我国事实婚姻制度之重构

事实婚姻制度有利于保持法律秩序与人伦秩序的契合,也有利于实现法律的实质公平正义,我国立法应有条件承认事实婚姻的效力,并重构事实婚姻制度。除符合结婚实质要件和未办理结婚登记外,事实婚姻当事人应具有结婚合意,其认定因是否举行结婚仪式而有所区别;双方共同生活持续一定时间或在共同生活期间生育子女可作为具有婚姻实质内容的标志;只要依社会一般观念,第三人足以信赖双方当事人为婚姻配偶即可认定其具有婚姻外观,而不能将＂以夫妻名义＂同居生活作为绝对标准。事实婚姻应由法院予以认定,一经认定即具有全部婚姻效力。

On Reconstruction of the De Facto Marriage System in China

The de facto marriage system is favorable for keeping legal order consistent with life order and realizing justice and equality in substance. Legislation should reconstruct the de facto marriage system in China. both parties of a de facto marriage should have intent to marry, identification standards of which vary according to whether a wedding ceremony was held or not. It could be seen as substantial content of marriage that two parties have lived together for some time continuously or there was a child born while they were living together. It is not necessary to determine marriage appearance according to the title of ＇ husband＇ and ＇ wife＇ so long as any third party believes, with reason, that the two persons in question are spouses. De facto marriage should be recognized by courts.