My husband immigrated to Hong Kong, so did I. Is marriage guaranteed by mainland laws?

Legal Application of Interregional Conflict of Laws in China's Marriage and Family System

Law applicable to marriage

The conclusion and effective establishment of marriage relationship must meet the substantive and formal requirements stipulated by law. In private international law, it is generally advocated to apply the law of the place where the marriage took place, or the law of the party's home country, or the law of the party's domicile, or to adopt the mixed system of the above links, and apply it according to different situations. (1) Because Hong Kong is deeply influenced by the Anglo-American legal system, Hong Kong adopts the law of the domicile of the parties in the substantive elements of marriage.

In terms of the formal requirements of marriage, Hong Kong combines the marriage registration system with the marriage ceremony system. Hong Kong's laws on the formal requirements of marriage establishment adopt the law of the place where the marriage took place, that is, Hong Kong laws should be applied to all marriages in Hong Kong, regardless of whether the parties are Hong Kong residents or not. China's provisions on concluding foreign-related marriages are quite simple in legislation, that is, Article 147 of the General Principles of Civil Law stipulates: "If China people marry China citizens and foreigners, the laws of the place of marriage shall apply." Literally, it can only be interpreted as follows: First, it only provides for one kind of foreign-related marriage, that is, the marriage between China citizens and foreigners, while the marriage of China citizens abroad or the marriage between foreigners and stateless persons in China is not within the scope of this clause. Secondly, it not only refers to the marriage between China citizens and foreigners in China, but also refers to their marriage outside China. Third, this clause actually belongs to the norms of bilateral conflicts. "Marriage place" includes both the substantive elements of marriage and the formal elements of marriage. However, this provision is not completely in line with the reality of our country, nor can it be absolutely regarded as a universal rule to deal with all foreign-related marriage laws.

It is worth noting that in China's long-term practice, the law is applicable to foreign-related marriages; There are a series of relevant approvals and documents. (3) The main legal spirit of these documents and replies is: (1) China citizens and foreigners must meet the substantive requirements stipulated in China's marriage law when they get married in China; (2) Both parties are foreigners who get married in China and are allowed to register in the China Marriage Registry; The essential elements and formal elements of marriage still apply to our marriage law. Foreigners with the same nationality are allowed to handle consular marriages and apply foreign laws, but they are also required to abide by the principles of China's marriage law. (3) When a China citizen marries a foreigner outside China, the law of the place of marriage shall apply to both the substantive elements and the formal elements, but it shall not violate the basic principles of China's marriage law, otherwise China will not recognize the marriage relationship. (4) If a China citizen marries outside China, it shall be handled in accordance with the regulations jointly issued by the Ministry of Foreign Affairs and the Supreme Court1October 28th, 1983 165438, and the law on the place of marriage. ④ Article 147 of General Principles of Civil Law fails to completely and accurately summarize China's judicial practice, and it is also inconsistent with international practice. The specific problem in legislation is that there are no different provisions on the substantive elements and formal elements of marriage. Because the Marriage Ordinance of Hong Kong and the Marriage Law of the Mainland have different provisions on the essential elements of marriage, the most obvious one is the legal age for marriage. According to the Marriage Ordinance of Hong Kong, men and women over 16 can get married. The marriage law of the mainland stipulates that "the age of marriage shall not be earlier than 22 for men and 20 for women". Therefore, when Hong Kong residents get married at the age of 16, the mainland courts should recognize their marriage as valid. But is it valid for a Hong Kong resident aged 16 to marry a China citizen who has reached marriageable age in Chinese mainland? Should the mainland law or Hong Kong law be applied at this time? The author believes that as long as both parties meet the marriage conditions stipulated in their personal laws, they should be considered as valid and should not be too concerned about whether their personal laws conflict. The application of Hong Kong laws to Hong Kong residents and the application of conditions prescribed by mainland laws to mainland citizens will be regarded as effective.

