| If, at the time of divorce, either party has difficulties in life, the other party shall render appropriate assistance from his or her personal property like house, etc. Specific arrangements shall be agreed upon by both parties. In case no agreement is agreed upon, the people’s court shall make a decision. The assistance is not the support obligation between husband and wife, but the legal safeguards to protect the husband or wife who is in difficulties when the marriage relationship ended. It is beneficial to perfectly solve the divorce dispute, protect autonomy of the marriage and reduce the negative influence brought by divorce, which also reflect the laws’special protection for the disadvantaged party. Compared with the mature "Spousal Support" system in western country, the "Financial Assistance" system or "appropriate assistance" system in China lacks specific operating rules and offers a small range of the protection, in fact, the assistance system failed to play its due role in relief system after divorce. Therefore, some scholars have questioned the validity of the "Financial Assistance" system and put forward the view to establish China’s "Spousal Support" system after divorce. Although, two systems pursuit the same value and similar result, spousal support system after divorce in western country has more specific and concrete operation rules, which effectively maintain the fair and justice in the family law. Therefore, I attempt to design China’s spousal support system after divorce in this paper, to seek individual freedom and social justice on the base of reality in China and study of foreign maintenance system.Full paper includes four chapters.Chapter 1 is to discuss the basic theory of financial assistance system. Financial assistance is a statutory obligation which derives from former marriage. It has a strong legal basis and foundation which realizes the value of law, freedom and justice. Financial assistance or appropriate assistance has the same meaning and nature as "maintenance", "spousal support after divorce" and "compensation". Financial assistance in China is not the extension of husband and wife’s supporting obligation, but the statutory obligation derived from the marriage relationship. Appropriate assistance has specific legal characteristics and its important meaning which is different from other relief systems such as settlement system for divorce, financial compensation system for divorce, financial compensation system for damage caused by divorce, etc. Chapter 2 is to discuss the financial assistance system in China. The establishment of "Financial assistance "system in China has its special political mission and cultural background, which is a top-down reform mode. With the development of economy and improvement of political system, the financial assistance system failed to realize the anticipated legislation purpose as it confronts with various difficulties in judicial practice. Therefore, it is necessary to learn from spousal support system in advanced countries.Chapter 3 is to discuss the status and deficiencies existed in spousal support system after divorce in foreign countries. From the continental law system and common law system, we found that the support system after divorce has extremely detailed rules. Spousal support system after divorce can be divided into money support and housing support. Money Support is the main form and housing support reflects the general principles:children’s happiness is first.Chapter 4 is to discuss the establishment of China’s spousal support system after divorce. By the comparison of the support system with foreign countries, the absence and insufficiency of assistance system after divorce in China is obvious. Thus, it is more meaningful to replace the "financial assistance" system with "spousal support system after divorce", because the spousal support system is powerful to relive the disadvantaged party, to make up for the lack of social security and to promote the social harmony. We should learn from western countries, combined with situation in China, to set up as soon as possible a Chinese characteristics spousal support system. |
