The Study On Application Of Foreign Divorce Law In China

The article 26 and article 27 in the "The Law of the Application of Law for Foreign-related Civil Relations" problem rules have specified the problems of the legal application of foreign-related divorce, which has greatly improved the relevant legislation with distinct features. This paper mainly adopts the comparative analysis method to study the rules, then sums up its characteristics and reveals the possibly existing problems and eventually tries to put forward the suggestions to solve the problem.The paper can be divided into four parts:The first part expounds four legal application principle adopted in the legislation of the legal application of foreign-related divorces. As for the problems of divorce by agreement, the principle of party autonomy is regarded as the first principle. This principle is to limit the proper law of the agreement between the parties within the range of the personal laws; The personal law principle is selected as the principle with the second order. It is to make the law of the mutual habitual residences prior to the common nationality law; the principle of lex loci actus is selected as the final principle of divorce by agreement in order to avoid leaving vacancy for law application. The divorce by litigation is only applicable to lex fori, without leaving application space for personal law of the parties.The second part of the paper reveals the features of the legal application of foreign-related divorce in China. The most outstanding feature of the relevant legislation in China is distinguishing divorce by agreement from divorce by litigation and respectively specifying their legal application problem. Therefore, different principles of legal application are adopted, which makes the legal application of divorce by agreement more flexible. This kind of difference in fact embodies sequential adoption of the principle of party autonomy, the personal law principle and the principle of lex loci actus in different legislative policies and provisions of the divorce by agreement as well as the certain guarantee for the freedom of divorce of the parties. While the fact that only the lex fori is applicable to the divorce by litigation emphasizes on the maintenance for the public order and good custom of the native country of the court.The third part of the paper, it discusses the deficiencies of our applicable legislation in foreign-related divorce cases. In terms of the applicable law of divorce by agreement, there exists such problems: unclear application scope of proper law and the confusing application of the law for substantial elements and formal requirements; while divorce by litigation is only applicable when local dharma assembly encourages the clients to “select courts” in corresponding judicial region, which may be unhelpful to the recognition and execution of the judgment.The fourth part puts forward perfecting suggestion for the defects existing in the legislation of the legal application of foreign-related divorce. As for the proper law of the divorce by agreement, it is necessary to make clear that it is only applicable to the dissolution of marriage, while the problems caused by divorce, such as properties division and child support, should apply the proper laws specified by various provisions of legal application. In addition, the legal application of the divorce by agreement should be divided into substantial elements and formal requirements for regulation. As for the establishment of the proper law for the divorce by legislation, it is necessary to adopt the law choice method of the most significant relationship theory. Specifically, the lex fori and the personal law of the parties should be taken into consideration through increasing the quantity of the junction points, so as to make the legal application more applicable and more flexible.