Therefore, when dealing with the marriage between China citizens and Chinese mainland residents, we should consider the legal application of the substantive elements and formal elements of marriage respectively. Countries all over the world have strict provisions on the substantive elements of marriage, while they have broad provisions on the formal elements. Considering that the legal conflict between the mainland and Hong Kong is, after all, an interregional conflict within a country, the essential elements of marriage between mainland citizens and Hong Kong residents should be based on the conclusion of marriage, supplemented by the personal law of the parties, that is, the law of domicile; The formal requirements should be relaxed appropriately, as long as they conform to the laws of the place where the marriage is concluded, they will be regarded as valid. Regarding the application of marriage law, there are still several problems to be pointed out in judicial practice.

The first is about the legal status of cohabitation. Different countries have different attitudes towards the legal status of cohabitants. For example, in the United States, cohabitants are regarded as "presumed spouses" and protected as legal spouses. British 1975 Family and Maintenance Law stipulates that "the aided person" includes cohabitants. Before the revision of the Marriage Law, cohabitants were treated differently in different periods in Chinese mainland, which were divided into two situations: de facto marriage and illegal cohabitation. This is reflected in the Opinions of the Supreme Court1April 4, 994 on the People's Court's Trial of Cases of Cohabitation in the Name of Husband and Wife without Marriage Registration and 1989 1 1. After the revision of the Marriage Law, "cohabitation" has two meanings. One means having a spouse and the opposite sex outside marriage, and not living together continuously and stably in the name of husband and wife. This is clearly stipulated in Article 2 of the Supreme Law Interpretation (2001) No.30 "Interpretation on Several Issues Concerning the Application of Marriage Law (I)". In fact, "cohabitation" in this sense is what we usually call "concubinage, third party intervention, adultery, concubinage, etc." This is prohibited by the revised Marriage Law. (See Articles 3, 32 and 46 of the Marriage Law respectively). The second meaning refers to the men and women who have not registered for marriage and live together in the name of husband and wife as stipulated in Article 8 of the Marriage Law. Articles 5 and 6 of Supreme Court Interpretation (2001) No.30 clearly stipulate that the de facto marriage should be handled or the cohabitation relationship should be dissolved according to the specific circumstances. Therefore, China adopts the principle of different treatment for "cohabitation", and the disputes arising therefrom can be handled by the people's court according to the relevant provisions of the Supreme Court.

In Hong Kong, "cohabitation" is considered as a man and a woman who are not married. Cohabitation is a special contract based on the fact that both parties agree. In other words, "cohabitation" has been recognized in Hong Kong. According to Hong Kong law, cohabitants do not bear the responsibility of the other party to support or provide shelter, and cohabitants do not have the right to inherit from each other, but the law allows female cohabitants to apply for taking care of their children's lives. Therefore, the personal laws of both parties should be applied and a tolerant attitude should be adopted on the issue of cohabitation, which is more in line with the actual situation in Chinese mainland and Hong Kong.

The second is about invalid marriage. According to Hong Kong law, invalid marriage refers to an illegal marriage that violates the requirements of the essence or form of marriage. To sum up, there are several reasons why marriage in Hong Kong is invalid: (1) lack of consent of the parties; (2) Violating the provisions prohibiting consanguineous marriage; (3) Do not have a legal way to get married; (4) Bigamy; 5] Not reaching the legal age for marriage, etc. This marriage was invalid from the beginning. When 1980 was promulgated, there was no explicit provision on invalid marriage, but such problems often occurred in practice. The main reason is that the parties are forbidden to get married against their wishes or have not reached the legal age for marriage, or have bigamy, and the parties suffer from the disease of prohibiting marriage. The emergence of these situations often becomes the legal reason for judging divorce. On April 28th, 20001year, when the National People's Congress revised the Marriage Law, it took into account the specific situation in practice, and set out to avoid and reduce the occurrence of illegal marriages and safeguard the seriousness and authority of the Marriage Law, and stipulated that the above-mentioned situations that violated the essential elements of marriage were the legal reasons for invalid marriages.

Regarding the validity of foreign-related marriages, Article 188 of Opinions of the Supreme Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) (for Trial Implementation) stipulates: "The laws of the place of marriage shall apply to foreign-related divorce cases accepted by Chinese courts ...".

(b) Application of divorce law.

