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Thoughts on the Provisions of Supplementary Marriage Registration in the Marriage Law
Time:2025-09-01 Views:1911
Introduction: The newly revised Marriage Law was promulgated and implemented on April 28, 2001. The revised Marriage Law has added many new contents compared to the original Marriage Law. For example, the prohibition of domestic violence and cohabitation between spouses and others, as well as the requirement for those who have not registered their marriage to complete the registration process, the establishment of the invalid marriage system and revocable marriage system, the improvement of the marital property system, and the establishment of a system where the wrong party has the right to request compensation for divorce caused by violations of legal prohibitions. The amendment of the Marriage Law not only has a historic impact on China's marriage and family relations, but also brings significant changes to the civil judicial practice related to marriage and family relations in China. This article only briefly elaborates on the legislative intention of the provision that "those who have not registered their marriage should reapply for registration" and the difficulties in its application in judicial practice.
1、 The provisions of the Marriage Law on retroactive marriage registration and the problems it brings to judicial practice
Article 8 of the new Marriage Law stipulates: "Both men and women who are required to get married must personally go to the marriage registration office to register their marriage. Those who meet the requirements of this Law shall be registered and issued a marriage certificate. Obtaining a marriage certificate establishes the marital relationship. Those who have not registered their marriage shall apply for registration again." This provision clarifies the premise that marriage must be registered, and in response to the reality that there are a large number of unregistered couples living together in the name of husband and wife in China, a flexible approach has been adopted, adding the provision that "those who have not registered their marriage should apply for registration again. The reason for this regulation is mainly due to the existing problems in China's marriage registration system, especially in remote areas with underdeveloped transportation, where it is still inconvenient for ordinary people to register their marriages. In some places, there are also situations where people take advantage of the opportunity to register their marriages for the parties involved, such as charging fees for transportation, which makes some men and women who meet the substantive requirements of marriage according to the Marriage Law not register their marriages because they do not belong to themselves. The revised Marriage Law clearly states that this group of people should apply for registration. The Marriage Law only stipulates that "registration should be supplemented", but how to "supplement" it? How to determine the effectiveness of supplementation? The Marriage Law does not have specific provisions, which poses a series of problems for judicial practice: firstly, for men and women who have not registered their marriage and file a lawsuit for "divorce" in court, will the people's court treat them as terminating illegal cohabitation relationships without mediation and reconciliation; Secondly, if a couple who have already completed the marriage registration file a divorce lawsuit in a people's court, when will the court determine whether they established their marital relationship from the time of the registration or from the mutually agreed "marriage" date; Thirdly, in cases of inheritance, upbringing, guardianship, etc. where the people's court involves unmarried men and women cohabiting in the name of husband and wife, shall they be treated as illegal cohabitants? If not, what can be considered as having a marital relationship? What constitutes illegal cohabitation? It is obvious that the legislative intention of the Marriage Law is to start from the actual situation in China, and not to recognize all men and women who meet the substantive requirements of marriage according to the Marriage Law but live together in the name of husband and wife without registering their marriage as illegal cohabitants, and require them to register again.
2、 The Supreme People's Court's interpretation of this article
How should we understand the provisions of Article 8 of the Marriage Law? After the promulgation of the Marriage Law, the Supreme Court issued Interpretation (1) on December 25 of the same year to better understand and apply the Marriage Law of the People's Republic of China. Article 4 of the Interpretation stipulates that if both parties apply for marriage registration in accordance with Article 8 of the Marriage Law, the validity of the marriage relationship shall be calculated from the time when both parties meet the substantive requirements for marriage stipulated in the Marriage Law. Article 5 stipulates that men and women who live together in the name of husband and wife without registering their marriage in accordance with Article 8 of the Marriage Law shall be treated differently if they bring a lawsuit to the court: (1) Before the promulgation and implementation of the Marriage Registration Regulations by the Ministry of Civil Affairs on February 1, 1994, if both parties have already met the substantive requirements for marriage, they shall be treated as a de facto marriage; （2） After the promulgation and implementation of the Marriage Registration Regulations by the Ministry of Civil Affairs on February 1, 1994, if both parties meet the substantive requirements for marriage, the people's court shall inform them to apply for marriage registration before accepting the case; Those who have not completed the marriage registration shall be treated as terminating the cohabitation relationship. Article 6 stipulates that if a man and a woman live together in the name of husband and wife without registering their marriage in accordance with Article 8 of the Marriage Law, and one party dies and the other party claims inheritance rights as a spouse, they shall be dealt with in accordance with the principles of Article 5 of this Interpretation.
