The Restriction And Equity On Freedom Of Divorce

Freedom of marriage is the basic principle of Chinese marriage law, it includes marriagefreedom and divorce freedom. In this paper, the author drew a conclusion through the analysisof the principle of divorce freedom, that it should need to proper limit the divorce freedom onthe basis of guaranteeing the divorce freedom and based on the needs of balancing theinterests of the parties and proposed suggestions about how to consummate the divorcesystem of China. This paper is divided into the following four parts:Part I: The principle of divorce freedom in current marriage law of China. First, this partelaborated the implication of the principle of divorce freedom and the problem that should bepaid attention to understanding the divorce freedom.Secondly,it combed the concretemanifestation of divorce freedom in Chinese current system of divorce by agreement anddivorce by lawsuit. Thirdly, it analyzed the limitation of the divorce freedom in Chinesecurrent marriage law.Part II: The theoretical and realistic basis for restricting the divorce freedom. First, thispart expounded the theoretical basis for restricting the divorce freedom from different angles,it includes these four aspects: the requirements of the law and morals, the relationshipbetween rights and obligations, the relationship between freedom and justice, the social andeconomic cost. Secondly, it analyzed the current situation and characteristic of divorce inChina and summarized the difficulties due to the excessive divorce freedom, then, it pointedout the realistic necessity of the restrictions on divorce freedom.Part III: Compare and evaluate Chinese and other countries’ restrictions on the divorcefreedom.This part compared and evaluated the rules and system of restricting the divorcefreedom of France, Germany, Britain and America by comparative study.Secondly, it rethinkprofoundly the defect of restricting the divorce freedom.Part IV: Suggest perfecting the system of divorce of China. In this part, on the basis ofanalyzing the theoretical basis and realistic necessity of restricting the divorce freedom, theauthor drew a conclusion, though comparing and evaluating Chinese and other countries’restrictions on divorce freedom, that Chinese divorce freedom should be restricted. Then, theauthor elaborated that China should consummate its divorce system though these four aspects:the interval of marriage and divorce; the divorce way of minor children’s parents; divorceregistration review; divorce harsh terms.