| This article has discussed that separation system should be established in the Law of Marriage and Family. Separation, also called living apart, refers to a kind of law system terminating cohabitation obligation of man and wife but still retaining their marriage relationship. The two Marriage Laws issued in 1950 and 1980 since the establishment of our country did not make any stipulation on the separation system, while item 4 of article 3 in clause 32 of Marriage Law Amendments in year 2001 took separation for 2 years because of incompatibility as a standard of emotion breaking up, which is just an approval on actual separation but not separation system. It is still a blank to be adjusted in judicial practice on how to identify actual separation and rights and obligations of man and wife during their separation, which has caused large amounts of contradicts. By comparison and analysis of judicial practice of separation system abroad and combining our condition, this article has provided the conception and suggestion to establish our own separation system. The article has been divided into four parts as follows:Part-I. Overview of separation system. Firstly, the article introduces the concept and connotation of separation system separately. The basic meaning of separation includes two aspects as separation obligation exemption and marital relations retaining. By comparing the distinctions and connections on meaning, expression and function of separation with cohabitation, cohabitation between man and wife in general meaning and divorce, the article has further revealed the existing value of separation system. To form separation in lawful meaning, four necessary conditions as capacity of being a subject, willingness of separation subjectively, living in different places objectively and statutory period are needed. Therefore, separation has statutory features as being legal, dualism in object, buffering, transferable, time limited and exclusive. According to different standards, separation could be divided into different types. It could be divided into permanent separation, separation without day and regular separation by time; according to the procedure, it could be divided into agreement separation and judicial separation; according to the relationship between separation and divorce, it could be divided into separation before divorce, separation and divorce in parallel and transformation of separation and divorce. Legal consequence caused by separation mainly embodies on the change of spouse status, especially taking cohabitation obligation removing as the core, and then the change of their property and relationship with their children. It is a common legal convention for each country to terminate the separation when the party concerned in the marriage is dead, the two parties become reconciled with each other or they get divorced. Then the article introduces historical change and development of the separation system. In old Rome, only the actual separation for some time would be taken as a legal reason to invalidate the marriage. As a legal system, separation was established as the legal form by monastery law in European Christian church of Middle Age, which is remedying step of divorce forbidding. Modern separation system has developed into an advanced system to protect marital relationship, rights of man and wife and the interests of the third person. As a supplemental measure of divorce system, it is playing an important social adjustment role. The marriage law in our country only makes some stipulations on actual separation, which has not become a real separation system.Part-II. Judicial practice of modern separation system. This section focuses on the introduction of concrete stipulations in France, Germany, Britain, America, and Hong Kong, Marco and Taiwan concerning separation system, compares reasons, procedures, legal consequence and termination of separation in different countries and regions to provide some reference for the construction of separation system in our country. Different countries in the two legal systems have great difference on the stipulations of separation system. In France, separation and divorce have parallel functions for the selection of the party concerned. But requests on separation could be only executed through lawsuit and announced by the court. The results of separation could be available to the agreement. The civil code in Germany takes separation for some time as a condition of divorce, while the form could be agreement separation or the one by judgment. There are specified stipulations on the cost of living after separation, distribution of daily using articles, usage of houses and rights of taking care of children. Britain is one of the countries available for judicious precedent law. The stipulations on separation system are more of the examples of judges besides articles in the law. In the law of Britain, separation and divorce exist in parallel. Two forms as agreement separation and judicial separation could be adopted and corresponding procedure principles have been established. Agreement separation has important legal meaning in the divorce system of America. It is one of the main evidence in the lawsuit of divorce to prove that the marriage could not be maintained. In America, almost all the states will admit the effects of separation agreement. In Hong Kong and Marco, the separation system has been influenced by Britain and Portugal, therefore, stipulations concerning separation system are more or less the same with the above two kinds of legal systems.Part-III. Necessity and feasibility to establish separation system in our country. Since the reform and open in our country, the economy has been developing rapidly. Therefore, people's way of thinking has changed deeply. In the field of marriage living, the status is a little complicated with divorce being common, actual separation exists in large amount with stipulations lagged behind comparatively. Therefore, establishing separation system adapting to our condition is necessary. Separation system is good to avoid family violence and protect personal rights of women, it is also good to prevent hasty divorce, guarantee successful trial of divorce case, give consideration to the benefits of man and wife and their children, and protect benefits of the third person. Establishing separation our country also has realistic base, philosophical base, theoretical base of science of law and lawful base. Therefore, it is necessary and feasible.Part-IV. Legislation conception to establish separation system in our country. Firstly, from selection of legislation mode point of view, operation of agreement separation and judicial separation in parallel should be adopted and legal status of separation system and divorce operated in parallel should be provided for the selection of the party concerned. Secondly, concerning the basic content of establishing separation in our country, connecting with our condition and drawing lessons from judicial practice in foreign countries, the writer will provide some suggestions in the following. 1, Separation reason should be identified. Based on application of legal reason to divorce stipulated in the marriage law, necessary supplements should be made and contradicting reason of separation should be established to better exert its advantage of going after profits and avoiding harms, guide the lawsuit of separation for the party concerned in marriage and prevent blind lawsuit, misusing rights and inconvenience of evidence taken by the party concerned without stipulating legal reason of separation. 2, Separation time limit and its termination should be identified. The writer thinks that separation for some time should be established with time limit 2 years and termination period more than 6 months. 3, Law results of separation should be identified. Concerning the relationships between the man and wife, the writer suggests remove the cohabitation obligation but they should have the obligation of keeping constancy and remove daily life deputy rights between them with publication but they should have the obligation of rescuing without fault. For the property relationship during the separation, prior agreement between them will be adopted without removing their common property relationship. Their relationship with children after separation is available to the stipulations on divorce. 4, Termination issues after separation should be identified, including reconciliation, one party concerned is dead, expiration of separation time limit, divorce and cohabitation all the time.
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