Conditions For The Application Of The Rules On Financial Compensation For Divorce In The Civil Code

The value objective of the divorce financial compensation rule is to compensate the loss of the spouse who bears more family obligations during the marriage,balance the legitimate interests of both parties upon the dissolution of the marriage,and thus achieve substantive equality between men and women in marriage and family relations.Compared with Article 40 of the Marriage Law,Article 108 of the Civil Code unshackles the application of the rules on financial compensation for divorce and gives priority to the autonomy of the spouses in terms of compensation,breaking the bottleneck of the application of the divorce financial compensation system in the past and further guaranteeing the substantive equality in the evaluation of the contributions of both spouses.However,both the number of cases of divorce financial compensation system and the support rate of court decisions reflect that there are still obstacles to the application of divorce financial compensation rules in the era of the Civil Code,and the main reason for the difficulties in applying divorce financial compensation rules is that the understanding of the applicable conditions is still controversial,which leads to the conservative attitude of courts in exercising their discretion.The main reason for the difficulty in applying the rules on financial compensation for divorce is that the conditions of application are still controversial and lead to a conservative attitude of the courts in exercising discretion.By analyzing the legal provisions themselves,their legislative interpretations and the argumentation of relevant judicial decisions,the conditions of application of the rules on financial compensation for divorce stipulated in Article 108 of the Civil Code are accurately explained: First,the time condition of financial compensation for divorce: "at the time of divorce".During the marriage,the spouses act as a community of interests,and the losses suffered by one party as a result of assuming more family obligations can be balanced by the benefits obtained by the other party.The objective need for financial compensation arises only when the relationship between the spouses as a group is dissolved and the balance of their interests is broken,and the losses of the obligated party cannot continue to be compensated from the community of spouses.Secondly,the conditions of "payment" and "loss" in the application of divorce financial compensation rules.In addition to the "payment" that exceeds the legal obligations,the more important content of divorce financial compensation is the abstract human capital and opportunity benefits hidden under the figurative family obligations.The party with more obligations is bound to spend extra energy and time for the "payment" that exceeds the legal obligations,resulting in the loss of social status,interpersonal contacts,skills and other personal proprietary interests,which are almost irrecoverable after the dissolution of the marriage.Finally,the condition of "more obligations" in the application of the rules on financial compensation for divorce.The three obligations explicitly listed in the law should only be part of the sources of the divorce financial compensation rules,but the majority of courts in judicial practice have limited the application of this rule to the more individual childrearing obligations undertaken by one of the spouses during the marriage.Under the existing legal framework,"family obligations" including domestic work can be considered as a source of financial compensation for divorce.The determination of the "greater extent" requires a distinction between the living conditions of the community of spouses.If the spouses have lived apart for a long time,the court can directly determine the extent of the obligations undertaken by both spouses by comparing the content of the obligations.If the spouses live together,it is necessary to determine the intensity and duration of their family obligations or whether the family obligations result in a loss of human capital and opportunity benefits.