Divorce is the act of dissolving the marital relationship between husband and wife according to law. Like marriage, due to the differences in historical traditions, customs and legal provisions, the divorce systems in different countries are very different, especially in the reasons and methods of divorce, so the legal conflicts about divorce are very common. At the same time, divorce inevitably involves divorce procedures, case jurisdiction and law application. So is the conflict of divorce laws between Chinese mainland and Hongkong.

According to Hong Kong's Matrimonial Litigation Ordinance, Hong Kong implements a litigation divorce system, and all divorces must be tried by the court, and the only reason for divorce is that "the marriage has broken down irretrievably". In Chinese mainland, according to the marriage law, there are two kinds of divorce: administrative procedure and litigation procedure. The reason for the divorce is that the relationship has really broken down.

In private international law, the jurisdiction of divorce often adopts the criteria of domicile and nationality, and the applicable law is also the law of forum or personal law.

According to the Matrimonial Causes Ordinance, the courts in Hong Kong have jurisdiction over both husband and wife who live in Hong Kong or have married in Hong Kong for three years, and apply the law of the forum. The specific scope is as follows: (1) Any party to a marriage must settle in Hong Kong when filing for divorce; (2) If the woman files for divorce, she must live in Hong Kong and have settled for three years when applying for divorce; (3) The wife is abandoned by her husband or the husband is deported by the Hong Kong authorities; However, the husband had settled in Hong Kong before abandoning his wife or being deported; (4) When the divorce application is filed, both parties live in Hong Kong or the defendant lives in Hong Kong; The wedding was held in Hong Kong. ⑤

The mainland adopts the principle of territorial jurisdiction over divorce cases, and the people's courts in the mainland where the marriage was concluded or the defendant's domicile (including the last residence) has jurisdiction. Regarding the application of divorce law, according to Article 147 of the General Principles of Civil Law of China: "Divorce shall be governed by the law of the place where the court accepts the case", the Marriage Law of China and other relevant laws shall apply.

If both the Mainland and Hong Kong have jurisdiction over the same case, and one party files a lawsuit in the Mainland and the other party files a lawsuit in Hong Kong, the court that first accepts the case will exercise jurisdiction. If both parties agree to choose a court with jurisdiction in mainland China (Hong Kong) according to law, Hong Kong (Mainland China) shall recognize that the court has jurisdiction. Therefore, the jurisdiction of divorce cases should be under the jurisdiction of the court of one party's domicile, and the status of the court should apply. Mainland courts and Hong Kong courts can properly resolve jurisdiction disputes through equal consultation.

The legal application of divorce also involves an important issue, which is the legal effect of divorce. Divorce means the dissolution of marriage relationship, which involves not only the elimination of the relationship between husband and wife's rights and obligations, but also the sharing of children's responsibilities, the division of property, the compensation for debts and the legal obligation to help. The effectiveness of divorce is various, but it mainly includes the effective time of divorce judgment, the effectiveness of divorce judgment in identity, the effectiveness of divorce judgment in children's education, guardianship and marital support.

Regarding the effective time of divorce judgment, the effective time of divorce cases accepted by mainland courts should be the final judgment made by the people's court of second instance according to the provisions of the civil procedure law, or the first-instance judgment that the parties did not appeal at the expiration of the appeal period should be the effective judgment. With regard to the issue that one party in China applied to the people's court for the recognition of the validity of the divorce judgment of a foreign court, the Supreme Court gave an official reply in LawNo. (1990)No. 12 on August 28th, 1990: If a party in China applied to the people's court for the recognition of its binding force with a divorce judgment made by a foreign court, it would be accepted by the intermediate people's court. After examination, if the judgment of a foreign court does not violate the basic norms of China law or the interests of China and society, the ruling shall recognize its binding force; Otherwise, the application will be rejected. The ruling of first instance and final instance shall not be appealed, and the time when the ruling takes effect is the time when the judgment takes effect. This provision is a concrete manifestation of China's application of the public order reservation clause, which is obviously applicable to the mainland to confirm the validity of the divorce judgment of the Hong Kong court. According to the Matrimonial Causes Ordinance, divorce cases in Hong Kong courts have two levels of final appeal. The Hong Kong District Court exercises the jurisdiction of first instance and the High Court exercises the jurisdiction of final instance. When handling cases, the court adopts the double compound judgment procedure. A divorce case must go through two judgments. The first judgment is temporary and has no legal effect. Three months later, the court made a final judgment, which was a formal judgment. A formal judgment can be changed into an interim judgment or the same as an interim judgment. If the party refuses to accept the formal judgment, he can appeal to the High Court. The effective time of divorce judgment shall be subject to the law of the forum.

