"The relationship between husband and wife has indeed broken down" is the legal reason for litigation divorce established by China's current marriage law, and it is also the basic principle for people's courts to hear divorce cases and handle divorce disputes. This regulation has played an important role in promoting the socialist marriage morality based on love and stabilizing marriage and family in China. However, in the practice of hearing divorce cases, the incompleteness of this standard has become increasingly prominent, exposing various defects and deficiencies. Therefore, it is of great theoretical and practical significance to analyze the existing legal causes of divorce and improve the existing divorce legislation.

Keywords: reasons for divorce Marriage Law

The Meaning of the Current Legal Basis of Divorce in China

Article 20,000 of the Marriage Law of the People's Republic of China promulgated by 1980 stipulates: "The people's court shall conduct mediation when trying divorce cases; If the relationship has indeed broken down and mediation is ineffective, it should be allowed, that is to say, "the relationship has indeed broken down" as the legal reason for granting divorce in China, which shows that China adopts the principle of no-fault divorce in legislation and the divorce provisions proposed by one party are generalized. Therefore, in practice, how to determine that the relationship between husband and wife has indeed broken down has become the key to handling divorce disputes. Theoretically speaking, "the relationship between husband and wife has indeed broken down" means that the relationship between husband and wife has broken down, but it is impossible or will break down; The relationship between husband and wife really broke down, not only because it seemed to break down or because the parties thought it broke down; The relationship between husband and wife is completely broken, not only broken or not completely broken, but also the possibility of reconciliation. In order to make a fair judgment on the relationship between husband and wife, the judicial practice also summarizes the experience of "four views", that is, to examine whether the relationship between husband and wife has broken down from four aspects: "the basis of marriage, the feelings after marriage, the reasons for divorce and the possibility of reconciliation". Later, in order to implement this principle more accurately, the Supreme People's Court promulgated "Several Specific Opinions on How People's Courts Determine that Husband and Wife's Feelings have Really Broken" in 1989, which stipulated that 14 was used as the standard to measure the relationship between husband and wife. As long as it meets any one of them, it can be regarded as that the relationship between husband and wife has really broken down and one party insists on divorce. If mediation fails, it may be granted according to law.

Second, China's legal reasons for divorce drawbacks

As a legal reason for divorce, "feelings have indeed broken down" has its side of safeguarding citizens' legitimate rights to a certain extent, but there are still many contradictions and problems in the process of solving practical problems by using it, so it is necessary to revise and improve it.

(A) does not fully reflect the essential content of marriage, the provisions are relatively one-sided.

Marx pointed out: "Divorce is only a confirmation of the fact that marriage is dead, and its existence is only a representation and a scam. Needless to say, it is neither the willfulness of legislators nor the willfulness of private individuals. And every time it is the essence of things that determines whether a marriage dies. " Marriage essentially includes the spiritual life, sexual life and material life of both men and women, which is the unity of the three. Emotional communication is only a part of husband and wife's spiritual life and belongs to the category of consciousness. It cannot and cannot replace the other two aspects that constitute the essence of marriage. Emotional breakdown is not the same as marital breakdown. The breakdown of marriage is not just the disappearance of feelings. Only the destruction of the above three aspects means the collapse and death of marriage. Therefore, three aspects should be fully considered when analyzing and formulating the reasons for divorce, and the essence of marriage should not be viewed only from the feeling of losing a wife. China's marriage law regards marriage as the legal reason for divorce, and limits the essential content of marriage to emotional factors, which fails to fully reflect the essential attributes of marriage.

(2) it is not in line with the current situation of marriage in China and is ahead of schedule.

