A Study On The Legal System Of Divorce Relief In China

Divorce relief system is a special relief system to protect the legitimate rights and interests of the disadvantaged party after divorce.In China's current marriage law,the divorce relief system is relatively complete.Specifically,it includes "divorce compensation" stipulated in Article 40 of the Marriage Law,"appropriate assistance" stipulated in Article 42 and "compensation for damages" stipulated in Article 46.The above three parts not only make universal values such as freedom and equality of personality,social fairness and justice deeply popular,but also provide a strong institutional guarantee for the protection of the legitimate rights and interests of the disadvantaged party after divorce.However,from the theoretical research and practical application of the divorce relief system,it is undeniable that since the amendment of the Marriage Law in the 1980 s,the dispute on the divorce relief system has never stopped.Apart from the disputes over its specific content,in theoretical research,the legal concept of the divorce relief system is not clearly defined,and the dispute over the existence or abolition of various specific systems in the divorce relief system has always existed.In practice,the system of divorce relief has a serious phenomenon of system falsification.The main reason is that the legislative provisions of the three specific relief systems in our divorce relief system are relatively principled and lack of operability.Among them,in the process of applying the divorce economic compensation system,the subjects who can exercise this right are limited to spouses who agree to separate property system in written form.This kind of regulation is not compatible with the application of the common property system of husband and wife in the field of marriage and family in our country.The application practice of the economic assistance system,because the criteria for judging "living difficulties" still remain in the 1980 s,is not compatible with the level of social and economic development,which makes the application of this provision in judicial practice continue to be rigid.For the application of the divorce damage compensation system,only four statutory applicable situations are stipulated,which are difficult to meet the diverse needs of social life,resulting in the loss of effective relief for the divorced party.Based on the analysis of the theory and practice of divorce relief system in China,this paper studies the useful divorce relief models at home and abroad,and explores a way of divorce relief system with Chinese characteristics.Unify the legal concept of "divorce economic assistance",use "divorce maintenance system" instead of "divorce economic assistance system",and ultimately achieve the goal of maintaining unity with the legal concept of the international community;complete the mission of economic compensation by the marital property system,thereby abolishing the legislative provisions of the marriage law and related judicial interpretations on compensation system;and gradually improve China's divorce system.The legislative provisions of relief should refine the judicial application standards of the system in practice,strengthen the relief efforts for divorce compensation,respond to the call of realistic needs,avoid exhaustive listing of the statutory circumstances applicable to the system,and should comply with the inherent attributes of the law,and add baseline clauses,etc.