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【内容概述】结婚前送聘礼聘金是中国一习俗。但实践当中因聘礼聘金产生的一系列矛盾也越来越多，关于如何解决该些矛盾，婚姻法及相关解释均有一系列的解释，但有些解释在实际操作中仍然存在标准不突出的问题，即可操作性不强。如，当下关于离婚案件中，离婚后是否可退回聘礼聘金，以及如何认定婚姻法解释（二）第十条第二项关于“双方办理结婚登记手续但确未共同生活的”中如何确定“确未共同生活”并未做明确的解释及限定，因此笔者认为需结合实际情况，不能进行限制性解释，否则有违公平，也可滋生新型借婚姻骗财的犯罪行为。

【关键词】礼金  离婚  共同生活  退还 借婚姻索取财物

婚嫁之中男方要送彩礼、这不仅仅是中华民族的传统习俗，而且在当今时代仍然盛行。彩礼，又称聘礼，是指男女双方恋爱关系基本确定以后，按照当地习俗，男方在婚前给予女方一定数量的现金或财务，表示其欲与对方缔结婚姻的诚意。彩礼具有严格的针对性，必须是基于当地的风俗习惯，为了最终缔结婚姻关系，不得已而给付的，其具有明显的习俗性。这种目的性、现实性、无奈性，都不能否认。作为给付彩礼的代价中，本身就蕴含着两层含义：一、对方答应结婚；二、一方有与给付彩礼一方地借婚姻并长期共同生活意愿。假使虽然已办理结婚登记，并收取聘礼、聘金，但对方并未有同给付聘礼、聘金方共同生活之意愿，则仍然有违当初给付方给付聘礼、聘金之本意。

结婚前送的礼金，离婚后是否应当归还?目前依据最高人民法院关于适用《中华人民共和国婚姻法》若干问题的解释（二）第十条 当事人请求返还按照习俗给付的彩礼的，如果查明属于以下情形，人民法院应当予以支持：（一）双方未办理结婚登记手续的；（二）双方办理结婚登记手续但确未共同生活的；（三）婚前给付并导致给付人生活困难的。适用前款第（二）、（三）项的规定，应当以双方离婚为条件。可见，2003年12月25日最高人民法院颁布的《最高人民法院关于适用〈中华人民共和国婚姻法〉若干问题的解释》，为法院解决大量的婚约彩礼纠纷案件提供了法律依据，改变了以往法院裁判婚约彩礼纠纷案件无法可依的局面。但是，实践上法院在适用上述规定处理具体婚约彩礼纠纷案件时，结合对其他法院适用该条规定如何把握的了解，发现在适用中存在问题，直接影响着法院形象和法律的严肃性，亟待统一、规范。如：关于如何认定该解释第十条第（二）项中双方确已办理结婚登记单确未共同生活一事，目前司法实践当中存在两种观点：

第一种观点认为在决定彩礼是否返还时，应当以当事人是否以经缔结婚姻关系并且共同生活为主要判断依据的。给付彩礼后，未缔结婚姻关系的，即使存在长期同居关系原则上收受彩礼一方仍然应当返还彩礼，给付彩礼后已经办理结婚登记且长期不间断的共同生活，原则上彩礼不予返还。该司法解释作出该规定是依据通常做法即：给付彩礼，办理结婚登记、举办结婚仪式并共同生活这一程序依法作出规定的，即当事人给付彩礼后，双方未办理结婚登记，更谈不上共同生活，即便取消了婚约，给付方未达到与对方结婚的目的，彩礼应当返还。

事实上，目前双方登记结婚后，基于社会习俗及伦理观念，即使已办理结婚登记但尚未履行民间结婚仪式的，在普通老百姓观念里仍然不认为双方为合法夫妻关系，因此大部分年轻人迫于社会舆论是不经常居住一起，甚至办理结婚仪式前不共同生活。如果双方尚未共同生活，其就没有夫妻之间相互扶助的经历，也没有过多把双方共同联系在一起的纽带，其真正意义上的共同生活还远没有开始，此时双方离婚，彩礼应当返还。对于这点，各地方法院是没有异议的。对于已经生活过（含长期共同生活居住、间断性共同居住、短时间内共同居住），该种观点均认为已构成共同生活，在一方离婚时提起要求另外一方退还婚前给付的聘礼、聘金时，一律按照《婚姻法解释（二）》第十条第二项，认定为已登记并构成共同生活，法院予以驳回。[i]本文作者认为该种观点，实际上是对婚姻法司法解释（二）第十条第二项规定的限制解释，有违公平原则，同时也是对法条的片面认识和理解。

