The Separation System

Separation is used by some modern nations or districts as an important component oftheir national Divorce System, it means that the couple who has conflicts with each other canmove out their duty of cohabitation and change their relationship of rights and obligationsbetween husband and wife, but it does not lead to the dissolution of marriage. After a periodof separation time, if the couple is back to good, the separation do its function, if they’re not,the separation can set explicitly their personal and property relationship.The family is the cell of society and the marriage is the foundation of a family, thestability of social order is based on the harmony of the marriage and family. Since the reformand opening-up, the improvement of Chinese people’s knowledge level and the freedom ofthe thought, China has appear some phenomenon that reflect the more and more Chinesepeople are a kind of reckless with the marriage, such as divorce tide and the rising rate ofrestores a marriage. The separation ensures the freedom of marriage, is against the attitude ofhasty with divorce. Chinese legal system is only regard separation as a fact, not a regime oflaw. Separation is a ubiquity problem in China, there is no a special legal system to regularizethese separated couple’s behaviors, so when Court hear the case for separation of husband andwife, there has no law to fallow. The function and the value of separation can not embodyfully in China.This article takes the separation as research object to give some valuable suggestionsabout setting separation in China. This article has four parts:The first part, a true case draws forth the research object-separation. In that case, acouple has conflict on the value-added part of the housing during the separation, and has someissues with other property. The Court adjudicates the case with Chinese law without the legalsystem of separation after hearing both statements. I don’t think it’s right and fair. Because Ithink the relationship between husband and wife in separation is not the normal couplerelationship, the current Chinese law should be used to judge the normal couple’s personaland property relationship. So I think China ought to set a special legal system to judge thekind of case.The second part, according to the current Chinese law has no separation. The blank inlegislation can not meet the practical demand; I think China has the necessity to set separation.Compared to the legislation, in the field of marriage theory, even though there has debate about separation, most of jurists strongly agree separation setting. They do a lot of research intheory about separation, and they give some valuable suggestions, so I think China has theprobability to set separation.The third part, separation originated in Europe, China has no tradition to set separation,so China wants to set a perfect separation, it must absorb the essence of other nations’ anddistricts’ separation. I select some representative nations and districts to comment briefly theirseparation and to summarize some meaningful thought and rules, like Britain、France、Germany、Hong Kong、Marco and so on.The forth part, I base on the research in that three parts and combine with the actualsituation in China, I give some my own idea about the legislation style、the type、legalaffection of separation, I hope these shallow opinions could be useful.