On The Legal System Of Spousal Separation In China

In modern society, the couple separated because of emotional discord already is anobjective fact,China’s current family law has recognized the fact of separation due to discordfor two years as one of the legal grounds to prove the fact that marital relationship has beenbroken. This is worthy of recognition,but it has lacked of clear rules to regulate the maritalrelationship and parent-child relationship.If law ignores the fact that spousal rights andobligations has been changed during the period of separation,still uses general rules toregulate the relationship of separation, the result may violate fair value, does not meet therequirements to protect the legitimate rights and intersts of the parties.Besides,the fact that thelegislation has not been clear on the meaning of separation and interruption of the separationcauses the difficulty to recognize separation in judicial practice. This indicates that with socialdevelopment,our family law shall not adjust to meet the actual needs of marriage and familyrelations becaues the lack of appropriate norms of separation. Therefore, the study of maritalseparation system shall be beneficial to improve the legislation,and lay the theoreticalfoundation for the creation of separation law norms.This paper puts the separation syestem asthe research object, justifies the legitimacy of the creation of the separation system,andconsructs the specific separation rules. This paper contains5chapters,except the introduction.Chapter one discusses the basic theory on spousal separation. This chapter should bedivided into two sections. The section one firstly studies the etymology of the wordseparation,and permits a sense of separation concept by the means of comparison of conceptfrom the perspective of semantics and jurisprudence. Secondly, the concept of separation shallbe deconstructed from the two dimensions of the basic features and elements,and Points outthat the separation will have four basic characteristics which are the will of the body,theobligations to be fulfilled,the procedures to accord with the law,and the dual nature of thelegal effect. On the constituent elements of separation, there is constituted of static anddynamic constitution,the static constitution includes the main elements,the subjective element, object element, objective factors and so on. The dynamic constitution includes reasons forchanges of separation relationship,and the changes in the results and so on.Thirdly,theconception separation shall be typed rom different angles. Depending on the couple separatedsubjective attitude,the separation can be divided into “slices separation”and “consensualseparation”. Depending on the different length of the period of separation, the separation canbe divided into “irregular separation” and “periodic separation”. Depending on separationprocedures, the separation can be divided into “judicial separation”,“consensual separation”,“the de facto separation”. Finally, the concept of separation and abandonment, the concept ofseparation and divorce shall be distinguished from a different angle. The section two discussesthe legal characteristics.It mainly analyses the legal nature of separation from fourperspectives and noted that, separation rights are positive claims, Separation behavior is legalacts, Separation behavior is the formation of behavior, Separation specification is an importantinstitution of marriage laws.Chapter two discusses the historical survey and comment of separation.It mainlyinspects the spousal separation from the historical dimension, examines the history ofevolution of relationship between separation and divorce, and analyzes the difference ofseparation between china and foreign countries from the perspective of legal culture ofdivorce. This chapter shall be divided into three sections. The section one describes thehistorical evolution of the history of relationship between separation and divorce in foreignlaw. Firstly,it observes the establishment and lifting rules of “aging marriage” in Romanlaw,and notes that “aging marriage”shall not be regarded as rules of origin separationsystem.Secondly,it introduces the divorce legislation doctrine and formation and developmentof the system of separation in western europe during the middle ages from threeperspectives,which are the Christian view of marriage, the legal effect of the practice and theseparation of church law regime. Finally, it introduces modern foreign divorce legislationdoctrine transmutation and perfection of separation system from three perspectives,which arethe Basis of foreign divorce legislation to modern transmutation, the change of divorcelegislative doctrine,and the “destiny”of separation system. The section two discusses the historical evolution of the relationship between separation and divorce in china law.Itobserves the historical evolution by the time dimension of ancient China, the Republic ofChina, and after the founding of New China. The section three discusses the comparison ofSeparation and divorce relationship between chinese and foreign legislation by theperspective of divorce Law culture.It Investigates the difference of separation between Chinaand foreign legislation by the perspective of divorce Law culture and notes that whether aState has separation legislation shall be connected with legal culture in certain period.In thedivorce laws cultural context of “home-based”,“god-centered”,and“individual-standard”,The reason why there are differences in the relationship between separation and divorcelegislation shall be that different understanding of marriage in different legal context.Chapter three discusses the basis of the