第二种观点认为在决定彩礼是否返还时，除考虑应当以当事人是否以经缔结婚姻关系并考虑共同生活时间长短为主要依据。彩礼是一种附条件的赠与，是以结婚为目的的赠与，如果没有达到实质意义上的结婚，这个条件就没有达到，那么这些彩礼就能拿回来。实质意义上的结婚，除了履行法律规定的程序外，仍需双方具有共同生活的意愿。假使有一方为了骗取另外一方的聘礼、聘金而假意与另外一方办理结婚登记，虽双方登记后，偶尔在一起生活，不能认定构成《婚姻法》解释二关于“共同生活”的认定。否则有违公平原则。也易一方达到骗取财物的目的，不利于社会和谐及对婚姻稳定性的疑惑。因此，该观点认为，所谓的共同生活是指较为长期、稳定的生活。夫妻生活和经济生活。如果只是同房一次也不能简单的认为是共同生活。对于间断性共同居住、短时间内共同居住也不能认定为共同生活，除非有一方可以认定有实际收入用于家庭开支的，双方已经构成实质意义上的共同生活。[ii]现在司法实践当中，法官对此大都持比较宽松的解释,只要两个在一起生活即认为构成共同生活，因此在男方离婚时要求退还聘礼、聘金时予以驳回该项诉讼请求。笔者认为，该解释是显失公平的。婚姻应当是建立在感情的基础上，双方除了履行《婚姻法》关于结婚的实质及程序性要求外，还应当达到婚姻的主要目的，即需达到实质意义上的婚姻，而不应当局限于登记及居住这一简单的程序层面。民间习俗给付聘礼、聘金的最终目的是希望双方能够长期的共同生活、互相扶持、照顾、履行一切作为夫妻应当履行的义务，享受作为夫妻应当享有的一切权利。因此当事人请求返还彩礼的法律依据，从某种意义上讲，我们可以把婚姻关系看成是一种契约关系。男女双方在恋爱期间属于要约和反要约阶段，从订婚时起到办理结婚登记前，可以看作是承诺阶段，也就是契约成立阶段。办理结婚登记，领取结婚证后，可以看作是合同生效阶段。从契约的角度来看，给与和收受彩礼的行为是发生在婚姻契约成立阶段。由于有了给与和收受彩礼的行为，才使得婚姻关系由成立阶段向生效阶段过渡有了一定的保证。而真正意义上的婚姻，履行法律规定的登记要件只是一个开始，真正实质意义上的婚姻应当是登记之后的双方共同生活，互相扶持、照顾等。

我们都知道彩礼返还问题不单单是一个简单的法律问题，而且也是一个实实在在的社会问题。虽然对这个问题众说纷纭，但理解透彻婚姻法的相关解释，无疑将更有助于处理好彩礼纷争，化解社会矛盾。从某些角度上来说，笔者不赞成婚姻缔结履行民间习俗，笔者认为是老劳命伤财易产生社会矛盾，不利于社会和谐，但结合目前一系列民间关于缔结婚姻应当履行的习俗就《婚姻法》解释（二）关于如何理解“共同生活”发表如下观点：

一、共同生活的实质存在，即构成实质意义上的共同生活。

基于社会习俗及伦理观念，即使已办理结婚登记但尚未履行民间结婚仪式的，在普通老百姓观念里仍然不认为双方为合法夫妻关系，因此大部分年轻人迫于社会舆论是并未长期共同生后，而是在办理结婚仪式前不共同生活或偶尔性、间断性的往来居住。换个方式说就是双方实质意义上真正的共同生活还没有开始。除此之外，在审判实践中亦经常遇到下列情形：当事人给付了彩礼、办理了结婚登记并举行了结婚仪式，但因种种原因双方未在一起共同生活的；或虽在一起共同生活但因双方性格各异很大，加之生活困难等原因，结婚时间不长即起诉离婚的；或双方结婚后因一方患有生理疾病，使双方徒有夫妻之名，而无夫妻之实，双方结婚时间不长，一方便据此起诉离婚的。在上述情形下，彩礼给付方由于给付彩礼，全家已债台高筑，生活陷于困境。若酌情返还彩礼，亦利于缓解矛盾，解决纠纷。

