The Study Of The China Institution Of Economic Assistance After Divorce

Economic assistance system for divorce refers to a legal system that after divorce, if one party has difficulty living, the other party shall provide proper helps in housing and financial. The specific solution of help depends on mutual agreement of both parties. When the agreement between the two parties fails, People’s court will make judgment of the solution. From the first similar system appeared in the30s of the last century,<the Chinese Soviet Republic Marriage Ordinance>, until2001<Marriage>(amendment), the economic assistance system for divorce undergoes significant changes in its main part, content, time point, the legislative protection of men and women, etc. That vividly presents manifestation of the humanitarian spirit of the system, and is established in the level of economic development in China at that time, focusing on the features of protection of women’s rights.As one of the earliest assistance system for divorce in China, economic assistance system for divorce played a part in protecting the interests of the weak, and the freedom of divorce, and promoting legal equity. However, in recent years, economic assistance system for divorce has encountered some problems in the judicial practice such as narrow application of the economic assistance system, limited amount of help, unsolved housing problem, inadequate execution. The main reason is including the untruthfulness of both parties agreement, inadequate consideration of the court, difficulty to define "hardship" in live, and the impact of the faulty thought of the party to divorce, but the divorce legislation treats the property of moral obligation as the main reason for the impact of the application of the economic assistance system for divorce.Regarding the properties of the economic assistance system for divorce, scholars have the different sayings of guarantee of the right to existence, moral obligation, extension of the maintenance obligation. In foreign countries, the assistance for divorce which is similar to the economic assistance system for divorce is the Maintenance System after divorce.We believe that the economic assistance system for divorce is characterized as a continuity of the maintenance obligation for couple. This thought has its legal basis. The maintenance obligation is a statutory obligation, and it has the force of law. Based on this, it is reasonable to say that financial assistance after divorce has also been characterized as a legal obligation, and economic assistance system for divorce has become a legal obligation with the force of law. The divorce parties have the right to claim for maintenance, which better protect the legitimate interests of weaker party than the economic assistance system in mortal obligation.In order to make economic assistance system for divorce has better maneuverability, greater force, and better role playing in divorce financial assistance system, our country has decided to stipulate the system as the extension of maintenance obligation of couple, and legislated the economic assistance requestor should be the non-fault party, with additional reference factors of the financial assistance amount, changes and termination clauses of the economic assistance, enrichment of the economic assistance payments form, improvement of the fulfill measures of the economic assistance payment obligation and so on.