Regarding the effectiveness of divorce judgment in identity, the author thinks that the effectiveness of divorce judgment in child support, guardianship and marital support should also be based on the law of the court. With regard to divorce procedures, divorce in Chinese mainland shall be handled in accordance with mainland laws, and divorce in Hong Kong shall be handled in accordance with Hong Kong laws.

(3) the application of the law to the relationship between husband and wife

The relationship between husband and wife is the relationship of rights and obligations between husband and wife, including personal relationship and property relationship. The relationship between husband and wife belongs to the category of marriage validity, and it is also a problem that must be involved in the consequences of divorce. Therefore, the application of the law on the relationship between husband and wife is also an important issue to be solved in the interregional legal conflict between Chinese mainland and Hongkong.

The personal relationship between husband and wife includes the right to name, the right to decide on residence, the right to engage in professional and social activities, the obligation of cohabitation, the obligation of assistance, the obligation of chastity and so on. ⑥ In Chinese mainland, apart from Article 148 of the General Principles of the Civil Law and the judicial interpretation of this Article by the Supreme Court, "the law that has the closest connection with the dependents shall apply to maintenance", there is no clear provision on the application of the law concerning the personal relationship between foreign-related couples. However, the law of the country with the closest relationship with the dependents mentioned in this article can be the domestic law or household registration law of the dependents, the domestic law or household registration law of the dependents, or the law of the litigation place. In short, we should choose the most favorable law for the dependents as the applicable law. Therefore, the legal application of other aspects of husband and wife's personal relationship in Hong Kong-related cases can be implemented with reference to this.

The property relationship between husband and wife refers to the relationship of rights and obligations in property, which mainly includes the effect of marriage on the property before marriage, the ownership of the property obtained during marriage and the related creditor-debtor relationship. In private international law, when solving the legal conflict of marital property relations, the first consideration is whether the marital property system allows the parties to be conscious, whether it is a unified applicable law or different applicable laws for movable property and immovable property, and the principle of personal law of the parties.

In Chinese mainland, there is no standard to solve the conflict of property relations between foreign-related couples. Article 1980 of the Marriage Law stipulates that "the property acquired by husband and wife during the marriage relationship shall be jointly owned by husband and wife, unless otherwise agreed by both parties." Only in legislation, China's marital property relationship system is mainly the same ownership of husband and wife, and also recognizes the conscious autonomy of the parties to the marriage. The marital property system stipulates that the property during the existence of the marital relationship is the joint property of the husband and wife, and both parties have the right to divide the property together. However, this provision is relatively principled and abstract, and it is not easy to operate in practice. From the provisions of Articles 17 to 19 of the Marriage Law revised in April 20001year, we can see that the marital property system in China adopts a dual-track system, that is, the legal property system and the agreed property system are both adopted. However, judging from the relationship between the two, China currently determines the marital property system with the statutory property system as the mainstay and the agreed property system as the supplement. If both parties to the marriage have no agreement on property, or the agreement is unclear, or the agreement is invalid, the legal marital property system shall apply. This shows that the legal effect of the agreement between husband and wife on property issues is higher than the legal marital property system.

In Hong Kong, according to the provisions of the Marriage Ordinance, husband and wife practice their own property system, and whoever owns the property is the owner. The property acquired by husband and wife before and after marriage belongs to each other, and they exercise the right of management, income and disposition respectively, but it does not rule out that the wife gives the management right of her property to her husband in the form of contract or both parties own part of the same property. If the husband and wife have disputes over the ownership of the property, the parties concerned shall provide evidence to prove that they are the owners of the property.