The introduction of this explanation has played a very important guiding role in the correct application of the Marriage Law. Firstly, it has established the legal nature of "retroactive registration", which has legal retroactive effect. The retroactive registration is first carried out under the premise of meeting the substantive requirements of marriage. Before the registration is processed, its effectiveness is undetermined. After the retroactive registration, the marriage effectiveness is traced back to the time when the statutory substantive requirements of marriage are met.
The provision of Article 4 is to recognize that supplementary registration has retroactive legal effect. The effectiveness of a marriage relationship begins when both parties meet the substantive requirements for marriage as stipulated by the Marriage Law, which reflects the characteristic of "supplementation". If the legal retroactive effect of supplementary registration is not recognized, then there will be no difference between supplementary registration and initial registration, and the Marriage Law's provision for supplementary registration will lose its practical significance. Article 5 is a provision on the legal consequences arising from supplementary registration. Article 5, Paragraph 1, Item (2) stipulates the different legal consequences of retroactive registration and non retroactive registration, that is, retroactive registration shall be treated as divorce; Those who have not completed the registration shall be treated as terminating the cohabitation relationship. Article 6 is a provision on the identity in which the other party should claim inheritance rights in the event of the death of one party. If one party dies and the other party completes the marriage registration, they can enjoy the rights and obligations of a spouse.
3、 The difficulties and manifestations of applying this explanation in practice
The above provisions fully reflect the strong protection of the personal and property rights of the weaker party in marriage by legislators. There is a clear legal basis for handling personal and property disputes involved in such cases in judicial practice. But as a judge engaged in civil trial work, I still feel that this regulation has not completely solved the legal issues involved in supplementary registration. The purpose of legislators making this provision is not only to make a legal decision on such cases, but ultimately to resolve the personal and property relationships involved in such cases, so that the vulnerable party among men and women who live together without marriage registration can receive legal protection.
In families formed by men and women who live together without marriage registration, many of them are the main source of income for the family as the man works outside to earn money, while the woman takes care of household chores and children at home without any economic income. If the relationship between a man and a woman breaks down in such a situation and marriage registration is not completed, the rights of the woman cannot be guaranteed.
It is understandable for men and women who live together without marriage registration to apply for registration after living together, and to handle divorce according to the principles stipulated in the interpretation. But in real life, it is often the case that since both the man and the woman have not registered their marriage and are living together, if there is no crisis in their relationship, they usually do not think of reapplying for registration. When the relationship has already broken down and the court sues for "divorce", even if the people's court informs them that they can apply for marriage registration before the case is accepted, it is often difficult to implement this provision due to one party's unwillingness to apply for it. According to the current Marriage Registration Regulations, the only legal requirement for the establishment of a marriage in China is for both parties to personally register their marriage at the marriage registration authority. So both parties must voluntarily and personally go to make up for it. It is obviously unrealistic for the party with a financial advantage to demand voluntary registration when their relationship has already broken down. And the law cannot make mandatory provisions that violate the principle of freedom of marriage in order to protect the rights of the disadvantaged party. The provisions of Article 6 are even more difficult to implement. If one party dies, according to the principle of Article 5, it is also possible to reapply for registration. The party involved has already passed away, and their civil subject qualification has been extinguished, let alone their capacity for civil rights and civil conduct. How can the deceased party "personally" apply for registration? So the provisions of Article 6 are not feasible in practice. Therefore, the rights of the disadvantaged party among men and women who live together without marriage registration are still seen as "a moon in the water, a flower in the mirror", which is difficult to implement.
To effectively protect the rights of the vulnerable party in such cases, it is necessary to enhance the legal awareness of the whole nation, register marriage according to legal provisions, or timely apply for marriage registration after cohabitation before the crisis of love arises, so that one's rights are protected by law from the beginning. After all, remedies are the only way, and the degree of protection is also limited. Our legislative and judicial bodies may need to make more practical and feasible interpretations and regulations based on reality.
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