overview

Marriage, commonly understood as a legally recognized relationship between a man and a woman for the purpose of living together, is generally recognized by society. The creation of the marriage system is one of the typical examples of human beings as civilized creatures different from other social creatures, and it is an institutionalized achievement in the development of human civilization. The marriage system is the basic behavioral norms that people need to abide by in social activities, and the law is one of the tools to ensure that people abide by the basic behavioral norms of society. The first basic law after the founding of the People's Republic of China was the Marriage Law promulgated on May 1, 1950, which Mao Zedong praised as "second only to the Constitution in universality." It can be seen that the marriage relationship is the basic relationship in the internal relations of the people, and its importance is self-evident, and it is urgent to regulate and adjust it by legal means. Therefore, the institution of marriage is established through legislation, and the basic attribute of marriage is legality. Therefore, how to understand legal marriage should first start with understanding the legal provisions of the relevant marriage system.

01 Developments and changes in marriage law

After thousands of years of feudal rule, the marriage system of "parents' orders and matchmakers' words" under the rule of the feudal system, the marriage relationship of "three from four virtues, male superiority and female inferiority" was still deeply rooted in people's thinking at the beginning of the founding of New China. According to survey data at the time, between 1949 and 1950, arranged marriages still accounted for more than 90% of the country. The biggest challenge faced by the first Marriage Law in 1950 was to subvert people's traditional feudal marriage thinking, and the establishment of a new marriage system required a gradual acceptance process, so the legislative principles at that time should be coarse rather than detailed. Although there are only 27 articles in the entire Marriage Law, and most of the provisions are the basic principles and requirements of marriage, the first article of Chapter I begins with a clear statement: "Abolish the feudal marriage system of arranged and forced, male superiority and female inferiority, and disregard for the interests of children." The new democratic marriage system of free marriage between men and women, monogamy, equal rights for men and women, and protection of the legitimate rights and interests of women and children is practiced. "After the implementation of the first Marriage Law, the state has done a lot of publicity and activities on the Marriage Law, strictly prohibiting violations of the Marriage Law, and resolutely investigating and punishing omissions in the implementation of the Marriage Law. By the end of the 50s, free marriage finally became the mainstream of society, and arranged marriage has since withdrawn from the historical stage.

Although the first "Marriage Law" effectively abolished the old feudal marriage ideas such as arranged marriage, concubinage, and interference with widows' remarriage, the contradictions of arranged marriages left over from history and the "political marriage" caused by the Cultural Revolution period became more and more prominent with the deepening of the concept of free marriage, so the system of dissolution of marriage relations needs to be further improved. On 10 September 1980, the Third Session of the Fifth National People's Congress adopted the new Marriage Law, and the 1950 Marriage Law was abolished. In addition to the better provisions, one of the main features of the 1980 Marriage Law stipulates that divorce shall be granted if the relationship between the husband and wife breaks down and mediation is invalid. and the principle of freedom of divorce is legally clear; The second is to enshrine in law the provisions on the legal age of marriage and the principle of family planning for late marriage and childbearing, so as to deal with the problem of population control.

On 28 April 2001, the 21st meeting of the Standing Committee of the Ninth National People's Congress adopted the Decision on Amending <中华人民共和国婚姻法>the Marriage Law of 1980. A series of provisions have been added, such as "husband and wife have a duty of mutual fidelity", "prohibition of domestic violence" and "protection of the rights and interests of women and the weak".

On May 28, 2020, the Third Session of the 13th National People's Congress adopted the Civil Code of the People's Republic of China, which came into force on January 1, 2021, and China's Marriage Law was abolished as a separate law with the implementation of the Civil Code. Part V of the Civil Code on marriage and family integrates the contents of the Marriage Law and some judicial interpretations and becomes the legal basis for adjusting marriage and family relations.

02 Basic principles of legal marriage

It can be seen from the development and changes of China's marriage and family law that freedom of marriage, monogamy and equality between men and women are the basic principles that have always been implemented in marriage law. So a valid marriage must meet these three basic principles. The three principles are further analyzed here:

The principle of freedom of marriage

Freedom to marry includes freedom to marry and freedom to divorce. The so-called freedom to marry means that the parties to the marriage have the right to decide on their marriage, and no other person may interfere. That is, you can decide whether to get married, who to marry, when to marry, and other related marriage matters. The freedom of divorce means that the parties to the marriage enjoy the right to dissolve their own marriage relationship, and no other person may obstruct it. If marriage is compared to a room, marriage is to enter the door, divorce is to go out, and if this room is free for the parties, then it must include the freedom to enter and go out, the so-called "freedom to come and go". If only entering the door is free, and going out is not free, then the whole room is actually not free for the parties.

However, freedom in the legal sense is not absolute, but relative, that is, the freedom to be enjoyed should be within the scope of not harming the interests of others. For example, "freedom to beat people" is not the "freedom" protected by law, or even the "freedom" that is prohibited. Of course, the freedom to marry is also relatively free, and the freedom to marry must not harm the public interest or the interests of others, such as bigamy harming the interests of existing legal marriages, and the marriage of close relatives harming the genetic health of human quality. The law stipulates issues such as child support and property division or compensation caused by divorce, and while protecting the freedom of divorce, it also comes with certain obligations to protect the legitimate rights and interests of spouses, children and other marriage-related persons.

