Alimony. Common Law On The Theoretical Research

Nowadays, divorce has already become easy because of common understanding of "divorce freedom". So, divorce law should focus on how to regularize the consequence of divorce. After all, marriage is not the pure private affairs. It is a kind of institutional arrangement to human ethics in the social reality that the productivity level is still undeveloped. Though, marriage can be relatively unchained freely, but it does not mean that the party should not pay any cost for divorce. Since divorce make one party of marriage suffer economical heavy losses, and become the burden of society, the legislation shouldn't ignore this inequality. Instead, it must design relevant relief mechanisms in order to offer appropriate protection to the weak. Under the current legal frame of our country, there are three divorce-related financial allocations, including the liquidation system of couple's common property, the system of compensation for divorce damages, and the clause of financial help. But these allocations are not enough to offer the rational, proper guarantee for the weak.With understanding the legislation of Britain and America, we find that the system of maintenance in Britain and America (common law) reflect the same spirit of equality as the clause of financial help in China Furthermore, there are sounder concrete operational rules in the system of maintenance, which may safeguard the justice in family law more effectively. Thus, the paper expects to supply some suggestions to improve the clause of finance help, through researching the theory and practice of maintenance in common law.Besides the foreword and conclusion, the paper divides into three parts, about 3,7000 words altogether.The part of the foreword will introduce the definition of maintenance firstly, and uncover three major defects of our country's financial help clause on this basis.First part (The general picture of maintenance) of the paper will briefly sketch the origin and type of maintenance in common law. It will compare maintenance with partition of couple's common property, social security system and the principle of divorce freedom respectively, and argue that maintenance can bestipulated together with partition of couple's common property in family law, that maintenance is a kind of relief mechanism which is similar to but should be prior to the social security system in ranking, that maintenance will effectively safeguard the principle of divorce freedom.Second part (The justification of maintenance) will describe the transmutation of maintenance's justification from the traditional theories (such as the continuity of support obligation, the punishment to the husband with fault, the compensation to wife's damage) to the modem economic analysis (such as marital specialization, human capital investments). It will outline the economic efficiency argument in support of maintenance, and conclude that the justification of maintenance is just the spirit of equality.Third part (The construction of maintenance system) will analyze the details of maintenance system, consulting the legislation of Britain and America, and form a ideal framework of maintenance system which includes five sections: the claim of maintenance, the way to pay and the amount of maintenance, the performance assurance of maintenance, the limitations and end of maintenance obligation, and the maintenance agreementConclusion will suggest some directions for gradually improving the clause of financial help in China...