On The Restriction Of Divorce Freedom Legal And Economic Perspective

The family is the basic unit of the society and the disintegration of family will bring some problems for social stability. The current legislation in our country provides the dual-track divorce system. The legislation provides that the two parties can divorce with agreement and relieve the marriage through administrative confirmation, or through judicial process by litigation. The new “Marriage Registration Ordinance” enacted in 2003 creates a new period that the marriage registration in our country turns to civil registration from administration. But there is a problem of the divorce system in our country: there are much freedom and fewer limits. Excessive protection of divorce freedom brings some negative influence such as increasing divorce rate and more hasty divorces. The interests of the children and women in the marriage relationship cannot be fully safeguarded. These problems not only influence the family stability, but also affect the social order. In addition, the economic costs of the parties and society will be wasted and the public confidence for marriage will be influenced. Therefore, in our divorce system, the freedom of parties in marriage is not absolute but relative. We should guarantee the freedom, and at the same time, we should draw up some restrictions for freedom. The current laws of our country have certain restrictions for the divorce freedom but they are limited. The nature of divorce includes the consideration of parties in marriage for cost and benefit.The analysis method of economics of law provides us a new perspective at the analyzing problems, thinking problems and solving problems. From the perspective of economics of law, through the consideration of divorce freedom, we can find a more reasonable solution. This paper analyzes the relevant provisions about divorce freedom restrictions of the current laws in our country, applies the method of comparative analysis, compares the related provisions about restrictions on the divorce freedom of foreign countries, analyzes the current imperfections of divorce legislation system in our country, and uses the core analysis method of economics of law, cost—income, to expound the necessity for restriction of divorce freedom. Based on the above process, we can explore the reasonable range for restriction of divorce freedom. While protecting divorce freedom, we limit the abuse of this right so that we can realize the justice and fairness of law. I believe that with the continuous deepening of theoretical research and continuous improvement of legislation, the principle of divorce freedom will be better achieved.This paper is divided into four parts:Part One: The general outline of the principle of divorce freedom. First, through the introduction of historical development of divorce freedom in the world, this paper specifically elaborates the development process of the divorce freedom: from the divorce freedom depended on husband under the power system to the prohibition divorcism in the Middle Age and from restricted divorcism to liberal divorcism. This paper also elaborates the development and trend after the principle of divorce freedom becoming the main trend. Second, this paper expounds the connotation of the principle of divorce freedom and sorts out the status quo of the principle of divorce freedom in our country. This part mainly reveals the historical inevitability and development trend through expounding the historical development of divorce freedom.Part Two: This part discusses the legitimacy of limited divorce freedom from the perspective of economics of law. Freedom, justice and order are the value of law. We should not only fully guarantee the freedom, but also balance the relationship between freedom, justice and order. Excessively pursuiting divorce freedom must conflict with the value of justice and order. From the perspective of economics of law and cost—benefit, this paper specifically analyzes the negative influence of excessively pursuiting divorce freedom and discusses the necessity of limiting divorce freedom from this perspective.Part Three: The comparative analysis on the restriction of divorce freedom between our country and other countries. Applying the comparison research method,through analyzing the regulations and systems of the restriction of divorce freedom between foreign countries and our country, this paper discusses the imperfections at the restriction of divorce freedom part in the current marriage law of our country.Part Four: The thoughts and suggestions of the restriction to divorce freedom of our country from the perspective of economics of law. At the base of above analysis for the necessity of the restriction of divorce freedom, through the comparative analysis of the regulations for the restriction of divorce freedom between other countries and our country, from the perspective of economics of law, this paper put s forward some views about this problem for the imperfections of relevant regulations for the restriction of divorce freedom in the current marriage law of our country.