Engels pointed out: "The full freedom of marriage can only be universally realized after capitalist production and the resulting property relations are eliminated, thus eliminating all derived economic factors that have a significant impact on mate selection today. At that time, there would be no other motives except mutual love. Q) Engels described an ideal marriage model based on love and excluding all other factors in the advanced stage of capitalism. In this ideal state, as long as feelings disappear, marriage will collapse and die. It is from this perfect angle that China's marriage law regards emotional breakdown as the legal reason for divorce. However, marriage can't go beyond the limitation of social and economic structure and cultural development level. At present, China does not have the economic foundation and social conditions to form an ideal marriage model. At present, China is still in the primary stage of socialism, with underdeveloped productivity, backward economy and immature socialist economic system. Individual family is still the economic unit of society, and its economic function still plays an important role. People's general cultural level is not high, and their ideological and moral level is still multi-level. While socialist morality is dominant, it is also influenced by traditional feudalism and capitalist ideological and moral culture, and the concept of socialist marriage morality has not been fully rooted in people's hearts. Although the social status of men and women is equal in law, the concept that men are superior to women has not been completely eliminated. Women are still restricted in their study, employment and holding state posts, and women's liberation has not been fully realized. Such a market-oriented social situation determines that the marriage relationship in China presents a very complicated situation: although autonomous marriage is dominant, there are still involuntary marriages and semi-autonomous marriages. Even if it is a completely independent marriage, marriage based on love is far from universal. Most people have to consider various non-love factors when choosing a spouse, such as social status, social relations, family status, property income, housing conditions, education level, looks and so on. Therefore, taking emotional breakdown as the legal reason for divorce is divorced from China's reality and ahead of schedule.

(3) The regulations are too principled and lack operability in practice.

The law is affirmative, clear and universal. (3) China's legislation has long been characterized by rough but not detailed, and the generalization is not specific. Inevitably, the same problem exists in providing legal reasons for divorce. First of all, it is too general and abstract in legislation to regard the principle that the relationship between husband and wife has indeed broken down as a legal condition for divorce, and there is no specific and objective standard for reference, which makes it difficult for law enforcement personnel to accurately grasp and operate in judicial practice. As far as the awareness activities of law enforcement personnel are concerned, it is inevitable to be subjective. Without specific and objective standards, if there are differences in the personal understanding of law enforcement officers, it is possible to make completely different judgments in the same divorce case, which is extremely unfavorable to maintaining the unity of the legal system.

Secondly, emotion is an extremely subtle thing, which is invisible and intangible. It is the experience and feelings of both husband and wife on married life, and it is a subjective psychological state, which cannot be accurately defined. Moreover, due to the differences of personality, age, occupation, experience, education level and many other factors, everyone has different understanding and requirements for feelings. Sometimes in the same situation, one party thinks that the relationship is really broken, but the other party can think that the relationship is not broken, so it is difficult to have a unified standard. Taking emotion as subjective consciousness as the criterion to judge objective reality has increased the operability of this provision.

Although the experience of "four observations" has been summed up in judicial practice to examine whether the relationship between husband and wife has really broken down, these four standards are very general and subjective in themselves, and can not make law enforcement officers get rid of the confusion of the current legal reasons for divorce. The Supreme People's Court 1989 n published "Several Specific Opinions on How People's Courts Determine that Husband and Wife's Feelings have Really Broken" (hereinafter referred to as "Opinions"), and its standard 14 made up for the defects caused by the abstract provisions on legal causes of divorce in current legislation to some extent, but some of its contents were obviously contradictory and insufficient. Outstanding performance: 1, invalid marriage as a reason for granting "divorce". For example, article 1 "One party suffers from marital diseases prohibited by law"; Article 3: "concealing mental illness before marriage, failing to be cured after marriage, or marrying the other person knowing that he is mentally ill before marriage"; Article 4 "One party cheats the other party, or cheats to obtain a marriage certificate in marriage registration"; Article 6: "Arranged marriage, buying and selling marriage, one party immediately files for divorce after marriage, or * * * has lived together for many years, but the relationship between husband and wife has not been established". These "marriages" violate the essential elements of marriage and there is no marriage at all. If divorce is decided according to divorce cases, these "marriages" are objectively recognized as legal.