Therefore, any dispute involving the property relationship between husband and wife, if the parties have an agreement, as long as this agreement does not violate the laws of the marriage place, will be agreed by the parties. If there is no agreement, the law of the place where the real estate is located shall apply to the real estate, and the law of the place where the property owner resides shall apply to the movable property. At present, most countries in the world apply the same conflict principle to the relationship between husband and wife, regardless of property relations and personal relations, so as to facilitate the court to handle foreign-related disputes in time. Accordingly, in judicial practice, the legal application of marital property relationship can be based on the legal application principle of marital personal relationship and the law with the closest relationship between husband and wife.

(four) the application of law to the relationship between parents and children.

The relationship between parents and children, also known as parent-child relationship, is based on whether the children are biological or adopted. Because the relationship between parents and children can be established in three ways: children born in wedlock, children born out of wedlock and adoption, there are three different applicable laws.

1, the law applicable to the relationship between children born in wedlock.

In Chinese mainland, there is no applicable law to determine the status of legitimate children. Only in the marriage law, it is considered that children born in wedlock are born or conceived in a legal and valid marriage, that is, whether children are born in wedlock depends entirely on the marital validity of parents. Hong Kong mainly takes the law of the father's domicile at the time of birth as the applicable law to decide whether children are born in wedlock or not. In private international law, the legislation to solve the problem of child marriage tends to choose the applicable law aimed at protecting children's interests. Therefore, the author believes that in the application of laws concerning the identity of legitimate children in Hong Kong, we should conform to this trend and apply laws that are more conducive to legitimate children.

2. Children born out of wedlock shall be subject to quasi-law.

Children born out of wedlock refer to children born out of wedlock and invalid marriage. In private international law, the system that children born out of wedlock obtain the qualification of legitimate children because of their parents' marriage or opinions is called quasi-correctness. There are three methods that are correct. One is corrected because parents get married afterwards. Second, the quasi-rightness is based on the behavior of the state (this method is helpful to solve the problem of quasi-rightness of children born out of wedlock when one parent dies or marriage becomes impossible for other reasons); The third is the biological father's claim to illegitimate children. In Hong Kong, the method of parents' marriage place or personal law is generally adopted to correct children born out of wedlock. In Chinese mainland, there is no legislation on quasi-correction, and there is no applicable law to stipulate various methods of quasi-correction. However, according to the spirit of the Letter on Confirming and Advocating Illegitimate Children issued by the Notary Lawyers Department of the Ministry of Justice in September 1988 and the Reply on Advocating Parent-child Relationship issued by the Notary Lawyers Department of the Ministry of Justice in June 23 1989, the identification of illegitimate children in China is based on the laws of the defendant's domicile or the petitioner's domicile, which conforms to the principle of protecting the legitimate rights and interests of illegitimate children. In judicial practice, according to the actual situation, we can adopt the law that is more conducive to the alignment of illegitimate children to protect the legitimate rights and interests of illegitimate children.

3. Application of adoption law.

Adoption is a system that creates parent-child relationship between adopters and other children (adoptees) through legal procedures. As far as the formal requirements are concerned, most countries advocate the application of the law of the place of adoption, while the substantive requirements of adoption generally apply to the court law, the personal law of the adopter, the respective domestic laws of the adopter and the adoptee, and the domestic laws of the adoptee.

Hong Kong law stipulates that the substantive elements of the establishment of adoption relationship shall be governed by the law of the forum. According to the relevant provisions of the Adoption Law and the Law of Chinese mainland on the Protection of Minors, and Article 3, paragraph 1, of the Measures for the Implementation of Adoption of Children by Foreigners in People's Republic of China (PRC) jointly issued by the Ministry of Justice and the Ministry of Civil Affairs on June 20 10, 5438+0993+06543810, 65438, "Adoption of children by foreigners in China shall conform to

Therefore, for adoption cases involving Hong Kong, the personal law of the adopter and the adoptee should be applied to the substantive elements of adoption, and the adoption place law should be applied to the formal elements of adoption.

To sum up, the interregional conflict of laws in China's marriage and family system is a new topic in the study of private international law in China, which has become the focus of civil law research. Among them, the application of law has a process of continuous exploration, and it will take a long time to solve these interregional legal conflicts. However, the specific operation of specific issues should focus on the reality of China and refer to the norms of private international law, so as to properly protect the legitimate rights and interests of both parties.