On Divorce Freedom And Its Limitations

Divorce freedom and its legal restraints are basic theoretical issues in the study of the family law. Following the theme of equity between freedom and justice, this paper traces the historical trajectory of the development of free marriage. Adopting an interdisciplinary perspective based in legal history, comparative law, legal philosophy, sociology and economics, the author demonstrates that the institutionalization and the continued improvement of divorce rights are must steps in the historical progress of human society. In particular, the author analyzes the challenges and problems presented by the modern social life to the divorce regime. The author explores the value and conception of divorce in free marriage, looks into the relationship between freedom and justice in divorce, and points out that absolute divorce and no fault divorce are not compatible because the issue lies in how to define divorce right in relation to social justice.To balance the need for social justice, the author argues that it is necessary to set up an equitable mechanism in free divorce. That means, when the basic right to divorce is guaranteed, setting certain restraints on divorce procedure can appropriately curb absolute freedom. At the same time, by providing legal remedies to the vulnerable or the wronged party in the case, equity of different interests can be realized. Conducted as a comparative legal research, this paper not only undertakes a comprehensive examination of divorce procedures, divorce conditions and property division policy across different countries, it also reflects upon the divorce regime in our country from a rational, systemic and institutional angle and proposes concrete ideas for the development of divorce procedures and legal framework in China. The author argues that our country's law allows for ample freedom in divorce cases but sets too few restraints. Given this status, China may learn from the divorce laws in other countries to ameliorate its own legal procedure and jurisdictional criteria in...