Equitable Mechanism Of Divorce

The divorce system is an important part of marriage system, and it is also the most controversial and disputable part. With the progress of the divorce legislation principle from limit to freedom, the divorce rate has risen a lot in many countries, which brings a series of negative consequences. We cannot vacillate the principle of free-divorce, but must pay attention to the unbalanced interests which caused by divorce, and we should take measures to minimize the harm of divorce. At present the research on the system of divorce mostly stresses on concrete questions. These researches are very significant to solve the practical problems, but by virtue of lack of the macroscopic field of vision, it is very difficult to grasp the essence of the whole divorce system. Therefore, this thesis attempts to take the non-fault divorce legislation principle as the inspection background, take the balance idea as the clue, thoroughly analyzes the existing divorce legislation and the judicial flaw in our country, argue vigorously the macroscopic divorce system in order to establish and perfect scientific reasonable balance mechanism of divorce.Besides the introduction and the concluding remark, this thesis can be divided into four parts, including about 38,000 characters.First part: general remarks on the balance mechanism of divorce. This part firstly inquires the historical progress of divorce freedom, by relating the vicissitude of divorce legislation principle. Subsequently it analyses the negative consequence, which brings from the divorce, and then promulgates the realistic necessity of the establishment of divorce balance mechanism, finally to the connotation of divorce balance mechanism to carry on the analysis again, and further discusses its theory basis. The thesis believes that the principle of the freedom divorces respects the wishes of litigant parties of divorce, conforms to the marital essence, and is the development tendency of modern divorce legislation. However, as the law restrictions to divorce becomes weak , some serious consequence, which is not be expected, appears one after another : The divorce rate suddenly climbing, divorced woman living poorly and only-parent child living condition bad ,crime rate higher ,and so on. Under this background, it needs to introduce the balance idea, establishes the scientific reasonable divorce balance mechanism. The divorce balance mechanism, mainly refers to the benefit balance of divorces freedom, that is to say, under the acknowledgement of divorce freedom principle, the fair, justice, relief, the benefit balance thought should be the introduced to the divorce law system, to limit divorce on the suitable scope, to provide relief for the negative consequence , to protect the disadvantaged status of the party and underage children , thus to realize all quarters benefit balance, between the harm and the relief balance, finally realize balance between the divorce freedom and the social justice. It both manifests the law enforcement of the balance idea through the divorce legislation and judicature, and manifests the concrete divorce law system which constructs under the balance idea. The divorce balance mechanism is the ethics inevitably request in fact.Second part: the balance of divorce condition and procedure. This part firstly evaluates the condition and procedure of the present registration divorce and the lawsuit divorce in our country, next carries on the corresponding inspection to the overseas legal regulation, and finally puts forward some concrete proposals. The thesis points out that, the divorce must conforms to the legal condition, follows the legal procedure. Our system design of register divorce strengthens the divorce freedom excessively, but actually attenuates the state intervention function, so it is extremely easy to create a hasty divorce. The lawsuit divorce manifests the country to the marital question intervention, balancing all quarters benefit well, but in some details, it still has to consummate. Only through the suitable limit of the divorce condition and the procedure, we can prevent abusing the divorce freedom right, safeguard divorce in anticipation and smooth revolution of the prevention mechanism, concrete suggestion as follows: fixed number of years of marriage should be the divorce condition, the consideration time in the registration divorce procedure should be established, the verification deadline of the marriage registration regulatory body should be lengthened, the harsh provision in the divorce condition should be attached. In addition, we must further display the divorce mediation the positive role.Third part: the balance of divorce bilateral property benefits. This part mainly discusses the division of property and divorce relief. The thesis stresses that the fair principle should be proved in the divorce property division, namely joint property of the husband and wife can be equally divided, or be divided according to litigant's special details, in order to protect the disadvantaged status of the party. We must fully appraise the influence of the housework to the husbands and wives respective human capital and it's the anticipated benefit. And on this foundation, whose human capital decreases will get more money. The divorce relief system which devotes the balance between the harm and the relief, is the last barrier to the protect property right of husbands and wives. The divorce relief system should be strengthened to ensure equity. The housework compensates system in our country should be expand to the joint property system. The divorce economy help system must be took relative difficultly as a standard, and the economical difficulty should not be restricted in the time of divorce, but also should include divorce the section of times which can be foresee. The divorce damage compensate should be suitably expanded in the mistake scope. The divorce damage compensation request right also can be suitable to the registration divorce.Fourth part: the balance of underage children' interests. This part tries to solve the underage children's guardianship. The thesis points out that, in the divorce, it is the underage child in fact who is affected in a big way. They only can helplessly accept their parents' choice. Therefore, how to protect the underage children's benefit after the divorce becomes most important. Our marriage law should introduce "the best interests of the child" as the highest guiding principle when dealing with the children guardianship issue. The full amount of children support payments should be safeguarded firstly. Currently, we can consider reserving the children support payments before dividing joint property of the parents. When determining the scope of people who enjoy the visitation right, exercising or enforcing the visitation right, we also should take "the best interests of the child" as the object.