笔者认为，所谓的夫妻共同生活应当是指为双方为共同生活做准备，履行夫妻义务、享受夫妻权益的过程，该过程应当是长期性的，而非短期的，偶尔的、间断性的。实质意义上的共同生活，它既是婚姻关系生理和伦理价值的反应,也是社会主义婚姻家庭关系的本质要求,更是为建立社会主义新型的家庭关系和精神文明所必需的。如果简单的以登记后居住过，即认定为共同生活，是不符合《婚姻法》关于婚姻的真谛，也不符合民众对夫妻生活的正确认定。

二、真正意义上共同生活的意愿

意愿《现代汉语词典》中的含义为：愿望；心愿。如：尊重本人的意愿。唐李白《书情寄从弟邠州长史昭》诗：“谁言贵此物，意愿重琼蕤。”《武王伐纣平话》卷下：“知公此岸钓引，於天意愿，愿公表察。” 徐怀中 《西线轶事》：“无论他是出于什么考虑，我们总是应当尊重他个人的意愿。”婚姻作为特殊形态的契约，应当讲求合意，也就是说应当建立在双方共同生活的意愿上的。它是在双方合意的基础上结合的。

《婚姻法》的基本原则强调婚姻自由，所谓的婚姻自由包括结婚自由和离婚自由。笔者认为，所谓的结婚自由应当包含共同生活意愿的自由。现在虽为新新时代，什么都讲求各自意愿，但仍然不排除家长安排婚姻的现象存在。该现象虽然不同于旧习俗下的父母包办婚姻，但至少双方的婚姻仍然不是建立在相互信任，相互扶持，相互共同生活意愿的基础上的。男女双方的结合往往是基于各种原因，而非感情基础之上。因此，虽然双方是生活在一起，因无感情基础做铺垫因而并无共同生活之意愿，以致于往往双方生活不久即以离婚告终。

笔者认为，如果只是以简单的住在一起即认为构成共同生活，是不妥的。所谓的共同生活从意志形态上说首先应当是建立在共同生活意愿基础之上，从行为形态上说应当是生活在一起，即我们通俗的说法即吃住在一起，互相夫妻权益，互负夫妻义务；从时间形态上应当是有长期生活意愿，且该意愿是发自内心，我任何外在干扰下产生的；从意志形态上应当是有双方共同生活意愿。

三、考虑一方缔结婚姻的真正目的

    婚姻的目的是什么？不同的国家，不同的历史时期，有不同的表述。我国古代一直以“上以事宗庙，下以继后世”为婚姻的目的；基督教婚姻，结婚的目的在于子女的生养教育以及夫妻间的互相扶养和性要求的慰藉；近现代各国的法律也对婚姻的目的做了种种规定。这些“目的”虽然纷繁复杂，但透过这些表面的目的，我们可以发现它们有一点是共同的，那就是它们都强调结为婚姻的男女双方必须“共同生活”。这既是婚姻对当事人主观心理状态的要求，也是一直为人们所追求的婚姻在理想层次的含义。

所谓“共同生活”，是指居住在一起，成为同一个家庭的成员，处在同一个生活消费共同体中。一般情况下，还包括夫妻之间的性生活和夫妻间的互敬互爱。“共同生活”一般为“精神的生活共同（互相亲爱、精神的结合）、性的生活共同（肉的结合）及经济的生活共同（家计共有），”这是对“共同生活”全部内容的概括。有些学者认为在婚姻发展史上，婚姻目的经历了“由繁殖人种之目的进于主家事有嫡子之目的，再进于男女共同生活之目的”。[iii]这样一个过程，笔者认为，有婚姻以来，无论是为“繁殖人种”，还是为“主家事有嫡子”，都必须有共同生活。因此共同生活应始终是婚姻的目的。