establishment of the system of spousal separaionfrom four perspectives. This chapter shall be divided into three sections. The section onediscusses social basis of the establishment.Firstly,it observes the new issue of divorce practicesince the emergence of the field of reform and opening up from two perspectives,which aresocial facts of divorce and remarry rate, and an empirical Analysis of the fact that the coupleseparation before divorce, introduces community initiatives to deal with the new problems ofdivorce, and notes that the establishment of separation has appropriate social basis in china.The section two discusses economic basis of the establishment.Firstly,it analyzes the divorceon the individual and society “cost–benefit” from the perspective of economics.Secondly,itnotes that the goal of divorce law shall be to realize the balance the individual and society“cost–benefit” of divorce. Lastly,it points out that the establishment of the separation systemshall be the regulation of the new issue of the possibility of divorce approach on the basis of“Menger law” theory. The section three discusses ethical basis of the establishment.Firstly,itintroduces the traditional and modern concepts of marriage and family.Secondly,it observesthe impact of modern marriage cause of marriage and family from the perspective of mateselection, marriage foundation, sexual attitudes,and divorce concept,and points out that it shallreturn to marriage and family.The establishment of separation system shall Reshape a new eraof marriage and family ethics. The section four discusses legal basis of the establishment. Firstly,it analyzes the marriage and family Relations in the context of globalization,points outthe defects of the existing law.Secondly,it observes the choice of modern marriage legislationbetween legal Inheritance and legal transplantation from a historical perspective,and pointsout that the establishment of separation system shall be legitimacy from twoperspectives,which are the value of the cognitive basis of convergence,the separationlegislation in Hongkong and Macao.Chapter four discusses the legislative goals, functions and values of establishment ofseparation.This chapter shall be divided into three sections. The section one discusses thelegislative goals of establishment of separation.It points out that the legislative goals ofestablishment of separation shall be guarantee freedom of divorce, preventing frivolousdivorce and safeguard the interests of the weak. The section two discusses the functions ofestablishment of separation.It points out that the functions of establishment of separationincludes “norms and guidelines”,“buffer and repair”,“control and protection”,and protectionand relief and so on. The section three discusses the values of establishment of separation.Itpoints out that the establishment of the system of separation has legislative, judicial, andsocial values from the perspective of the instrumental value of law,and implies a fair, orderlyand other value targets from the perspective of the purpose of the value of law.Chapter five discusses the establishment of separation in china from the perspective ofentities and procedures of law. This chapter shall be divided into four sections. The sectionone discusses the form, subject matter and the legislative system of separation.It observes thethe form, subject matter and the legislative system of separation from two dimensions of thecomparative law and scholars view,and points out that the form, subject matter and thelegislative system of separation in china law.In the form of separation procedure,when onespouse wants to separate,he or she shall choose facto separation system or judicial separationsystem.When spouse want to separate,they shall choose Separation consultation system,butthey shall go to the marriage registration office and notary public to register. In the subjectmatter of separation,when wife and husband do not want to live together because ofdiscord,they shall choose separation.In the legislative system of separation,it shall adopt the German model.The spouse who wants to divorce shall separate beore divore,but if wife orhusband disobey the marriage obligation,he or she who shall not endure can choose divorcedirectly. The section two discusses the recognization of separation.Firstly,it summarizesproblems of finding separation fact in judicial practice.Secondly,it introduces the method torecognize separation from two dimensions of the comparative law and scholars view,andpoints out that recognization of separation requires to clear separation of fact substantivestandards, and to use evidence possibility dominant standard in standard of proof. The sectionthree discusses the legal effect of separation.It mainly investigates the legal effect of spousalrelationship and parent-child relationship. For questions about the effectiveness of maritalseparation of personal relationships, it mainly investigates the personal relationships such assurname right, duty of loyalty, family dealership,and marriage and family housing decisionfrom two dimensions of the comparative law and scholars view during separation. Couplesstill have the right to use their surnames, bear faithful obligations. In principle, the dailyhousework agency suspends,however,when wife or husband meets life difficulty,or one shallnot raise and educate their children, the daily housework agency shall not suspend.For theproblems of marriage housing allocation,parties shall make agreement.If they cannot makeagreement,they shall make lawsuit. For questions about the effectiveness of marital separationof property relations, it mainly investigates the property relations such as support