Theory Of Establishment The Separation System In China

The separation system originated in the ancient Rome.Played a positiverole as the substitute of the doctrine that don’t cancel marriage.Had prevailed inmedieval European.It is a system that the marriage parties because of the courtdecision or the consensus that do not live together, do not need to carry out theobligations between husband and wife, while marriage is still existing. Thissystem is a relieve system, the separation procedure, intend to provide a coolbuffer period for the marriage parties who want to divorce,let them thinkcarefully about their marriage and reflect on their own,thereby to avoid hastydivorce, this system played an important role in resolving the contradictionbetween husband and wife.The separation system is mainly divided into three kinds in the world, judicialseparation, real separation, the separation of parties with consensus. In foreigncountries, the Anglo American law system countries in view of the judge made lawand customary law background as the main legal form, the separation system do notrecord in code of written law,more dispersed in some provisions of the law or caselaw, while in civil law countries, this system record in a single chapter or record inmarriage law chapter, provide a basis for the judicial practice. Provisions in China’sHongkong,and Macao area’s legislation also has the separation system.The separation system provides a strong basis for mitigating the contradictionbetween husband and wife,control the increasing divorce rate,prevent the familyviolence, solve the fuzzy relation about property and personal relations in the realseparation. At present, in our country, the divorce rate is high and on the rise, maritaltort happens sometimes,and the real separation has caused a number of adverseissue,these have produced a lot of effects.At present, our country has the real needand the legislative environment of constructing the separation system.Through literature method,survey study method,to conclude and analyse, throughthe horizontal and vertical comparison, let the theoretical study and practicalinvestigation uniform, research this system scientifically and systemlly, give fullattention to the accurately grasp the original materials, avoid one sidedness,throughin-depth comparison and research,reference foreign and China Hongkong, Macao area outstanding legislation basis, put forward the proposal of coustructing ourcountry’s separation system. First of all,advice in the construction of the separationsystem of our country should locate the separation as the prepositive procedure,letthe separation as the main basis of the divorce,let the separation system exist inmarriage law; secondly, in terms of the type, may establish the judicial separationand consensus separation, regulate the legal deadlines for the separation as theprinciple provisions, the parties consensual self-determination as auxiliary; again, inthe separation of form, let the different room separation as principle, under specialcircumstances, may apply the same room separation; finally, in the aspect of theseparation effect, regulate to deal with relations changement of husband and wifepersonal relationships, parent-child relationship, property relationship.Design the endcause and the suspend of separation, and suggeste the try of separation in somearea’s practice.