Legislation Of Establishment Of The Separation System In China

Separation system originates from the prevailing law at the temple by the Middle Ages in Europe on the premise of the valid marriage existing, which is a relief measure to dissolute, the failed marriage. It has played a big role in couples reconciling with each other.Separation system is such a legal system which couples can excuse from a duty of cohabitation but their marriage existing by reaching a consensus or a judgment when they can not live together during their marriage existing. Its types mostly include:separation by litigation, separation by agreement and separation by fact.Beyond the seas, separation system is legislated in the Civil Code where it is included by the family part in the civil law countries. In France, separation system is legislated in the code firstly where the judgment of separation can convert to the judgment of divorce if the couples have separated for three years; In Germany, only separation by fact is admitted in which there is a presumption that a couple's marriage has been broken if they have separated for three years, then they can conduct the division of property; In Switzerland, it is the most unique that there are regular and irregular separation system. The separation system is not complete written legislation, but scattered in separate regulations and jurisprudence in common law countries. In UK, there are "without prejudice Order" and "possession laws" in the separation by litigation which are conducive to the prevention of domestic violence and protection of the weak; In USA, the terms of minor children of the separation agreement made by the couples shall be a substantive review by the court and win the approval of the court; Australia set separation system to a pre-program of divorce.At home, there are many problems about marriage such as separation by fact,marital tort,rates of both divorce and remarry significant increasing,trial divorce freeing outside the law, which reflect the social needs of the separation system and can be solve by establishing separation system in the relevant laws. In reference to the relevant legislative practice of foreign countries and Hong Kong,Macao,Taiwan regions of China, this paper put forward some ideas of legislation about the separation system of China. First, we should take parallel system of the separation system and the divorce system in legislative configuration, besides, the separation system in the "Marriage Law" should be a separate section and specifically be provided in the "family relation" chapter; Second, the reasons for separation should be a modest expansion on the basis of grounds for divorce. The property and personal relationship of couples during the separation are different from that during the normal state of marriages like exemptions of cohabitation and family agency, duty of loyalty moderately reducing, the Court's analysis of property under the common property system. There are two specific forms:separation by litigation and separation by agreement. Focusing on protecting the legal rights of the weak of couples and their minor children, the Court has the right to conduct a substantive review on the terms about minor children of separation agreement and the power to issue "an injunction" to protect the victims of domestic violence.