| Nowadays,"Li Guoqing’s divorce case" and "Fukuhara Ai’s separation of husband and wife" are full of news.More and more people begin to mention "separation of husband and wife",which is no longer limited by the traditional idea of "family ugliness should not be publicized".Therefore,the author began to search the judicial cases,and found that there are many problems in the judicial practice of the separation of husband and wife in our country,which are difficult to solve according to the current law.The system of separation of husband and wife originated in the middle ages.Due to the traditional Christian doctrine that divorce is prohibited,the concept of separation came into being,for the sake of solving the matter of the objective reality of marital breakdown.With the continuous advancement of religious reform and the change of marriage values,the separation system of husband and wife has been recognized and accepted by more and more countries,and has been endowed with new value and significance in the new era.At present,many countries or regions have incorporated the separation system into the marriage legal system.In the civil code of the People’s Republic of China(hereinafter referred to as the "Civil Code")promulgated in 2020,there is no systematic legislative provisions on the separation system of husband and wife,but it only continues the fact that the husband and wife have lived apart for two years due to discord in the marriage law of the People’s Republic of China(hereinafter referred to as the "marriage law")as one of the criteria for determining the broken relationship between husband and wife Divorce can be granted.However,there are no relevant provisions on the definition of separation,the rights and responsibilities in the course of the period of separation,and the legal consequences,which lead to the problems of "secondary separation","whether separation is difficult to reach a consensus","whether living in two rooms in the same house can be identified as separation" in judicial practice.Therefore,this dissertation takes the separation system of husband and wife as the research target,adopts the methods of case analysis,comparative study and legal hermeneutics to study the separation system of husband and wife,in order to provide suggestions for the improvement of marriage and family legislation in China.This paper is divided into four parts.The first part is the analysis of classic cases of separation.This dissertation selects three classic cases from China’s judicial documents network,and analyzes the key issues about the separation of husband and wife,namely,whether living in two rooms in the same house can be identified as separation,the property distribution during the separation and the child support,and how to prove the fact of separation,so as to solve the problem as soon as possible.The second part summarizes the current situation and matters of legislation and judicial practice in China.First of all,it combs the relevant legislative provisions on separation,and points out the problems.Secondly,consult,sort out,analyze and summarize the judicial documents within a certain range,and on this basis,find out various problems existing in the current judicial practice.The third part,analysis and comparison of extraterritorial legislation.This dissertation compares and summarizes the relationship between separation system and divorce system,classification,legal effect,time limit,termination and suspension of the separation of husband and wife,so as to provide experience for the construction of the separation system of husband and wife in China.The fourth part advances the legislative suggestions on the construction of the separation system of husband and wife.Based on the previous studies,the arrangement of extraterritorial legislation and the realistic national conditions,combined with the new divorce system under the civil code,this dissertation advances some legislative suggestions on the construction of the separation system of husband and wife. |
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