Research On The Legal Force Of De Facto Marriage

De facto marriage has been existing for a long time in the real life. For thecontradiction between the government’s management of the social order and thepursue of the citizen’s free life, handling the de facto marriage has always been in theawkward position: there have been no enough systematic and specific provisionsabout the problem of de facto marriage in legislation, and even the understandingconflict between different departments of law appears in the legal system; thecognizance about the legal force of de facto marriage also has always been changingin judicial practice, and the social issues deriving from it are often sidestepped.However, the legal problems caused by the de facto marriage are real and serious, thesystematic theory and institutionalized regulation in law are needed for the handlingof related disputes.In addition to the introduction and conclusion, the article is consisted of fiveparts:The first part is to clarify the related basic theories as the basis for laterdiscussion. Firstly, the essential nature of de facto marriage should be contractual, thetheory of marriage contract is the theoretical foundation of this article. Secondly, thatmarriage is established is different from that marriage is effective, the establishedmarriage may still have legal significance though invalid. The research and analysison the legal force of de facto marriage should be based on the fact that the de factomarriage has already been established. Furthermore, the author defined de factomarriage himself after had given brief instruction of various kinds of definition of defacto marriage: de facto marriage is the gamy cohabiting in the name of being spousesof one another without legal procedures for marriage.The second part is the analysis and learn of related legislation. The author firstdevided related legislation about the legal force of de facto marriage in all countriesinto recognition, nonrecognition and comparative recognition to analyze and evaluate,and summarized their advantages and shortcomings. After that, the author cleared upthe relevant provisions about the legal effect of factual marriage in different periods ofnew China. Then the author put forward the views and comments to our relevantregulations currently.The third part is the discussion about the effect types of the established de factomarriage. The author divided the legal effect of the established de facto marriage intothree types just as valid, invalid and revocable and combined all sorts of situationabout them to discuss.The fourth part conceived and discussed about the specific effectiveness reflectand the legal rules of all kinds of de facto marriage in the field of the marriage andfamily law combining the present marriage and family law, including the the personaland property relation between the relevant parties and the legal remedies.The fifth part put forward some ideas and suggestions about the solution of the conflicts of the legal effect when the de facto marriage and registered marriage coexisttaking example by the contract theory and the related spirit of the law about real right,in view of some similarities in the relationship between marriage contract and spouseright and the relationship between the contract and the real right. And the authorhoped that these would provide reference to the legislation and judicial practice.