On The Legal Issues Of Unmarried Cohabitation

With the rapid development of social economy and the great improvement of material living standards,diversified lifestyles are gradually rising.As a new form of "family",unmarried cohabitation is gradually chosen by more and more people.The current "Civil Code" continues the legislative tradition of marriage law in China and avoids the problem of "unmarried cohabitation" into the law.However,in judicial practice,disputes caused by unmarried cohabitation emerge in endlessly.The legal problems involved in unmarried cohabitation are becoming increasingly prominent and should be paid attention to.Unmarried cohabitation refers to the continuous and stable common life of both parties without spouse who have not fulfilled the marriage registration procedures.In China,the concept of unmarried cohabitation corresponds to legal marriage.With the change of marriage legislation,it has experienced the changes of "de facto marriage","illegal cohabitation" and "cohabitation" in terms of language expression;in terms of form,it has also developed from the original relationship of cohabitation in the name of husband and wife without registration to marriage cohabitation,unmarried life partner,same-sex cohabitation and other forms.The main characteristics of unmarried cohabitation in China are the agreement of cohabitation and no legal adjustment.The legislation of our country has adopted the evasive attitude of "no protection,no intervention and no punishment" to the unmarried cohabitation.In the judicial practice,the disputes of unmarried cohabitation are dealt with through judicial interpretation.The court only accepts the issues of child support and property division caused by cohabitation,and does not judge the cohabitation relationship itself.Moreover,in judicial practice,the disputes of unmarried cohabitation cases have some prominent problems,such as the double standards of the same case,the difficulty in protecting the rights and interests of vulnerable groups,and the lack of judicial credibility.In judicial practice,the problems of non marital cohabitation disputes are due to the unclear legal nature of non marital cohabitation.There are three types of unmarried cohabitation: marriage,life partner and same-sex cohabitation,which have different legal nature.The non marital cohabitation of marriage type only lacks the elements of marriage registration,which is actually a factual marriage;the non marital cohabitation of life partner type is a contractual relationship with the purpose of mutual assistance;the same-sex marriage is not legal in China,so the same-sex cohabitation is a special contractual relationship with the purpose of marriage.No matter whether it is confirmed by law or not,unmarried cohabitation is an objective status.Based on the different types and legal nature of unmarried cohabitation,different types of cohabitation cases should be treated differently in judicial practice.For the marriage type non marital cohabitation relationship which pursues the marriage effect and hopes the law intervention,we can bring the lawsuit of confirming the marital nature identity relationship through the judicial procedure,and bring it into the adjustment scope of legal marriage.There is no need for the law to intervene in the partner type cohabitation relationship that abandons marriage and replaces single or married life with cohabitation.Only when there are judicial disputes,we should deal with the issue of child support and the division of property.The division of property is based on contract priority,personal property system,and the common property is divided according to the principle of partnership.For the same-sex cohabitation,the parties pursue the family relationship similar to marriage,but because the legislation of same-sex marriage in China is not feasible,the disputes can be handled according to the marriage law.For their children,especially those born by artificial assisted reproduction and surrogacy,their interests should be maximized.In the process of judgment,we should protect the legitimate rights and interests of cohabitants,and effectively respond to the social reality caused by unmarried cohabitation and the judicial needs of the people.