The principle of monogamy

The principle of monogamy is better understood, that is, the general form of modern legal marriage should be one husband and one wife, and the concubine system of the feudal marriage system should be abolished. The ancient Chinese marriage system was polygamous, not polygamous. The so-called "three wives and four concubines" is actually used to describe the meaning of many wives and concubines of ancient men, not literally saying that there can be three wives and four concubines. In ancient times, "wife" had titles such as right wife, flat wife, younger wife, side wife, partial wife, lower wife, young wife, and concubine, among which "right wife" was different from other wife titles, the same as "wife" in the modern sense, and although the status of other wives was higher than that of concubines, they were still essentially concubine nature. There can only be one "right wife" to "marry", repeated marriage of wives violates family ethics, and the rights and obligations of regular wives and concubines are fundamentally different from those of other wives and concubines. Although there is no limit on the number of "concubines", they can only be enjoyed by dignitaries, and for commoners, there are restrictions on concubinage. For example, there is a clear record in the Book 163 of the Daming Society: "Those who have a wife and marry a wife shall be ninety years old, and divorced." Those who are more than forty years old and childless, Fang Ting takes concubines. Violators shall be flogged forty". It can be seen that "monogamy" is the marriage system that has been implemented by thousands of years of Chinese civilization. The reason why "monogamy" still becomes the basic principle of modern marriage law is mainly due to its three major civilizational characteristics:

(1) The structure is simple, easy to maintain, fair and equal;

(2) The rational allocation of reproductive resources reduces disputes, which can be seen from the competition for mating rights in the animal kingdom;

(3) It is conducive to blood dispersion.

Polygamous human reproduction will lead to the spread of genes by individuals, and the probability of repeated gene combinations in the future will increase, affecting human health inheritance. Therefore, the law strictly prohibits bigamy contrary to the principle of monogamy.

The principle of equality between men and women

Equality between men and women means that men and women do not enjoy the same rights or bear the same obligations because of gender differences, and equality between men and women is an inevitable trend in the development of civilized society. Its opposite, sexism, often reflects ignorance, barbarism and injustice. Equality between men and women is also one of the most fundamental principles in the protection of human rights. However, after all, there are natural differences between men and women, such as male physique is stronger than women, women give birth to offspring, etc., and it is impossible to achieve complete equality. In the feudal era, industry was not developed, and the main economic form was agriculture. Because productivity lags behind, manpower plays a very important role. Men far outweigh women in human contributions, and the difference in status is therefore significant. But with the development of society, the improvement of productivity, mechanized automation and even to the intelligent today, manpower is no longer the main productive force. The difference in contribution between men and women is no longer determined by the natural difference between the two, but by the accumulation of acquired knowledge, experience, skills, etc., and the harmonious complementarity of men and women is the cornerstone of human unity and development, so abandoning discrimination against women in the old era is the main connotation of equality between men and women.

Equality between men and women in marriage means that the husband and wife have the same marital rights and assume the same marital obligations, and it does not narrow the balance between the gains and losses of both parties in marriage. Taking childbirth as an example, women obviously pay more than men in giving birth to children, and it is impossible for men to pay absolutely equal to women biologically. Having children is an important part of marriage and needs to be decided by both the man and the woman. The woman has the right to decide to have children, and the man also has the right to decide to have children, and their rights are equal, and there is no question of who must listen to whom. However, because women's biological sacrifice determines that women have a veto power to give birth to children, men cannot force women to give birth. Therefore, the connotation of equality between men and women is mutual respect, equal communication, and mutual assistance.

03 Prerequisites and forms of legal marriage

Legal marriage must comply with the above three basic principles of freedom of marriage, monogamy and equality between men and women, which are mainly reflected in the legal provisions such as voluntary marriage, voluntary divorce, prohibition of bigamy or cohabitation with a spouse, etc. In addition, the law also stipulates the "two prerequisites and one form" that legal marriage should have:

Premise one

The legal age for marriage has been reached, and our laws stipulate that the legal age of marriage is 22 for men and 20 for women. The purpose of marrying only after reaching the legal age of marriage is to ensure to a certain extent that the parties to the marriage have the appropriate psychological and physical conditions to fulfill the conjugal obligations and bear family responsibilities in the marriage.

Premise two

It is forbidden to marry close relatives, and it is known that children born by close relatives may have genetic defects, which is a mandatory provision of marriage law to ensure the quality of the population based on eugenics and childbirth.

Form requirements

Register the marriage in person. That is, the parties to the marriage must go to the marriage registration office in person to register the marriage. This is a formal requirement that a legal marriage must have, and the establishment of a legal marriage is generally based on marriage registration as a requirement for validity, and obtaining a marriage certificate is a sign of marriage registration.

It should be noted that in special circumstances where the parties already have husband and wife but have not registered their marriage for some reason, they may apply for a retroactive marriage registration. If the previous marriage relationship meets the substantive requirements of marriage, it is also a legal marriage recognized by law.

(This article is translated by software translator for reference only.)