The Comparative Research On The Application Of Foreign Marriage Law

Family based on marriage is the core o f modem society. As an important part o f civil relationship containing foreign factors, foreign marriage relationship matters the interests o f the spouses and the stability o f the whole society. This paper, based on China’s own practice, and “the Law o f the PRC for Foreign Civil Relations Act"which came into force on April 1,2011, stays focus on the similarities and differences between the old and new legislation, combining with the comparative studies on the application o f foreign marriage law o f the international society, in order to obtain suggestions promoting China’s legislation and judicial practice.The author intends to discuss in four parts. The first part is about the basic discussion on marriage with foreign elements. Firstly, clarifies the definition o f marriage concerning foreign factors. Secondly, analyzes the causes and characteristics o f conflict o f laws concerning foreign marriage. And finally, compares the two methods solving the conflict o f laws, varying from the method o f conflict rules to the uniform substantive legislation. The paper draws the following conclusion: taking the special characteristics o f marital field into consideration, emphasis on the method o f conflict rules in the application o f law will be a better choice, so as to respect the relevant provisions o f domestic laws o f the international society, and, to formulate the uniform legislation o f conflict rules on this basis as far as possible.The second part mainly describes the application o f foreign marriage law. Firstly, sums up the legal applicable principles adopted by different countries in foreign marital field, following by the laws at the locality where the marriage is established, the personal law o f the parties, and the principle adopting both above. This paper will illustrate both the advantages and shortcomings o f these principles, so that China’s judicial practice will make a flexible adoption. In the next place, emphasizes on the comparisons and analyses in the application o f the representative international legislative cases o f foreign marriage law. Last but not least, through the comparison o f the similarities and differences between China’s old and new legislation, the author points out that, in the aspect o f the application o f foreign marriage law, we should pay more attention to the connection with the old legislation, in order to maintain the stability and continuity o f law. In the application o f form elements in marital field,different provisions can be taken regarding the marriage which is established inside or outside China. The laws at the locality will enter into force when the marriage is established in China, and, on the other hand, athe Law o f the PRC for Foreign Civil Relations Actn will find its place in implementation when the marriage is set up abroad.The third part focuses on the jurisdiction over foreign-related divorce cases. After introducing several common standards o f jurisdiction such as the domicile, nationality and habitual residence, the author researches the current legislation o f China’s transnational jurisdiction in divorce cases, and points out that the lack o f systematicness o f existing provisions is easy to breed the phenomenon o f limping marriage, while the principle o f non bis in idem can be accepted to some extent in judicial practice.The fourth part emphasizes on the application o f transnational divorce law with basically the same style as the second part. The difference stands between the two parts is, the principle o f lex fori has found its own place in the determination o f lex causae in foreign-related divorce cases, instead o f the laws at the locality where the marriage is established in the field o f the application o f foreign marriage law. By analyzing the similarities and differences between the old and new legislation and combining w ith the comparative studies o f the international society, the author proposes the following suggestions to the current legislation and judicial practice o f China, that we should make a distinction between the form elements and substantive elements in divorce cases so that lex causae should be determined respectively. Besides, the principle o f autonomy o f will should not be adopted in the field o f form elements. In addition, the principle o f autonomy o f will as well as a mixed legislative system ought to be introduced into the field o f divorce by lawsuit, with the application o f the principle o f the most significant relationship together with the legislative idea o f getting an easier divorce.