On The Limitation Of Freedom Of Divorce

Freedom of marriage is a basic principle of our marriage law.Among them,the freedom of divorce is the proper meaning of the principle of freedom of marriage.However,the rise of the concept of modern marriage freedom is accompanied by the proliferation of freedom of divorce.In view of this,the article based on the current situation of China's divorce rate rising rapidly,trying to explore the legal basis of the legitimacy of restricting the freedom of divorce,and then through the improvement of relevant substantive and procedural laws,in order to guide citizens to rationally practice marriage from the system design.Freedom of rights.Specifically,in addition to the "introduction" and "conclusion",the paper is divided into the following four parts:The first part is to clarify the basic connotation of the principle of freedom of divorce,and then to discuss "the freedom of divorce is a basic right of citizens,including the content of free disposition and free negotiation."The second part,around the basic claim that "as a basic civil right,the freedom of divorce should also be subject to reasonable restrictions",from "the constraints of social justice and legal obligations","the requirements of social stability and economic development","law and morality" And other aspects to carry out specific arguments.In the third part,we first introduce China's current system of freedom of divorce from the aspects of guaranteeing freedom and restricting freedom.Then we focus on the main defects of the system of contemporary divorce freedom in the substantive norms and legal procedures.Among them,the defects in the substantive norms are the shortcomings in the substantive law legislation,such as the over-abstraction of the situation of emotional breakdown,and the lack of protection for the no-fault parties and children's rights.The defects in legal procedures can be divided into the formalization of the registration divorce system,the lack of accountability clauses,the lack of a standardized registration divorce mediation system,the unclear application limits of divorce proceedings before the mediation,and the absence of distinctions in the types of cases applicable to the divorce cooling off period.problem.The fourth part,in view of the defects and shortcomings of current relevant entity norms and legal procedures in China,this paper advocates the perfection of the divorce freedom restriction system under the guidance of the three basic principles of“persistence in divorce freedom”,“necessary restrictions on equity” and “children's best interests”.Specifically,in terms of substantive norms,it is recommended to increase the fault in the legal divorce grounds,limit the wrong party's request for divorce and add restrictive clauses to protect the minor children.In terms of procedural law,we start with the registration divorce system and the litigation divorce system,and put forward suggestions and opinions.Finally,with reference to the extraterritorial legislative experience,combined with the fact that there are a large number of existing residences in China's judicial practice,a relatively detailed normative design has been made for China to construct a separate residence system to limit the freedom of divorce.