A Study On The System Of Financial Assistant On Divorce

The system of financial assistant on divorce was firstly established in the 1950's with a purpose to protect the disadvantaged party, to safeguard the freedom of divorce and to share the responsibility of remedy of the society by requesting the party capable to provide money, use right or ownership of houses to the party in difficulty after divorce in order to help the latter to recover. Although it is one of the divorce systems in China, the system of financial assistant on divorce has seldom been applied and its due function has not been fully realized since the establishment as a result of the strict applying conditions and the overly-general provisions in laws. Because of the said reason, it is suggested by some scholars that the system of financial assistant on divorce of China shall be abolished and a system referring to the spousal maintenance on divorce of overseas shall be established. The paper makes a thorough comparison and analyse of the financial assistant on divorce and the spousal maintenance on divorce and reaches the following conclusion:The principles of the two systems are identical, that is, to protect the interest of the disadvantaged party and to safeguard the freedom of divorce. It is the differences among the countries conditions that result the different appearances of the said two systems. The system of financial assistant on divorce is an outcome of Chinese history, it meets the ethical values of the people and shall thus be maintained. However, the changing of times requires the original system of financial assistant to keep pace with the time. By making reference to the relevant provisions of the system of spousal maintenance on divorce of overseas, this paper presents an initial thought on the re-construction of the system of financial assistant on divorce of China.This paper can be sorted into the following 4 parts:Chapter One:The concept and the necessity of the system of financial assistant on divorce. This chapter firstly introduces the fundamental principle of the system of financial assistant on divorce and claims that the nature of such a system is a social responsibility rendered to the ex-spouse in order to supplement the shortage of social security. Regarding some scholars'views that the system of financial assistant on divorce shall be abolished and a system of spousal maintenance on divorce shall be established, this chapter argues after making a comparison and analysis that the two systems are not fundamentally different and the system of financial assistant on divorce is more suitable for China's conditions and shall be maintained while certain improvements could be introduced by making reference to the system of spousal maintenance on divorce.Chapter Two:The current situation of the implementation of the system of financial assistant on divorce. This chapter analyses the subjective and objective reasons for the lack of application of the system of financial assistant on divorce of China in practice, identifies that the subjective reason is the poor awareness of laws and the commonly existing mind of "hesitating in lawsuit", the objective reason is the comparatively many deficiencies in the system of financial assistant on divorce of China to which an improvement is expected, and continues with an in-depth of the system deficiencies in applying conditions, contents, amending and terminating conditions and enforcement safeguard.Chapter Three:An introduction of the system of spousal maintenance on divorce of overseas. This chapter analyses mainly the legislations of the system of spousal maintenance on divorce in countries representing the civil law system or the common law system. A classification and introduction is given in the respects of applying conditions, contents, amending and terminating conditions and enforcement safeguard of the system of spousal maintenance on divorce of overseas.Chapter Four:A though on the perfection of the system of financial assistant on divorce of China. On the basis of a comparable study on relevant provisions of the systems of spousal maintenance on divorce of overseas, this chapter expresses the view that although the appearances of various systems are different because of the countries'conditions, the one meeting the specific condition of a country will fit. Therefore, on the basis of the conditions of China, this paper makes perfection suggestions regarding the applying conditions, contents, amending and terminating conditions and enforcement safeguard of the system of financial assistant on divorce.