Maintenance System Divorce Comparative Study

Financial assistance on divorce is one of the important contents of Chinese maniage law, practice proved that this system plays an important role in protecting the disadvantaged and that it can not be substituted by other systems when the security system is not so advanced. The improvement of this system is beneficial to the interests of the disadvantaged. Meanwhile, as a part of the civil law, the improvement of marriage law is significant to the enactment of the civil law. While the Civil Law of China is being drafted, and the volume of marriage law will be compiled into the Civil Law, this article is trying to make a comparative study on the theories of spousal maintenance in foreign countries and the financial assistance of China, in the hope that it can offer some reference for the improvement of this system.Marriage Law 1980 provided the system of financial assistance, and "The other party shall render appropriate assistance with his or her own property such as his or her residential house" was inserted into the amended Marriage Law of 2001, which complies with the traditional styles of marriage and habitation in China and is significant to solve the realistic problem that most divorced women have no residential houses to live in. However, there are still some defects on this system: Firstly, the provisions on the financial assistance is too summarized without maneuverability, so that there are no criteria when deciding the financial assistance; secondly, the conditions under which the financial assistance is granted are too restrictive, only the party who is in divorce can seek financial assistance, but the one has difficulty in self-support because of looking after the common minors or disabled children, the old-aged or those in marriages of long duration can't get financial assistance from the other one in certain periods after divorce. On the other hand, the basic maintenance level is used to judge whether one party needs financial assistance or not, this criterion is too low; thirdly, absolute freedom in maintenance agreement can't protect the interests of the disadvantaged well; fourthly, the provisions on the amounts, duration and modes are not explicit; fifthly, the specified measures to ensure the enforcement of this system are not enough so that it is hard to enforce some of the payments; sixthly, there are no legalcircumstances under which the payments can be modified, terminated, reduced or exempted so that the maintenance is usually paid in the form of lump sums. Hence, it is necessary to improve the system indeedAccording to the statistics, the parties seeking financial assistance are almost women, because of the defects of the current system, it can't protect the disadvantaged, resulting in feminization of poverty. There are self-contained systems of spousal maintenance in foreign countries, whose provisions are reference to the financial assistance of China undoubtedly. Therefore, this paper is trying to make a study on the theories of the spousal maintenance through comparison and gender analysis, in the hope that it can be a perfect relief measure to alleviate the disadvantaged in divorce., This paper contains five parts, about 52 thousand words.Part I makes a study on the basic theories of spousal maintenance. The discussion will focus mainly on the basis on which this system exists and its legislative purpose, including the theory of spousal maintenance as punishment, the compensational spousal maintenance, the transitional spousal maintenance and the basic social obligation maintenance. At the same time, this chapter discusses the relationships between relative systems.Part II introduces the systems of spousal maintenance on divorce in some countries. The provisions in these countries provide the conditions under which spousal maintenance is claimed for, the factors that courts must consider in deciding spousal maintenance payments, the agreement on spousal maintenance, the amounts and modes of maintenance, its enforcement, adjustment and the termination of spousal maintenance.Part HI makes some comments on these provisions, in the hope that we can make reference to the foreign experience to improve our financial assistance on divorce.Part IV considers some trends from other countries, which is helpful to make certain the developing direction of this system and provide some reference for its improvement.Part V discusses the system of financial assistance in China. This part introduces the system of financial assistance, analyzes its defects > and makes somesuggestions on the improvement of the financial assistance on divorce: Circumstances under which the financial assistance in divorce is awarded should be broadened properly; factors for a judge to determine the financial assistance in divorce should be added and more attention should be paid to the interests of the minors and women; we should adopt the doctrine of state interference in financial agreement to protect the interests of the disadvantaged; the modes and the periods of the spousal maintenance should be specified so that there are rules to follow when deciding the spousal maintenance payments; we should strengthen some enforceable measures to ensure that the system can be executed properly; we should provide for the circumstances under which the financial assistance in divorce is exempted, limited, modified or terminated to make it more reasonable.