Study Of Validity Of Registration Divorce In China

Registration divorce, a means of divorce by which the husband and wife intend to divorce of their own accord, reach agreement on the legal consequences of divorce and confirm the termination of marriage through statutory registration procedure, is becoming increasingly commonplace thanks to its simple formalities, low costs and validities protection of the privacy of the concerned parties. However, with a dramatic rise in the divorce rate in China, conflicts among various interests and ideological transformation among the people, in practice the legal ambiguity of this system is increasingly conspicuous:divorce registration that violates or circumvents legal provisions is frequent, and imposter divorce, fraudulent divorce, colluded divorce, coerced divorce and divorce with people incapable of civil disposition that flaw the validity of registration divorce are widely seen on the media, giving rise to much controversy in practical handling and drawing public attention. Based on examination and comparison of specific cases, the author reflects on the solutions to the flaws that undermine the validity of registration divorce in China by referring to the basic theories of civil law and practical experience abroad.In addition to the introduction and acknowledgement, this paper consists of six sections, with around 28,000 words.The first section covers the basic theories of registration divorce by introducing the basic concept of the registration divorce system, demonstrating the value of the system, reviewing the development of the divorce-by-agreement system in Europe and ancient China and the historical evolution of the registration divorce system in modern China and finally analyzing the nature of the registration divorce system as administrative confirmation in nature.The second section covers the current legislature with respect to registration divorce and existing problems in China. First, it starts with the organ, procedure and validity of registration divorce, and points out that the paper covers only the validity of divorce registration on change of relationships;then, it analyzes the problems arising in the practice of the registration divorce system, including indefinite validity resulting from flaws in formal examination, flawed registration resulting from changing opinions on divorce, the aggravation of registration flaws due to refusal to hire an agent, and the lack of punitive measures on flawed registration.The third section covers the constitutive requirements of registration divorce in China. Essentials include exclusivities such as legal marriage between the concerned parties, both parties'full capacity for civil disposition, consensus on divorce, disposal of children and properties and compliance with legal provisions and the procedural requirement that both parties must be present.The fourth section enumerates and analyzes five typical scenarios of flawed validity of registration divorce according to the constitutive requirements described in the previous section, where two circumstances are supposed for divorce with either party absent:in the first case, divorce registered with the knowledge of the faked should be determined as valid, and divorce registered without the knowledge of the faked should be determined as invalid to defend the interests of the faked;for divorce registered by persons not fully capable of civil disposition, the author proposes the imposition of a limited period for the invalid application while determining such divorce as invalid;by analyzing fraudulent divorce, the author concludes that fraudulent divorce can be revoked without prejudice to any third party acting in good faith;Colluded divorce should be determined as valid;coerced divorce should be revoked with prejudice to third parties in good faith.The fifth section proposes solutions to the validity problem of registration divorce by seeking theoretical foundations from civil law actions while referring to the approaches in judicial practice in China (manifested in judicial interpretations). By introducing and sorting these systems and measures, the author proposes the concrete solutions to flawed validity of registration divorce.Following the previous section, the sixth section proposes concrete suggestions, such as the establishment of a system that allows invalidation and revocation of registration divorce, allowing the use of agents in registration divorce, setting of a divorce consideration period, the attempt in segmented divorce, and aggravation of punitive measures on fake divorce, the establishment of an indemnification system for flawed registration divorce, and the addition of valid or invalid divorce litigation in civil cases.