Divorce Moral Damage Compensation System

The system of compensation for damage in divorce is a new remedy for divorce that established by the current revised Marriage Law in China. Divorce because of the domestic violence, bigamy, cohabitate outside marriage, maltreat and abandon family members will lead to economy and spirit damage to the aggrieved party. In fact, the physical and mental injuries of the aggrieved party exceed the property loss that can be accounted. So, the meaning of the system of compensation for damage in divorce to the aggrieved party is to get mental compensation, therewith in fine condition both physically and mentally, and beginning a new life. The papers focus on the compensation for mental damage in divorce, after introduce the meaning, function, character, the basic of the system and the course of history of the system of compensation for damage in divorce, I discuss the basic of the right of claim. There are two opinions in academic circles: first, marriage is contract, the claim of compensation for mental damage in divorce is an action of assumpsit's; second, because of marrying, the couple have consortium, the wrongful act on one spouse that violates consortium is tort liability, so the aggrieved party can claim the compensation for mental damage in divorce. I think that the compensation for mental damage is in order to protect personal rights, as a right of status, consortium should be protected by the law. Defining the consortium, the system of compensation for damage in divorce could be integrity in theory. The meaning of the theory of "marriage is a contract" is that propagandas the idea of equality between the sexes and free choice of partner. Marital relationship has been quit of patriarchy and male supremacist thinking. But the nature of marriage is complicated, it contain lots of ethical concept, moral thoughts and national characteristics. It is inaccurate to generalize the nature of marriage only with agreement. After analysis and affirm the meaning of the theory of "marriage is a contract", on the basic of consortium theory, I made points that except that domestic violence hurt the body and health of spouse, composing offenses against the person, the behavior of bigamy, cohabitate outside marriage, maltreat and abandon family members aggress the consortium of spouse, which content the claim of retain chastity and the claim of cohabitation. Further, I expanded the constituting elements of compensation for damage in divorce and analysis the article 46 of Marriage Law. The last part of the papers concludes with recommendation for improvement to the system. There are still legal gaps in the system of compensation for damage in divorce. I appeal that Marriage Law establish the consortium, put forward the suggestion about compensator, act of compensation and responsibility of compensation, expecting to provide suggestions for reference the construction of the system of compensation for damage in divorce.