四、 结语

家庭作为社会的基本组成单位，在维护社会秩序稳定、促进社会善良风俗等方面发挥着重要作用。婚姻是一个历史范畴的概念，是人类历史发展到一定阶段所出现的关于男女结为夫妻和组成亲属团体的制度形式，是实现人类自身再生产的唯一方式，是人类社会得以延续的必然途径。

婚姻应当是建立在和谐基础之上，它是客观存在的；结婚是一种行为，是对另外一半的承诺；婚姻关系则表示对于对方的责任；而婚姻的真实目的是双方在感情基础上的共同生活。婚姻应当是精神和物质的共同结合和寄托。没有感情基础，没有合意，没有共同生活意愿的婚姻是不道德的婚姻，是低质量的婚姻。

总之，婚姻法解释（二）第十条第二项关于“双方办理结婚登记手续但确未共同生活的”我们不能以简单的依据字面含义进行狭义论断，而是应当结合双方共同生活是否实质存在，双方是否有真实意义上共同生活的意愿，是否有缔结婚姻的真正目的。同时也应当参照公平合理原则进行论断。

我们都知道公平原则是指在民事活动中利益均衡的价值判断标准，同时又是一条司法原则，即法官的司法判决要做到公平合理，当法律缺乏规定时，应根据公平原则作出合理的判决。不难看出公平原则的具体运用，必须以自愿原则的具体运用作为基础和前提，如果当事人之间利益关系的不均衡，系自主自愿的产物，就不能谓为有违公平。

[i]《如何理解双方当事人订婚时给与的彩礼的返还》，宋丰，P2

[ii]《如何理解双方当事人订婚时给与的彩礼的返还》，宋丰，P3

[iii]胡长清，中国民法亲属论[M]，台北：商务印书馆，1977

Lawyer Zhu Qunqun from Zhejiang Liqun Law Firm

【 Content Overview 】 It is a Chinese custom to offer a gift and retainer before marriage. However, in practice, a series of contradictions arising from the employment of gift and retainer funds are also increasing. There are a series of explanations on how to solve these contradictions in the Marriage Law and related interpretations. However, some explanations still have the problem of not prominent standards in practical operation, that is, weak operability. For example, in current divorce cases, there is no clear explanation or limitation on whether the dowry and dowry can be refunded after divorce, and how to determine the second item of Article 10 of the Interpretation of the Marriage Law, which states that "if both parties have completed marriage registration procedures but have not lived together", there is no clear explanation or limitation on how to determine "if they have not lived together". Therefore, the author believes that it is necessary to combine the actual situation and cannot make restrictive explanations, otherwise it is unfair, It can also breed new types of criminal behavior of cheating money through marriage.

【 Key Words 】 Gift, Divorce, Shared Life, Refund, Borrow Marriage, Claim Property

It is not only a traditional custom of the Chinese nation for the man to give a dowry during marriage, but it is still prevalent in today's era. A dowry, also known as a dowry, refers to the act of giving a certain amount of cash or financial support to a man or woman before marriage, in accordance with local customs, after the romantic relationship between the man and the woman has been basically established, to show their sincerity in entering into a marriage with the other party. The dowry has strict targeting and must be based on local customs and habits. It must be paid as a last resort in order to ultimately establish a marriage relationship, and it has obvious customs. This purposefulness, realism, and helplessness cannot be denied. As the price of paying the dowry, it itself contains two meanings: first, the other party agrees to get married; 2、 One party has the intention to borrow marriage and live together for a long time with the other party who pays the dowry. If, although marriage registration has been completed and dowry and dowry fees have been collected, the other party does not have the intention to live together with the paying party, it still violates the original intention of the paying party to pay dowry and dowry fees.

