Research On The Divorce Economic Compensation System

The divorce economic compensation system created in the Marriage Law of2001constitutes the divorce relief system in China with the divorce economicassistance system and the divorce damage compensation system, the system has anindelible effect on the affirmation of housework’s value, achieving the substantivejustice of law, maintaining the stability and overall interests of marriage and family,the academia all cheered for the establishment of the system. But the divorceeconomic compensation system with high expectations doesn’t have a perfect effectover ten years. Therefore, many scholars launched the investigation, discussion andanalysis of the system and discovered many legislative defects and implementationdifficulties, such as the too narrow applicable scope, the limitations of the exercisetime and the lack of the compensation standard and way. In this discussion, theacademia has controversy on the divorce economic compensation system’s existenceor abolishment, some scholars believe that the system should be abolished since itcan’t work and the system of common property between the wife and husband cansolve the divorce economic compensation problems after being perfected, but mostscholars believe that the divorce economic compensation system has an irreplaceablevalue which can affirm the value of housework, maintain the legitimate rights andinterests of the weak in marriage and family and then change the traditional andbackward family production pattern of “male outside,female inside”. So the systemcan’t be replaced by others. But we should remove the plight of the system andenable it to “normal operation” so it is possible to realize the value of the system.Before analyzing the problems of the system, we should analyze the divorceeconomic compensation system’s basic concept, characteristic and function as aguide to locate the existing problems and crux accurately. Through the analysis, weunderstand that the characteristic of the divorce economic compensation system isthe extension of the obligation of husband and wife. As an independent lawsuit rightof claim, the divorce economic compensation right to claim aims at affirming housework’s value, achieving the substantive justice of law and maintaining thestability and overall interests of marriage and family, so the system is more focusedon protecting the legitimate rights and interests of the weak side of marriage andfamily, which reflecting the basic concept of “human-oriented”. Aiming at theexisting problems of the system, we suggest expanding the system’s applicable scopeto the common property system, extending the exercise time of the divorce economiccompensation right to claim, providing the compensation standard and way bylegislation and allocating the burden of proof appropriately, etc. According this trainof thought, this paper is strive to make the system protect the legitimate rights andinterests of husband or wife who pay more for the family, change the situation of thehousework’s unequal distribution through the system’s widely implementation,maintain the stability and harmony of the marriage and family.