obligation,property system,and inheritance from two dimensions of the comparative law and scholarsview during separation.The couple still have mutual support obligations,but if the bedependents make crime or serious willful violations to the dependent or one of his or her closerelatives,or intentional cause himself infliction of poverty,or willful disregard obligor’ssubstantial property interests,or Seriously breach of the obligation to help support theirfamilies, the dependents may request to reduce the amount of alimony. Husband and wifejointly owned property can not be divided,but they can liquidate and valuate the commonproperty,and set the property manager. One of the spouses or the third person who is chosedby the spouse can hold the post of manager. Management costs are beared by the husband andwife.After separation,the spousal shall make agreement on the ownershiop of the property which was obtained during separation.If they cannot make agreement, the separation ofproperty regime applies.If the couple make reconciliation,they shall make agreement on theproperty regime.When they cannot make agreement, the separation of property regime applies.If wife or husband dies during the separation,the surviving spouse has the right to inheritancein principle.However, if the decedent wills disinherit living spouse,or the decedent andsurvival spouses had noted that they have no inheritance mutually in the separationagreement,or if survival spouse has serious offense to separation, or implement serious faultbehavior during the separation, and the serious fault is the legal situation caused loss ofinheritance,the living spouse has no inheritance.Meanwhile, If there is in the form of a willdisinherit spouse survival, and survival spouse has no legal situation without leading to loss ofinheritance, the spouse, survival in both without labor ability and no source of income, shallhave the right to treu copy. To the problem of the effectiveness of the separation ofparent-child relationship,it mainly observes parent-child relationship such as the cognizanceof the parent-child relationship, and exercise of parental authority and so on from twodimensions of the comparative law and scholars view during separation.It notes that Childrenborn after300days after his parents separated, in principle, shall not apply to the father andson relation estimation, unless there is contrary evidence, if there is evidence that bothspouses have cohabitation of the facts before the birth of their children, or of the mother’shuaband’s statement for the children of his father. As to the mother-children relationshipduring the period of separation, it shall be in accordance with the facts or the birth certificateof delivery. If child birth certificate records and delivery is inconsistent with the facts, inprinciple, it shall be subject to a birth certificate, but in the case of a contrary evidence, thefact of delivery shall prevail. During the period of separation to adopt, the mutual meaning isexpressed as necessary. Exercise questions about parental authority, allowing the exercise ofthe parental authority agreed upon through consultation by the parties involved. Ifconsultation fails, one spouse should be filed the lawsuit to the people’s court, by the people’scourt for ruling. Court may, according to the most conforms to the principle of children’s bestinterests, rule the parental authority exercised jointly by one side or both sides. In parental authority exercised by a parent, parents may agree some matters shall be decided by mutualagreement, or agree that their children’s property shall be managed by the party who exercisesparental authority. Not to exercise parental authority side can keep close relationship withtheir children, enjoy the opportunity to communicate with their children and rights, and shallhave the right to supervise their children’s education and life. In addition, if one or bothparents to exercise parental authority does not conform to the principle of best interests ofchildren, the court shall have the right to judge parental authority by interest is most closelyconnected with their children of the third person or social welfare institutions to exercise. Oneor both parents have exercise parental authority requirement, you can ask the court for theparental authority of the change. In addition, to protect the best interests of their children, weshall set up supervisor of parental authority. The section four discusses the term andtermination of separation.Firstly,it introduces the term and termination of separation rom twodimensions of the comparative law and scholars view during separation and notes that lawshall make it clear which includes the settlement way, effectiveness and procedures.Reconciliation is not a separation,but it shall limit the recovery period of cohabitation limit.Anyone cohabitation more than after the deadline and continue to separate, are disrupted, andseparation must be recalculated during separation. Couples separated by divorce and end, thetwo sides agreed to divorce after couples separated, separation time limit shall be stipulatedfor one year. On both sides of husband and wife separated two years,it shall presume feelingsirreparable rupture, granting a divorce. The expiration of the separation due to the death, thecase includes both natural causes of death, including declared dead. In separation due toexpiration and termination, in conformity with the divorce conditions, either party shall havethe right to request divorce. The parties shall not request divorce,it shall be presumed to begood. In case one party still not resume live together, the other party can initiate a restorecohabitation proceeding.