The Applicable Law Of Foreign Divorce By Agreement

Article 26 of the Law on the Application of Laws Concerning Foreign-related Civil Relations(hereinafter referred to as the Law Application Law)stipulates: "Agreement for divorce,the parties may agree to choose the law applicable to the permanent residence of one of the parties or the law of the country of nationality.If the parties have no choice,the common application shall apply.The law of permanent residence;if there is no common place of residence,the law of the country of common nationality shall apply;if there is no common nationality,the law of the place where the divorce procedure is applied shall apply." Before the promulgation of the Law Applicable Law,China only had the law applicable to litigation divorce,and there was no legal application for foreign-related agreement divorce.For the first time,the Law Applicable Law clarified the legal choice norms for divorce in foreign-related marriages in the form of law and reflects certain progress.However,in the judicial practice,there was a phenomenon of confusion between the agreement divorce and divorce agreement,agreement divorce and matrimonial property relationship,agreement divorce and litigation divorce.At the same time,in the legal provisions,the choice of the applicable law for divorce in foreign-related agreements also has problems such as unclear choice of law,unclear application of laws in the case of invalid choices,and limitation of the scope of choice of the applicable law.The scope of the applicable scope of the foreign-related agreement divorce andthe applicable law are the essence of the law on the application of divorce and divorce agreements for foreign-related agreements.The principle of unclear and autonomy of will is unclear in the divorce of foreign-related agreements.Based on that,this paper focuses on the relationship between the agreement divorce and divorce agreement,the relationship between the agreement divorce and the custody of the husband and wife property,the legal application of the divorce agreement and the specific provisions of the principle of autonomy of the agreement in the divorce of the agreement,and on the basis of this research,Suggestions for the improvement of the application of divorce laws in China's foreign-related agreements.So,the paper is divided into the following four parts:The first chapter discusses the problems existing in the application of the divorce law in China's foreign-related agreements.Based on the legislative provisions on the divorce of foreign-related agreements in China,the article analyzes the provisions before the promulgation of the Law applicable law in China,and on this basis,analyzes the progress of the law applicable law on foreign-related divorce regulations.Although the law application of foreign-related agreement divorce is clearly stipulated,in the judicial practice,there are few judicial cases that specifically apply the rules of divorce conflicts.At the same time,the courts also have confusion when applying the norms of divorce conflicts.The article combines other relevant provisions of the Law Application Law,pointing out the problems existing in the principle of autonomy of divorce in foreign-related agreements.The second chapter mainly analyzes the legal application of foreign divorce agreements.The three applicable phenomena appearing in the judicial practice of foreign-related agreement divorce conflicts.On the surface,the reason for these phenomena is that the law does not clarify the scope of application of foreign-related agreement divorce.The essence of this is that there is no legal basis for distinguishing between divorce and divorce agreements,equating "a divorce agreement" with a "divorce agreement." This chapter analyzes the relationship between divorce and divorce agreements from the two levels of domestic law and private international law on the basis of analyzing domestic legislation and international legislation on divorcein various countries and combining relevant laws and regulations.At the same time,the article analyzes the legal application of the property division problem in the divorce agreement through the distinction between the foreign divorce agreement and the husband and wife property relationship,and clarifies the relationship between the two.At the same time,through the distinction between child custody issues and divorce agreements,the relationship between divorce agreements and child custody is clarified.After comprehensive analysis of the legal application of the various contents of the divorce agreement.The article points out that the foreign-related agreement divorce does not apply to the validity of the divorce agreement.The third chapter mainly studies the applicable analysis of foreign-related agreement divorce.For the time being,the issue of judicial practice of divorce in foreign-related agreements is not only a clear distinction between divorce agreements and agreement divorce.The key lies in the scope of application of the divorce agreement and the practical operation of the principle of autonomy of will.Based on this,the article analyzes the scope of application of the divorce agreement.Through the comparison of the husband and wife property relationship,child custody and litigation divorce clauses,it is clear that the agreement divorce is only for the dissolution of the identity relationship.On this basis,the article explores the principle of autonomy of agreement divorce.The principle of autonomy of will in private international law is a principle of legal choice.Through the legislative provisions on the divorce agreement between countries,the article analyzes the practical application of the principle of autonomy of the law in Article 26 of the Law Applicable Law from the perspectives of private international law and domestic substantive law.Finally,this chapter analyzes the problems in the selection of the applicable law in the divorce of foreign-related agreements.The contents of the analysis mainly include the unclear choice of law,the unclear application of the law in the case of invalid legal choices,and the unclear definition of the scope of the applicable law.The fourth chapter mainly proposes the improvement of foreign-related agreement divorce,mainly from the legislative and judicial aspects.This paper makes recommendations on the legislative amendments to the applicable law on divorceabroad.The main content of the proposal is to cancel the two-track system of different laws and applicable divorce and litigation divorce,and directly stipulate the law applicable to divorce.Judicial advice is based on recommendations for judicial interpretations that are made in the context of maintaining the original rules.The main content of the proposal is to introduce a new judicial interpretation to explain the scope of application of the foreign-related agreement divorce and the choice of the applicable law.