Research On Protection Of Vulnerable Parties In Divorce Cooling-Off Period

In recent years the divorce rate has been keeping going up in China.In order to reduce the divorce rate and make families stabler,the Divorce Cooling-off Period System has been set in our country,and it has achieved initial results.But in legal practice,the system has also exposed its shortcomings,that is,it neglects the protection of the vulnerable parties.This paper uses Social Contract Theory,Fairness and Justice Theory and Welfare State Theory to demonstrate the legitimacy of protecting the vulnerable parties in the Cooling-off Period,and to reveal their disadvantageous situation since the implementation of the Divorce Cooling-off Period System.Minor children without the ability to survive independently,the elderly,the disabled with severe physical defects or patients suffering from serious diseases may be unable to maintain their basic survival because of the lack of care.During the Cooling-off Period,women,minors,the elderly,the disabled or the sick may become the victims of domestic violence,abuse and even death.During the Cooling-off Period,one of the spouses may infringe upon the other’s property rights or they may both infringe upon the other’s property rights,and even worse,they may infringe upon the property rights of minor children.However,the deficiency of the Divorce Cooling-off Period System in legislation and the limited practical function of the present Domestic Violence Relief System make the protection of the vulnerable parties in dilemma in the Cooling-off Period.The "one-size-fits-all" provision of Divorce Cooling-off Period System ignores the protection for the vulnerable parties,and there is a legislative gap in protecting them.The present Domestic Violence Relief System has its shortcomings,which are difficult to function well and don’t have good effects.Something must be done to solve the existing problems of the Divorce Coolingoff Period System in protecting the vulnerable parties.On the one hand,in terms of legislative guarantee,the Divorce Cooling-off Period System should be prudently used or directly excluded from the application in cases of domestic violence,abuse,murder and property infringement.In order to protect the vulnerable parties,when husband and wife jointly raise minors or support the elderly,the disabled with severe physical defects or the patients suffering from serious diseases,the flexibility of the Cooling-off Period should be increased,and it should be set different from the general situation so as to extend the consideration time of both husband and wife.What’s more,the Divorce Cooling-off Period System has left a legal gap in the protection of the vulnerable parties.The legislator should make relevant laws and regulations to protect their legitimate rights and interests during the Cooling-off Period.On the other hand,considering the cost and benefit of the relief mechanism for the protection of the vulnerable parties in the Cooling-off Period,the author believes that it’s best to improve the existing Domestic Violence Relief System,to add some new systems to solve other problems of the Divorce Cooling-off Period System,and to formulate new norms and regulations to connect the Divorce Cooling-off Period System,the existing Domestic Violence Relief System and the new systems,by which a coordinated and unified relief mechanism can be established to protection vulnerable parties.