2. Some cases in which divorce was granted without emotional breakdown were listed, such as: Article 3: "One of the husband and wife suffered from mental illness during their common life and could not be cured for a long time"; Article 12, "One party's whereabouts have been unknown for two years, and the other party sued for divorce and found no whereabouts after the announcement", reflects the objective reality that the marriage relationship cannot be maintained for various reasons, rather than the so-called marriage relationship has indeed broken down. 3. There are contradictions between the expression of some clauses and the original intention of legislation, such as Article 2 "I don't understand before marriage, get married hastily, have not established marriage feelings after marriage, and have difficulties living together"; Article 6: "Arranged marriage, buying and selling marriage, one party immediately files for divorce after marriage, or * * * has lived together for many years, but the relationship between husband and wife has not been established". Since "the relationship between husband and wife has not been established" after marriage, how can we talk about "the relationship has really broken down"? It is precisely because of these contradictions and problems that the accuracy and standardization of the Opinion as a legal basis are greatly reduced, thus failing to finally overcome the defect of the principle of "feelings have indeed broken".

(four) the requirements of marriage and divorce are inconsistent, and the legislation is not unified.

Although marriage requires both parties to have an emotional foundation, emotion, as a psychological state of human beings, belongs to the category of spiritual life and is not the object of legal adjustment. Therefore, this requirement for marriage can only be improved through education to improve the understanding and attention of marriage parties, and should not be transformed into a mandatory requirement of legal norms through legislation. The provisions on marriage in the second chapter of the Marriage Law fully reflect this point. All the articles in this chapter do not stipulate that marriage must be based on feelings, but only stipulate the necessary conditions, prohibition conditions and legal procedures for marriage. As long as both parties to the marriage meet the conditions and legal procedures for marriage, whether it is based on feelings or not, marriage is allowed. However, in China's divorce legislation, "emotional breakdown is the only legal reason for granting divorce, and emotional breakdown is a mandatory condition for divorce, which leads to the fact that marriage does not require feelings, but divorce emphasizes emotional contradictions, which makes the legislation extremely inconsistent.

(5) It doesn't reflect the basic requirements of socialist marriage moral principles.

Socialist marriage morality advocates monogamy, equality between men and women and freedom of marriage. At present, a profound social change is taking place in China. With the rapid economic development, some old ideas in society are emerging. Some decadent ideas abroad are also eroding the hearts of the weak-willed with the opening of the country. In order to achieve their despicable goals, some morally corrupt people take the opportunity to chop and change, love the new and hate the old, treat marriage as a child's play, ignore social responsibilities and moral obligations, seriously pollute the social atmosphere and undermine the stability of marriage and family. Therefore, from the perspective of maintaining the socialist marriage moral principle, these people's behavior should be restricted and sanctioned in legislation. However, China's divorce legislation does not reflect this basic requirement. Instead of restricting and sanctioning the behavior of these people, they are allowed to divorce, especially those who commit adultery and live together illegally, as long as they are resolutely divorced. The reasons for divorce unilaterally emphasize emotional factors, ignoring the social responsibilities and obligations of marriage, giving the morally corrupt an opportunity, while the truly injured party is not protected by law, which cannot be said to be the shortcoming of China's marriage legislation.

(six) does not adapt to the actual situation of foreign-related divorce in China.

According to Article 6 of "Several Provisions on Marriage Registration between China Citizens and Foreigners" issued by the Ministry of Civil Affairs 1983 on August 26th, the parties involved in foreign-related divorce, whether both parties voluntarily divorce or one party requests a divorce, shall be handled according to the litigation procedure. According to Article 147 of the General Principles of the Civil Law and Provisions of the Supreme People's Court on Implementation, Article 2 188 of Opinions on Several Issues stipulates that all foreign-related divorce cases accepted by Chinese courts shall be governed by China's marriage law, that is, "feelings have indeed broken" is the legal reason for divorce. At present, this provision is not suitable for the actual situation of foreign-related divorce in China. In recent years, the number of foreign-related marriages in China has increased. Some of them were really concluded on the basis of love, but some of them were concluded because both sides met certain interests and needs. Such as: studying abroad, living abroad, improving economic conditions and so on. At present, this kind of wedding smoke not only exists, but also has a growing trend, accounting for the majority of foreign-related marriages in China. A marriage like this has no emotional foundation for both parties at the time of conclusion. What should I do if my feelings break down during divorce? Moreover, in foreign-related divorce cases, due to different nationalities, different economic conditions, different education levels and different inherent ethical concepts and customs, the reasons for divorce are also varied. It is not entirely because of the breakdown of feelings, or even because the feelings of the two sides have not yet broken, but because of the objective reasons brought about by these differences, they can't live together. In this case, it is difficult to solve it only by the principle of emotional breakdown.

