stop voices thatinsisted in marriage incompatibility. This not only affects the formulation of specificlegal condition, but also matter the rules that we’ll follow in litigation divorce in thefuture.This article tries to study the history of the development of litigation divorce todiscover the trend of it. Then it will compare the different law in many countries,combining with current marriage law and its relative judicial interpretation and thelegislation practice in our country. Based on legal theory basis and various viewpoints,the author will try to figure the development courses of our litigation divorce, analysisthe logic defect on our current litigation divorce condition, give some advices, andfinally find the litigation divorce system which suit China’s national situation.