On The System Of Paying For The Cost Of Upbringing After The Divorce Of A Couple

The system of paying for the cost of upbringing after the divorce of a couple almost exists all over the countries in the universe; thought it is different in names, there are many similarities in content. In our country, there still has regulated the system of economy help for divorce similar to this. This system has active meanings for protecting the profit of the weak party in economy when divorce, and guaranteeing the freedom of divorce, etc. However, in the system of economy help for divorce, there exists the many issues, such as harsh designing conditions, not enough protection and so on; the system has not given a full and deserved play in real life. In this thesis, it is advocated that it should learn from the ways practiced in foreign countries as the aspects of system, establish a system of paying for the cost of upbringing after the divorce of a couple, to replace the system of economy help for divorce, maintain the fair on the legitimate rights and interests of the litigants in both parties while divorce, and embody the justice of law and jurisdiction.This thesis can be divided into three parts.Firstly, there comes to an introduction in the thesis. It is pointed out that terminating the inharmony and the marriage without love by divorce, and providing the opportunity to marry again and establish a happy family. However, when a divorce terminates the relations of man and wife, it also determines the obligation of upbringing between man and wife, the upbringing by a single party after divorce, has a great possible falling into a difficult position. If it can not eliminate the worry of maintaining living after divorce by the litigant of one party in the marriage, more ensure the survival, it will make the litigant dare not to raise divorce, compromise to continue the marriage. The system of economy help for divorce established by the current performing Marriage Law, for the living difficulty of one party when get divorce, it should be given help economically by the other party, this has guaranteed the weak in economy in the divorced litigants, embodied the new relations between people of loving and helping each other, and make an active meaning to eliminate the weak in economy (mainly refers to the women) in the issue of divorce. It can be said that the system of economy help for divorce places the fine hope and expectation of lawmaker. But, among the regulations and methods of work in the current performing system of economy help for divorce, there exists the many issues, such as harsh designing conditions, not enough protection and so on. In this thesis, it is advocated that it should learn from the ways practiced in foreign countries as the aspects of system, and think on establishing a system of paying for the cost of upbringing after the divorce of a couple.The first part of the thesis is about the meaning, quality and functions to the system of paying for the cost of upbringing after the divorce of a couple. The system of paying for the cost of upbringing after the divorce of a couple in this thesis refers to the system that in a period during or after the divorce, on side of consort requests the other to pay some cost because living difficulties or living demands. Here the cost of upbringing includes paying the expenses (cost of living or cost of upbringing), providing the houses, domestic articles for daily use and so on. About characters of the system of paying for the cost of upbringing after the divorce of a couple, they are different in different times or under different legal systems. Under the traditional principle of fault divorce, the court judges that the fault side pays for the cost of upbringing as an economical punishment to the fault side. This kind of payment of the cost of upbringing is considered as one of the legal consequences of divorce. Under the principle of without fault divorce, the payment of the cost of upbringing after divorce is aims at helping the litigant which has the economical needs to go through the economical difficulties, which is for reflecting social fairness. This kind of cost of upbringing or not has no relationship with the whether the litigant has faults or not. Therefore, this kind of payment of cost of upbringing is an extension on upbringing obligation during the continuation period of marriage relation, which belongs to accessory items of divorce, but not the legal consequences of divorce. For this question, the domestic scholars have different points of view. This thesis deems that the payment of cost of upbringing after divorce is the aids that given to the side which are in the weak point in economy, to accept upbringing is the right of the being upbringing and the payment of cost of upbringing is the legal obligation that the payers should undertake. The current performing domestic principle of divorce is the without fault doctrine, the payment of cost of upbringing after divorce should not be established as the punishment measure to the fault side. Whether the litigant can be given cost of upbringing has no relation with the reasons of divorce. The payment of cost of upbringing is based on the economic conditions of litigant and the contribution who gives to the marital family, which helps the litigant solve practical living difficulties or satisfy proper needs of litigant and maintenance fairness but not basing on the marital relations to relief the derivative social morality and justice, is a kind of countermeasures coped with divorce, etc.The main functions in the system of paying for the cost of upbringing after the divorce of a couple includes: 1. Guarantee the freedom of divorce and emphasis on protecting profit of the weak in a marriage. 2. Objectively evaluate on the contributions to the family between the litigants. 3. Enhance the sense of responsibility of marriage and family among the people. 4. Properly define legal responsibility of the litigants in a marriage. The second part of the thesis is about legislation, evaluation and analysis on the system of paying for the cost of upbringing after the divorce of a couple in the universe. In this part, it has introduced to the relevant regulations in laws on subject in the right of applying upbringing cost after the divorce between man and wife, and the conditions of the obligation party on paying the cost of upbringing, in Germany and Russia which belong to the mainland family of laws, and in UK which belong to the Anglo-American family of laws. Upon evaluated and analyzed on the legislation on the system of paying for the cost of upbringing after the divorce of a couple in the universe. It is pointed out that whether accepting the compensative upbringing, it should adopt a positive attitude to a two-element doctrine is more advanced than a single-element doctrine. On the amount of paying important document for the cost of upbringing after divorced, a two-important-document doctrine is much more advanced than a one-important-document doctrine and multi-important-document doctrine. On the paying time-limit of the cost of upbringing after divorced, it is better to define a certain period to the cost of upbringing. On the paying amount of the cost of upbringing after divorced, it is better to consider by the judge. While on the way of paying the cost of upbringing after divorced, it is better to pay the capital namely paying once.The third part of the thesis is about constructing the system of paying for the cost of upbringing after the divorce of a couple domestically. Primarily, it is raised that there are lots of shortcomings in the system of economy help for divorce domestically: 1. The suitable condition is harsh and easy to make different understanding. 2. Being lack of measures for guarantee. 3. Being lack of terminative regulations. 4. The inaccurate qualities and hard to apply. 5. There are no clear regulations on the way of payment and amount. 6. Being lack of legal changing condition. Therefore, in this thesis, it is considered that it is necessary to re-design the issues on upbringing between the original consort after divorce, learn from the general rules of legislation in all the countries, and establish a system of paying for the cost of upbringing after the divorce of a couple with conditions. Secondly, it should be defined that the system of paying for the cost of upbringing after the divorce of a couple should be equal and fair between male and female. Finally, there has a detailed presumption to establish the system of paying for the cost of upbringing after the divorce of a couple. 1. It should accept a compensative upbringing. 2. It should adopt the two-important-document doctrine in the important document on the cost of upbringing after the divorce of a couple. 3. It should exercise the right of application to paying the cost of upbringing when get divorced. 4. It should define the ways and methods for paying the cost of upbringing after divorced. 5. It should define paying time-limit for the cost of upbringing after divorced. 6. It should strengthen the guarantee on performing the cost of upbringing after divorced. 7. It should give a limitation to the right of application to the cost of upbringing after divorced.