On The System Of Spousal Maintenance

Nowadays, divorce has been widely accepted and people can divorce accordingto their will in most countries. As a result, it is an important issue to balance betweenthe freedom to divorce and protecting the lawful rights and interests of the vulnerableparty in the advancement of the divorce laws. Among the foreign divorce laws, notonly in civil law countries or the common law countries, most countries, such asGerman, France, America and Australia, underline the provision of the divorcemaintenance system. Meanwhile, the divorce laws in China also underline the divorcefinancial assistance system similar to the spousal maintenance system. And thedivorce financial assistance system consists a complete system of divorce system withthe damage compensation system and the economic remedy system; and it plays anirreplaceable role in the protection of the weak party by providing legal protection tothem because the social security system is not perfect in China nowadays.Compared to the spousal maintenance system abroad, the divorce financialassistance system in China is not perfect yet and is barely carried out in the judicialpractice. Consequently, we can’t support the weak party after divorce and cannotfulfill the mission of the divorce financial assistance. This paper advice to learn fromthe laws abroad, and gradually replace the divorce financial assistance system by thespousal maintenance system and put forward suggestions to perfect it as well.This paper contains four parts, about35thousand words.Part Ⅰ introduction of the spousal maintenance system. In this part, theappellation, the meaning and its characters of the spousal maintenance system will bediscussed in depth, including the marital obligation extension, the rehabilitationmeasures, moral responsibilities in social terms, and the theory of survival rightguarantee. Meanwhile, the function of this system (Its main functions include reliefafter a divorce the weak party, ensuring the divorce freedom, fairness and justice.) andthe necessity of its foundation will also be covered.Part Ⅱ investigation and evaluation of the legislation based on the theory of thespousal maintenance system. In this part, the author will introduce the spousalmaintenance system in German, France, Australia and America and focus on theprinciples of maintenance, the conditions needed for requesting maintenance, theprescription of the amount of the maintenance and the payment method and its changeor termination, and the divorce maintenance agreement. This paper aims to providesuggestions to the perfection of divorce maintenance system from the principle ofdivorce maintenance system, request condition of divorce maintenance system,maintenance to determine the amount of the divorce, divorce maintenance payment,change, termination and divorce agreement of maintenance support of divorce basedon the investigation and evaluation of the related legislation abroad.Part Ⅲ investigation to the judicial practice of the divorce maintenance systemin our country. This part covers a survey about a random sampling of the divorcecases(from2010to2012) of a Grass-root People’s Court of Chongqing City andanalyzes the problems and deficiencies such as divorce economic help system is less, recipients range is small, hard to get the court support, low amount of money to help,and the causes resulting these problems existing in the maintenance system and itsjudicial practice.Part Ⅳ analysis on the deficiencies of the maintenance system in our countryand corresponding suggestions for perfection. This part gives a further analysis on thedeficiencies of the maintenance system based on Part Three the deficiencies mainlyinclude: applicable condition is too harsh, divorce maintenance amount payment, thepayment is not specific, or lack of divorce maintenance change, termination rules,regulations on divorce maintenance agreement on the lack of state intervention,performance of the lack of the safeguard measures of divorce maintenance system, etc,and put forward corresponding suggestions for its perfection. For example, lessenapplied conditions and properly extend the coverage of the maintenance; specify thereference factors of maintenance; specify payment methods and underline detailedregulation on its change, termination and payment order; strengthen the stateintervention to the maintenance agreement; perfect the security measures in thepractice of the maintenance.