Study On The Legal Regulation Of Non-marital Cohabitation In China

Since the reform and opening-up policy,China's economy and technology have developed at a rapid pace.The social structure and people's ideological concepts and lifestyles have undergone tremendous changes.Some new problems and new trends have emerged in the field of marriage and family.In the past,marriage was regarded as the only and legitimate living community,and non-marital cohabitation was condemned by society and considered illegal cohabitation.Nowadays,non-marital cohabitation has quietly become popular in China and has become a common social phenomenon.Young people do not live together for the long-term purpose of marriage,the elderly are accompanied by old-age care,and non-marital cohabitation has evolved into a new form of family.Non-marital cohabitation groups are a living community based on intimate relationships.If the law is not regulated,it will generate many social problems.What kind of non-marital cohabitation cases can be accepted by the court.Our country only deals with Article 5 of “the Interpretation of the Supreme People's Court on the Application of the Marriage Law of the People's Republic of China(1)” and Article 1of “Supreme People's Court interpretation on issues of applying People's Republic of China Marriage Law(2)" were general requirement.The scope of legal adjustment of cohabitation disputes is limited to the disputes of cohabitation property division,cohabitation of child cohabitation,and the cohabitation of spouses and others,which means that the remaining non-marital cohabitation legal relationship is in a legal vacuum.In addition,at this stage,the long-term guidance of the practice of non-marital cohabitation in China is related to the 1989 "Several Opinions of the Supreme People's Court on the Case of People's Courts Treating Unregistered Marriage and Living in Cohabitation in the Name of Husband and Wife".It can be seen that China's current legal regulation of non-marital cohabitation has obvious lags and limitations.As time goes by,the use of a few decades ago no longer sufficient to deal with the social reality of non-marital cohabitation groups expanding rapidly.In order to seek a reasonable solution,it is necessary to legally regulate non-marital cohabitation in China.In practice,legal regulation of non-marital cohabitation can fairly distribute the rights and obligations of the cohabiting parties,fill the legal gap,and enable the judiciary to effectively cope with a large number of growing cohabitation cases.In theory,through the demonstration of the nature andfunction of marriage and non-marriage cohabitation,it is recognized that non-marital cohabitation is a new type of family bond,a new type of family.Under the historical opportunity that Civil Code is being compiled,the inclusion of non-marital cohabitation legal relations in the marriage family adjustment will effectively fill the theoretical gap,which is a respect for the individual's diversified lifestyle and is a great practice of the rights-based Civil Code.At the same time,it is also feasible to legally regulate non-marital cohabitation in China.In terms of legal practice,the judiciary has already handled a large number of trial experiences accumulated in cohabitation disputes and explored a set of rules that are suitable for China's national conditions.In terms of legal theory,the academic community has produced a large number of research results on the important issues of marriage and family in the non-marital cohabitation,and has put forward many expert opinions on the compilation of the Civil Code.It is necessary and feasible to carry out legal regulation on non-marital cohabitation in China.In the construction of specific rules,we should focus on three aspects: legislative principles,legislative models,and specific content.In the principle of legislation,adhere to the principle of fairness,the principle of distinction and the principle of maximizing the interests of minors.In the legislative model,the maximum protection of the meaning of autonomy is not to register as an essential element and to give the cohabitation agreement legal effect.In the specific content design,we strive to cover the entire process of non-marriage cohabitation from establishment to termination,comprehensively adjust the main legal relationships of people,property,children,and fairly distribute the rights and obligations of the cohabiting parties,cohabiting parties and third parties.Throughout the legislation of various countries,the western legal regulation of non-marital cohabitation is relatively mature,and many studies in the academic field are also based on foreign legislative practice.It should be noted that China and the Western countries have different social structures,cultural heritages,historical traditions,and must refine in the process of reference.Expand individual freedom within the limits of our society to achieve an organic unity of individual rights and social functions.The legal regulation of non-marital cohabitation is not only the need of social reality,but also the call of people for rights and freedoms.The innovations of this paper are as follows: Firstly,break through the traditional theory to adjust the understanding that non-marital cohabitation is limited to the mode of adjustment of de facto marriage.From the perspective of interpretation andlegislation,clarify the confusing laws such as non-marital cohabitation,de facto marriage,and illegal cohabitation concept.Secondly,the use of data analysis methods reveals the urgent need for non-marital cohabitation legal systems in practice.Thirdly,the method of legal hermeneutics is used to reconstruct the family concept,and the relationship between non-marital cohabitation and marriage,family and individual rights is analyzed in depth,and the marriage system is reflected to explain the theory of non-marital cohabitation.Fourthly,a comparative study of foreign legislative cases,but not limited to the embarrassment of the Western model.