An Exploration On Setting Up Separation System In This Country

The Bible says that marriage is arranged by God, and human could not separate. Separation as a kind of legal system is established in the form of temple legislation by European Christian Church in the Middle Ages, which is the product of Christian's doctrine of ban on divorce. According to the doctrine of church, the union of husband and wife is arrangement of god rather than artificial. Law of the Twelve Tables in ancient Roman times inherits the separation system and considered separation as the legal ground of divorce. The fourth piece of the sixth table of Law of the Twelve Tables formulates that: if the wife do not have the willing to end the husband authority marriage which is according to the possession effectiveness of one year, she should sleep out for succession of three nights to suspend the completion of effectiveness, which is the first legal rule on separation. However, Law of the Twelve Tables merely takes fact as the legal reason for divorce, and have no rules for legal process, and legal consequences. As the time passes and the continuous development of legal civilization, separation system of new era already has new notion, and scholars of China have various definition for separation system, while whatever the definition of separation is, it must cover the following two contents: Firstly, obligation of living together between wife and husband is exonerated. Obligation of living together between wife and husband is the obligation of living together with the role of spouse after ending the marriage, which includes the sexual life obligation between husband and wife, sleeping and eating together obligation between husband and wife and joining in common effort obligation between husband and wife, etc. Here, the exemption of living together mainly refers to exempting the obligation of living together in which sexual life is included. Secondly, marriage relations between husband and wife still remain. Separation is a legal system which releases the living together obligation between husband and wife according to the law. Many countries in the world have stipulated the separation system, the existing marriage and family law in China has on rules on this system, which violates the development trend of world wide marriage and family law, besides, the phenomenon of separation exists abundantly in China, which demands objectively the addition of separation system in law of China. In this thesis, the author has demonstrated the establishment of separation system in China, and suggested to add separation system to the laws of China.This thesis is divided into 3 parts:Part-I: It is about the definition of notion and character analysis of separation. This part mainly defines the connotation of separation, and gets a better understanding of separation by differentiating and analyzing the systems which related to separation. Separation refers to separation releasing the living together obligation between husband and wife under the premising of marriage relation maintained.Part-II: It is about the necessity and possibility of constructing separation system in China. The focal point of necessity of constructing separation system in China lies in illustrating the significance for establishing separation system in China, for instance, establishing separation system could guarantee the marriage liberties of people effectively, reduce the domestic violence, prevent divorce indiscreetly, and guarantee the interests of aggrieved party, children, and the third party, and also, cost for suing could be saved, existing marriage law system in China could be perfected, and dealing with marriages concerning foreign affairs and marriages concerning Hong Kong, Macao and Taiwan better. The possibility of constructing separation system in China is to proceed from our national conditions, to illustrate the issue of possibility of transplanting separation system.Part-III: It is about the legislation idea of constructing separation system in China. This chapter focus on illustrating the specific designing of separation system in China, and the author thinks that the following contents should be included when stipulating separation system: legislation model of separation, separation pattern, constitutive requirements of separation, termination and duration of separation, and law effects of separation.