Research On The Law Application Of Reasonable Restriction On Freedom Of Divorce

The principle of freedom of marriage is the basic principle of marriage legislation.It contains freedom of divorce.Freedom of divorce fosters hasty divorce,impulsive divorce and fake divorce,etc.Abusing the right of freedom of divorce happen all the time.that damages interests of spouses and children.To prevent social problems from the freedom of divorce,it’s necessary for Civil Legislation of China to restrict freedom of divorce.From the perspective of general restrictions,it contains restrictive factors in the substantive statutory grounds for divorce actually.The court’s determination of whether the feeling between husband and wife has been broken is directly related to the realization of divorce freedom;It is more stringent to set a cooling-off period for divorce proceedings and limit the time interval for re-prosecution of divorce.Furthermore,it is more loose to review formally divorce agreement.From the point of view of special restrictions,the protection system of military marriage and the restrictive provision about litigation rights of divorce during the special period are respectively set up to protect special subjects and vulnerable interests by the way of restricting the freedom of divorce.Restrictions are scattered throughout the divorce system.A normal system of restrictions on freedom of divorce has not yet been formed,which leads to applicable dilemmas.Careful examination of the application of divorce restrictions in China,it is found that the substantive restrictions on divorce freedom are arbitrary,the procedural restrictions are simplified and the special restrictions are formalized.Restrictive clauses are so indistinct,lack detailed and unified guidance judicially.And the application of the law is highly subjective.Parties are under great pressure to provide evidence.There are not enough typed norms in divorce proceeding.It is urgent to clarify the boundary that limit divorce.Divorce legislation and judicial application are insufficient to protect vulnerable groups,so that cannot truly realize the original intention of the principle of marriage freedom.The reason is that judgment standard of ‘Fragmentation of couples’ is unreasonable,supporting system of divorce procedure is imperfect,the special restriction violates the unity of legislation.And there lacks safeguard and relief.Therefore,in ordinary marriage,I believe that it is necessary to improve the legal reasons for divorce,reduce the burden of proof on the parties,introduce the residence system and standardize divorce procedures such as cooling-off period on divorce by typed thinking,and improve the supporting system.In special marriage,It is necessary to clarify the ‘degree’ of freedom of divorce in military marriage;starting from the current special restrictions,we will look at the protection concept of the divorce system for vulnerable groups,and put forward the idea of adding harsh clauses of divorce.In this way,we will respond to limitations on the right of men to divorce during special period.We could extend the concept of protection to general situation,make the clause become a universal and reasonable limitation norm.Taking the principle of maximizing the interests of minor children as a breakthrough in Civil Code,we should expand the scope of this principle,make up for the deficiency of the divorce system,and reasonably limit the freedom of divorce in judicial application to realize the win-win between freedom and justice.