On Divorce Damages System

Marriage is personal and property relationship of rights and obligations formed between a man and a woman who aim at permanent bed and board. A married couple shall perform obligations such as mutual loyalty and mutual support. According to equitable principles, when one party fails to perform obligations, for example, the husband or wife commits bigamy, mistreatment or desertion, which causes property and moral damage to the opposite party, the latter enjoys the right to gain moral consolation and property compensation in order to realize legal equity and justice.Under the present system of non-fault divorce, the system of compensation for damage caused by divorce is a system of remedy of rights established in order to guarantee the legal rights of the non-fault divorcee. By means of remedying the rights of the non-fault divorcee, it compensates the victim's property loss and moral damage. Its main function is to fill damage, console the victim and punish the fault-maker.Compensation for damage caused by divorce is a special compensation for tortuous damage, therefore, besides general constitutive elements of compensation for damage, i.e. act of tort, fault, causal relationship and fact of damage, the liability of compensation for damage caused by divorce shall have a special constitutive element, divorce.It is a breakthrough in China's marriage-law-making that the new Marriage Law adds the system of compensation for damage caused by divorce. However, because of the complicacy of the issue of marriage and family, the new Marriage Law only provides general and inattentive principles on compensation for damage caused by divorce instead of giving clear explanation on many specific issues, resulting in heated arguments on the system. In order to solve the problem, in the process of making the Civil Code, China's Marriage and Family Law should be further perfected.