| As the dramatic changes and transformations in modern society,individualism and sexual freedom have become increasingly prevalent,and the number of people who choose to live together outside of marriage has grown,making non-marital cohabitation a common lifestyle.The traditional concept of family in China has always excluded non-marital cohabitation from the formal family model,and the Civil Code that came into force in 2021,still adopts an attitude of "avoiding the issue".The lack of legal regulation has caused the courts to face conflicts of propriety and legality when adjudicating disputes.As a new type of intimate relationship,non-marital cohabitation is a complex combination of property,emotions,children and offspring,etc.The special nature of the identity relationship of non-marital cohabitation determines the complexity and diversity of the property relationship of cohabitation.Non-marital cohabitation is not recognised and protected by law and cannot be regulated in the same way as legal marriage,so the provisions of the marriage system cannot be applied by analogy.At the same time,the objective fact that non-marital cohabitants live together makes their property relationship different from the general community relationship,and the mechanical application of general property rules will lead to a certain degree of imbalance and malfunction,which will easily lead to unjust results and is not conducive to the protection of the interests of the parties to the cohabitation.Therefore,this article,after sorting out the existing legal provisions in China and taking into account the current situation of judicial practice,considers how to respect the existing legal norms in China,based on China’s national conditions,critically draws on the relevant provisions of foreign countries that are ahead of China in this regard,and puts forward legislative proposals for the future construction of the property regime of non-marital cohabitation,with a view to providing useful reference for future judicial practice and filling in the gaps in our national legal system.The purpose is to provide useful reference for future judicial practice and to fill the gaps in our national legal system.The first part introduces the concept,constitutive elements and characteristics of non-marital cohabitation and non-marital cohabitation property relations,in order to clarify the object and limit the scope of the research for the rest of the paper.This paper then combs the legal provisions,judicial interpretations and normative documents in China’s current legal system that regulate the property relations of non-marital cohabitation,and finds that China’s legislation has abandoned the recognition of de facto marriages,resulting in non-marital cohabitation occurring after a certain time limit no longer enjoying the same opportunities as de facto marriages and thus acquiring the legal effects of marriage,and that there is currently a deficiency in the system due to the lack of superior law.In the second part of the study,the judgments of the grassroots courts in Shandong Province in the past three years,which were based on "non-marital cohabitation disputes",were selected for the study from the perspectives of case representativeness,accessibility and convenience of statistical samples.The current state of trial practice is analysed from several perspectives,with a view to summarising the logic of judges’ decisions in exercising their discretionary power under the current legal provisions from a large number of judgment documents,comparing and analysing similar typical cases,and summarising the problems existing in current trial practice.In the third part,we look at the problems of regulating non-marital cohabitation property at the legislative and judicial levels,as summarised above,and compare the institutional provisions in these areas in typical overseas countries,with a view to drawing inspiration from them.In both of civil law and common law countries,there are provisions that give priority to the content of the agreement entered into by the cohabiting partners and,in the absence of consent,to the legal regime of separate property.At the same time,in order to prevent the phenomenon of "one size fits all",common law countries have adopted the principle of equity,recognising the application of partial community of property and the right to request financial help.Based on the premise that marriage is the main object of legal protection and that the wishes of the parties are fully respected,China’s position on non-marital cohabitation relationships should be based on a non-registered cohabitation system that is different from marriage,supplemented by a registered cohabitation system that is different from marriage.The fourth part puts forward proposals on how to construct a property regime for non-marital cohabitation in China in the future,adopting a "dual-track system" parallel to marriage and adhering to the basic position of distinguishing it from the marriage regime.At the same time,in order to avoid the injustice caused by the mechanical application of the individual property regime,it recognises that both parties to a cohabitation share some of their property,and when it is necessary to divide it,the division is carried out in accordance with the principle of joint tenancy as the basic form and joint tenancy as a supplementary form.In addition,in consideration of the legitimate rights and interests of the weaker party,this article draws on the principle of equity adopted by overseas countries,pursuing fairness and justice without adhering to rigid forms,and applying the relevant provisions of the matrimonial relief system to affirm the value of cohabitation and domestic work and consider giving appropriate financial compensation,while the party who has been caused damage may enjoy the right to claim damages.With regard to the assumption of cohabitation debts,in principle,we support the presumption that debts used for living and consumption by both parties during cohabitation are joint debts,and that in the event that the joint property cannot be settled,both parties will be jointly and severally liable for settlement,in order to protect the legitimate rights and interests of third parties. |