Conception of Legal Reasons for Divorce in China

The author thinks that in order to solve the existing problems and improve the divorce legislation in China, we should proceed from China's national conditions and reality, and take "marriage relationship has indeed broken down" rather than "feelings have indeed broken down" as the legal reason for granting divorce.

(1) Taking marriage as the legal reason for divorce has indeed broken down, which fully embodies the essential content of marriage.

"The marriage relationship has indeed broken down" means that the husband and wife can't live together and the marriage relationship can't be maintained due to feelings or other reasons. "Broken marriage relationship" includes the following contents: 1, emotional breakdown, that is, the function of mutual satisfaction between husband and wife disappears; 2, unbearable cohabitation, that is, the function of husband and wife's physiological mutual satisfaction no longer exists; 3. Maintaining marriage will be detrimental to children and the elderly in spiritual or material life; 4. Normal family life cannot be arranged; 5, the husband and wife turned against each other and the family disintegrated. Thus, compared with "emotional breakdown", "marital relationship breakdown" as a legal reason for divorce has a strong coverage. It comprehensively reflects three aspects of the essential content of marriage. It involves various social factors and the relationship between rights and obligations contained in marriage. It shows that marriage is an extremely important ethical and legal relationship. Once a marriage forms a family, it creates legal and moral responsibilities and obligations to the spouse, children, the elderly, society and family. This kind of responsibility and obligation exists independently of feelings in marriage, and the breakdown of feelings does not mean the disappearance of marital responsibility and obligation. So as to explain the breakdown of marriage relationship more completely and scientifically; The collapse and death of marriage can only be confirmed in a complete sense if the marital relationship is difficult to continue and the family can't perform its normal functions due to the feelings of husband and wife or other reasons.

(2) Taking marriage as the legal reason for divorce is in line with the actual situation of divorce in China at this stage.

Based on the divorce reality in China at this stage, we can find that there are roughly several types: first, the marriage concluded because of feelings is disintegrated because of emotional breakdown; Second, whether the marriage concluded because of feelings leads to the dissolution of marriage for some reason; Third, there are emotional factors when entering into marriage. Although the relationship between husband and wife has not yet broken down, due to other human factors and objective conditions, marriage and family have disintegrated. For example, some couples' feelings have not yet broken down, but they are divorced because of the pressure of parents and elders to carry on the family line and the backward thinking of son preference; Fourth, there are emotional factors when entering into marriage. In some cases, the function of emotional satisfaction between husband and wife has long disappeared, but its family function is still playing a role. For example, some couples have broken up their feelings, but they are unwilling to divorce for the sake of economic interests and children's interests, against the bondage of a third party, or the traditional concept of "being loyal to their lives." Therefore, there are many reasons for the breakdown of marriage relationship, which cannot be covered by the "emotional breakdown" of husband and wife. Because of its extensive inclusiveness, "the breakdown of marriage relationship" can not only solve the dialectical relationship between the disappearance of husband and wife's feelings and the inability to maintain marriage relationship in theory, but also cover various divorce realities in practice and solve the contradictions and deficiencies existing in the current legislation. After replacing "feelings have indeed broken down" with "marriage has indeed broken down", our evaluation of a marriage relationship is no longer based on subjective criteria, but on objective criteria to determine its status quo, so as to decide whether to grant divorce.