Should the gift money given before marriage be returned after divorce? At present, according to the interpretation of the Supreme People's Court on several issues concerning the application of the Marriage Law of the New Marriage Law (II) Article 10, if a party requests to return the betrothal gifts paid according to custom, the people's court should support it if it is found that the following circumstances exist: (I) Both parties have not gone through marriage registration procedures; （2） Both parties have gone through marriage registration procedures but have not yet lived together; （3） Premarital payment that causes difficulties for the payer's life. The application of the provisions of items (2) and (3) of the preceding paragraph shall be conditional on the divorce of both parties. It can be seen that the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the New Marriage Law, issued by the Supreme People's Court on December 25, 2003, has provided a legal basis for the courts to resolve a large number of marriage betrothal gifts disputes, and has changed the situation that courts cannot rely on in judging marriage betrothal gifts disputes in the past. However, in practice, when the court applied the above provisions to deal with specific marriage betrothal gifts disputes, it found that there were problems in the application, which directly affected the image of the court and the Seriousness of the law, and needed to be unified and standardized. For example, there are currently two opinions in judicial practice on how to determine the fact that both parties have already completed the marriage registration form but have not lived together in Article 10 (2) of this interpretation:

The first viewpoint holds that when deciding whether to return the dowry, the main basis for determining whether the parties have engaged in a marriage relationship and live together should be based on whether or not. After paying the dowry, if the marriage relationship has not been established, even if there is a long-term cohabitation relationship, the party receiving the dowry should still return the dowry. After paying the dowry, if the marriage registration has been completed and there is long-term uninterrupted living together, the dowry will not be returned in principle. The judicial interpretation makes this provision based on the usual practice of paying a dowry, registering for marriage, holding a wedding ceremony, and living together. This procedure is legally stipulated, that is, after the parties pay the dowry, the two parties do not register for marriage, let alone live together. Even if the marriage agreement is cancelled and the paying party fails to achieve the purpose of marrying the other party, the dowry should be returned.

In fact, after both parties register for marriage, based on social customs and ethical concepts, even if the marriage registration has been completed but the folk marriage ceremony has not yet been performed, the common people still do not consider the two parties to be a legitimate marital relationship. Therefore, most young people are forced by social public opinion to not live together frequently, and even do not live together before the marriage ceremony. If both parties have not yet lived together, they will have no experience of mutual assistance between husband and wife, nor too many bonds that connect them together. Their true sense of shared life is far from beginning. At this time, when both parties divorce, the dowry should be returned. There is no objection from the local courts to this point. For those who have already lived together (including long-term living together, intermittent living together, and living together for a short period of time), this view is considered to constitute living together. When one party requests the other party to return the dowry and dowry paid before marriage in the event of divorce, it shall be deemed registered and constitute living together in accordance with Article 10 (2) of the Interpretation of the Marriage Law, and the court shall reject it. [i] The author of this article believes that this viewpoint is actually a restrictive interpretation of Article 10 (2) of the Judicial Interpretation of Marriage Law, which violates the principle of fairness and is also a one-sided understanding and understanding of the legal provisions.

The second viewpoint holds that when deciding whether to return the dowry, the main basis should be based on whether the parties have entered into a marriage relationship and the length of time they have lived together. A dowry is a conditional gift that is given for the purpose of marriage. If the actual condition of marriage is not met, then these dowries can be retrieved. In essence, marriage requires both parties to have the willingness to live together, in addition to fulfilling legal procedures. If one party falsely applies for marriage registration with the other party in order to defraud them of their dowry or dowry, although both parties occasionally live together after registration, it cannot be considered as constituting the determination of "living together" in Interpretation 2 of the Marriage Law. Otherwise, it violates the principle of fairness. It is also easy for one party to achieve the purpose of defrauding property, which is not conducive to social harmony and doubts about marital stability. Therefore, this viewpoint holds that the so-called common life refers to a relatively long-term and stable life. Husband and wife life and economic life. If we only share a room once, we cannot simply consider it as living together. Intermittent co habitation or short-term co habitation cannot be considered as co habitation, unless one party can determine that there is actual income used for household expenses, and both parties have already formed a substantial co habitation. In current judicial practice, judges mostly hold a relatively lenient interpretation of this, as long as two people live together, it is considered to constitute a common life. Therefore, when the man requests a refund of the dowry or dowry upon divorce, the lawsuit request is rejected. The author believes that this explanation is significantly unfair. Marriage should be established on the basis of emotions. In addition to fulfilling the substantive and procedural requirements of the Marriage Law regarding marriage, both parties should also achieve the main purpose of marriage, which is to achieve a substantive marriage, and should not be limited to the simple procedural level of registration and residence. The ultimate purpose of paying dowry and dowry in folk customs is to hope that both parties can live together for a long time, support each other, take care of each other, and fulfill all the obligations that should be fulfilled as a couple, and enjoy all the rights that should be enjoyed as a couple. Therefore, the legal basis for the parties to request the return of the dowry is that, in a sense, we can view the marital relationship as a contractual relationship. During the period of love, both men and women belong to the offer and counter offer stages. From the time of engagement to the time of marriage registration, it can be seen as the acceptance stage, which is the stage of contract formation. It can be regarded as the effective stage of the contract after the marriage registration is completed and the Marriage certificate is obtained. From the perspective of a contract, the act of giving and receiving dowry occurs during the establishment stage of a marriage contract. Due to the act of giving and receiving dowry, the transition from the establishment stage to the effective stage of the marriage relationship is guaranteed to a certain extent. In the true sense of marriage, fulfilling the registration requirements stipulated by law is only the beginning. In the true essence of marriage, both parties should live together, support and take care of each other after registration.

