A Jurisprudential Analysis On Non-marriage Cohabitation

Non-marriage cohabitation as a social phenomenon has been normal in the society. Since 1960s, it has spread at an astonishing speed. More and more people have replaced the traditional family type with the non-marriage cohabitation. People in many other countries have changed their ideas. They consider this behavior to be legal and adjust it in the scope of law. In China, marriage has been the only legal way to sex because of the rooted normality and law. Since 1980s, with the economic boom and the ever changing ideas, Chinese marriage is undergoing the greatest challenge. More and more people accept non-marriage cohabitation. However, our law is almost blank in this area."The Marriage Law"and the relative explanations are usually taken as references in the practical cases. The ignorance of the law toward non-marriage cohabitation exposes the parties concerned to hurt, and hinders the development of the harmonious society. There is a deep legal and sociological basement to control non-marriage cohabitation by law. We should analyze its reasonability and legality from the aspect of legal theory, not only from law & morality, but also from microscope & macro scope, in order to find the legal theory behind the social problem. Meantime, we can also summarize series of principles we should obey in the process of legal adjustment. They should be the foundation of legal construction in terms of non-marriage cohabitation.The first problem is how to define non-marriage cohabitation. The correct and reasonable definition would be the foundation of the academic research and communication. In terms of the definition, considering the specific situation in China, it's better to define it in a wide range, in order to inspect the inside theory. Therefore, the connotation of non-marriage cohabitation would be"couple who has the capacity to get married cohabitate before marriage", and the extension would contain cohabitation before marriage, marriage without the permit of law, and cohabitation without the intent of marriage.Most of the non-marriage cohabitation studies explain it from civil law aspect with department law. These explanations start from Chinese legislative and judicatory situation, and construct the law concerning non-marriage cohabitation from system construction. They play an important role in solving non-marriage cohabitation cases, but they can not cover all. To analyze it from legal theory, legal philosophy or department legal philosophy is to find the inside reason, and to explain its reasonability and legality, which should understand from the definition of"voluntary"and"idea toward marriage""Voluntary"is a basic idea for non-marriage cohabitation. People who support non-marriage cohabitation regard it as a right. This voluntary involves the idea of equality and liberty, which is unlimited by law. Therefore, people fight for it as a natural right. When we see the voluntary of non-marriage cohabitation as a right, we take sexual right as the basic category of this behavior. To analyze the limit of law toward non-marriage cohabitation from the microscopic aspect is to regard the right as the core, to emphasize the voluntary in this behavior, and result in a right theory. This theory is Sex-rightism or Sex-individualism. Sex-rightism takes sex as its foundation. It's good, reasonable, and right. To limit sexual right to some extend is to get more benefit—stabilization, order, and security.Besides the aspect of law, we can examine this behavior from moral aspect which is a macroscopic theory. This theory takes"marriage concept"as its starting point. During the changing process of sex concept, from conservative to moderate then, to sexualfreedom, we can see morality is undermined in terms of non-marriage cohabitation. Finally, together with sexual right theory, there exist a theory that believes there's no relationship between morality and non-marriage cohabitation. Morality has taken too much pressure. But we should give up the idea that taking morality as the only standard to analyze non-marriage cohabitation. We should analyze this behavior both by law and morality.Law and morality are always mixed together. On one hand, no matter from which aspect, to deny sex out of marriage has many problems. Non-marriage cohabitation as a new social problem deserves to be analyze not only from department law, but also from legal theory, in order to understand this behavior better. Legal theory study of non-marriage cohabitation is to uncover its social and legal basement, to help construct department law. In order to be right forward in law construction, we should make sure its principle before adjusting the social relationship. Personal will, distinctive treatment, value exclusive and women protection should be basic principles in dealing with this case.To regulate the behavior of non-marriage cohabitation originates from the concept of valuing and protecting family autonomy, as well as human right of individuals, esp the disadvantaged. To rule by law is an important guarantee that the society functions effectively, and is the foundation of a harmoniously developing society. To regulate non-marriage cohabitation by law can reflect the important role of law during the process of functioning of the society, and provide effective legal guarantee for developing a harmonious communist society.