On Constitutional Test Of Current Divorce Standard In China

Freedom of marriage stipulated by the Constitution of People’s Republic ofChina refers to the freedom under the institutional protection rather than that underthe individualism. According to the theories of the institution protection, divorce isprohibited unless the core function of family couldn’t be performed. It is on the basisthat the existing standard of divorce invites suspicion of unconstitutionality. TheMarriage Law of the People’s Republic of China, therefore, should discard thestandard of divorce of “emotional flaws” and incorporate that of “family flaws”. Thispaper can be divided into four chapters in accordance with its content.The first chapter discusses briefly the legislative evolution of the currentstandard of divorce in China and reviews the disputes between the emotion breakingand matrimony breaking. What’s more, the process is involved in this chapter onwhich China adopted “emotional flaws” into its existing legal system as a legislationexample. In view of the people-oriented constitution, the paper advocates ananalytical method from the perspective of the Constitution to examine legitimacy ofsuch legislation example.The second chapter focuses on the analysis method for institutional protectionwith which to test whether the current standard of divorce is in line with constitution.The original purpose of incorporating the system on marriage and family intoconstitutional protection is to safeguard the former which developed through the ages.Despite the amendments to and improvements of the aforementioned system,legislative body shall not violate its core content，otherwise it shall be committedunconstitutionality.The third chapter demonstrates the unconstitutionality of the current standard ofdivorce in China through the analysis method of institutional protection. By makingcontrasts and comparison, the functions of the system on marriage and family inChina, according to the paper, fall into four categories, namely, the functions ofreproduction, economy, restraint and emotion. Combining the explicit provisionsconcerned in the articles of the Constitution, the core functions of the system on themarriage and family in China boil downs to those of reproduction and economy.Consequently, China’s Marriage Law, which including standard of divorce, shallassume the constitutional responsibilities that ensure the two basis functions above mentioned. The standard of divorce of emotional flaws, nevertheless, violates thisduty and commits gravely the breath of Constitution, owing to its misinterpretation ofMarxist classical writers and its impediments to the roles of these two core functions.It also cripples considerably the functions of “restraint”.In the last chapter, the paper mainly suggests that, to fully carry out theconstitutional obligation of the state-protected marriage and family, it is incumbent onus to make amendments to the legislations by abandoning “emotional flaws” as alegislation example and adopting “family flaws” as a substitute. According to thestandard of divorce of ““family flaws”, divorce shall not be permitted even if thespouses concerned are “strange bedfellows”, given that the basic two functions of afamily manages to be performed. In other word, a divorce is legitimate provided thatproblems about child-rearing and alimony are properly resolved. To enhance thefeasibility of divorce standard, Listing item as a legislation example should beadopted, and detailed circumstances of “the failure to perform the functions ofmarriage and family” should be made. To embody the principles of the Constitutioninvested in the system on marriage and family, the paper deems that the divorceproceedings should be perfected in three respects—the establishment of differentiateddivorce proceedings, increases in the ground for defense to such an end and thecreation of divorce proceedings designed exclusively for the disadvantaged groups.