We all know that the issue of returning dowry is not only a simple legal issue, but also a real social issue. Although there are various opinions on this issue, a thorough understanding of the relevant interpretations of marriage law will undoubtedly be more helpful in handling dowry disputes and resolving social conflicts. From a certain perspective, the author does not agree with the fulfillment of folk customs in the conclusion of marriage. The author believes that it is due to the old labor and injury to life and wealth, which can easily lead to social conflicts and is not conducive to social harmony. However, based on a series of current folk customs that should be fulfilled in the conclusion of marriage, the interpretation (2) of the Marriage Law expresses the following views on how to understand "living together":

1.The essential existence of shared life constitutes a substantial sense of shared life.

Based on social customs and ethical concepts, even those who have registered for marriage but have not yet performed the folk marriage ceremony still do not consider the two parties to be legitimate husband and wife relationships in the minds of ordinary people. Therefore, due to public opinion, most young people do not live together for a long time, but do not occasionally and intermittently live together before the marriage ceremony. To put it another way, the actual mutual life of both parties has not yet begun. In addition, in judicial practice, the following situations are often encountered: the parties have paid a dowry, registered for marriage, and held a wedding ceremony, but due to various reasons, the two parties have not lived together; Or, although living together, due to significant differences in personality between the two parties, coupled with difficulties in life, if the marriage is not long enough, they will sue for divorce; Or if after marriage, one party suffers from a physiological illness, resulting in both parties having only the name of husband and wife and no actual marital status, and the marriage time is not long, it is convenient for both parties to sue for divorce based on this. In the above situation, due to the payment of the dowry, the whole family has become heavily indebted and their lives are in dire straits. If the dowry is returned as appropriate, it is also conducive to alleviating conflicts and resolving disputes.

The author believes that the so-called joint life between spouses should refer to the process of preparing for the common life, fulfilling marital obligations, and enjoying marital rights for both parties. This process should be long-term, rather than short-term, occasional, and intermittent. In essence, living together is not only a reflection of the physiological and ethical values of marriage, but also an essential requirement of socialist marriage and family relationships. It is also necessary for establishing a new type of socialist family relationship and spiritual civilization. If we simply consider living together after registration, it is not in line with the true meaning of marriage in the Marriage Law, nor does it conform to the correct recognition of marital life by the public.

2. The willingness to live together in a true sense

The meaning in the Modern Chinese Dictionary is: desire; Wish. For example, respect one's own wishes. Tang Libai wrote a poem in "The Book was sent from Governor Shi Zhao of Dibin": "Who would like to value this thing?" Volume II of "King Wu's Attacking on Zhou Pinghua": "Know that the public is fishing on the shore, and wish that the public would observe." Xu Huaizhong's "Anecdotes of the West Line": "No matter what his consideration is, we should always respect his personal will." Marriage, as a special form of contract, should focus on consensus, That is to say, it should be based on the willingness of both parties to live together. It is combined on the basis of mutual agreement.

The basic principles of the Marriage Law emphasize freedom of marriage, which includes freedom of marriage and freedom of divorce. The author believes that the so-called freedom of marriage should include the freedom to live together. Although it is a new era and everything demands one's own wishes, it still cannot be ruled out that parents arrange marriages. Although this phenomenon is different from the parents' Arranged marriage under the old custom, at least the marriage between the two parties is not based on mutual trust, mutual support, and mutual willingness to live together. The union between men and women is often based on various reasons rather than emotional foundations. Therefore, although both parties live together, they do not have the intention to live together due to the lack of emotional foundation, which often leads to divorce shortly after their lives.

The author believes that it is inappropriate to simply consider living together as constituting a shared life. The so-called common life should first be based on the willingness to live together in terms of willpower, and then in terms of behavior, it should be living together. In our common saying, we eat and live together, have mutual marital rights, and bear mutual marital obligations; In terms of time form, there should be a desire for long-term life, and this desire comes from the heart and is generated under any external interference from me; From the perspective of willpower, there should be a willingness for both parties to live together.

3. Consider the true purpose of one party entering into a marriage

What is the purpose of marriage? Different countries and historical periods have different expressions. In ancient China, the purpose of marriage was always to "serve the ancestral temple at the top and inherit the descendants at the bottom"; Christian marriage, where the purpose of marriage is to provide children with upbringing and education, as well as mutual support and sexual comfort between spouses; The laws of modern countries have also made various provisions on the purpose of marriage. Although these 'purposes' are complex and diverse, through their superficial purposes, we can find that they share one thing in common, which is that they emphasize the need for both men and women in marriage to' live together '. This is not only the requirement of marriage for the subjective psychological state of the parties involved, but also the ideal meaning of marriage that has always been pursued by people.

The so-called "shared life" refers to living together, becoming members of the same family, and living in the same consumer community. In general, it also includes sexual activity between spouses and mutual respect and love between spouses. The term 'shared life' generally refers to 'shared spiritual life (mutual love and spiritual union), shared sexual life (physical union), and shared economic life (shared family and family).' This is a summary of the entire content of 'shared life'. Some scholars believe that in the history of marriage, the purpose of marriage has gone through "the purpose of breeding a race, the purpose of having legitimate children in charge of family affairs, and then the purpose of living together between men and women". [iii] In this process, the author believes that since marriage, whether for the purpose of "breeding a race" or "having legitimate children in charge of household affairs", there must be a common life. Therefore, living together should always be the purpose of marriage.

4. Conclusion

As the basic unit of society, the family plays an important role in maintaining social order and stability, promoting good social customs, and other aspects. Marriage is a historical concept that has emerged at a certain stage in human history. It is the institutional form in which men and women form spouses and form kinship groups. It is the only way to achieve human reproduction and an inevitable way for human society to continue.

Marriage should be established on the basis of harmony, and it objectively exists; Marriage is an act, a promise to the other half; A marital relationship represents a responsibility towards the other party; The true purpose of marriage is for both parties to live together based on their emotions. Marriage should be a joint combination and sustenance of spirit and material possessions. A marriage without emotional foundation, agreement, or willingness to live together is immoral and of low quality.

In summary, Article 10 (2) of the Interpretation of the Marriage Law states that "if both parties have completed the marriage registration procedures but have not yet lived together", we cannot make a narrow judgment based on the literal meaning. Instead, we should consider whether both parties have a substantial existence of a common life, whether both parties have a genuine intention to live together, and whether there is a true purpose for concluding a marriage. At the same time, judgments should also be made based on the principle of fairness and reasonableness.

We all know that the principle of fairness refers to the Value judgment standard for balancing interests in civil activities, and it is also a judicial principle, that is, the judicial decisions of judges should be fair and reasonable, and when the law lacks provisions, reasonable decisions should be made according to the principle of fairness. It is not difficult to see the specific application of the principle of fairness, which must be based on the specific application of the principle of voluntariness as the foundation and premise. If the interests between the parties are imbalanced and the product of voluntary autonomy, it cannot be considered as violating fairness.

[i] How to Understand the Return of Lottery Gifts Given by Both Parties at the Time of Engagement, Song Feng, P2

[ii] "How to Understand the Return of Betrothal Gifts Given by Both Parties at the Time of Engagement", Song Feng, P3

[iii] Hu Changqing, Chinese Civil Law Theory of Kinship [M], Taipei: Commercial Press, 1977