On The Justification And Perfection Of The Matrimonial Property Regime During Separation

In real life,the phenomenon of spouse separation is not uncommon,because the marital property is in a special state after separation,often out of the control of one party,and disputes over marital property are pouring in.However,the separation system is still left blank in China’s national legislation,and the existing provisions are not only insufficient to resolve marital property disputes,but may even aggravate the mistrust between husband and wife and the transfer and concealment of property at that time.It was therefore important to study the regime of matrimonial property during separation.Through searching and combing judicial cases and conducting empirical analysis,in practice,there are problems such as the poor operability of the provisions on "de facto separation" under the current law,the unfairness of applying the statutory joint property system during the separation period,and the application of the agreed property system increasing year by year but lacking a corresponding publicity system.The lack of existing laws is also the trigger for the aggravation of disputes between husband and wife.During the period of separation,the property relationship between the spouses has changed dramatically,and the legal basis for the application of the legal community property regime has been lost,and the original legal community property regime should no longer be continued.Improving the matrimonial property system is conducive to preventing rash divorce and fairly protecting the property rights and interests of all parties.It is a natural aspect to improve the matrimonial property regime during separation by formulating an extraordinary legal property regime during the period of separation,and it is necessary to improve the existing contractual property system and clarify the antagonistic effect of the matrimonial property regime during this period.Through the investigation and analysis of the types of separation,recognition standards,matrimonial property regimes and other relevant legal norms in German,French,Italian and other countries,the extraterritorial extraordinary property system applicable during the period of separation provides reference experience.On the basis of drawing on extraterritorial legislation,this thesis puts forward suggestions on improving the matrimonial property system during the period of separation in China,including optimizing the existing types of separation,and providing ideas for resolving many property disputes arising during the period of separation.The author believes that the improvement of China’s matrimonial property system during separation should be guided by the principle of autonomy of will,the principle of taking care of the rights and interests of vulnerable parties,and the principle of maintaining marital relations.In terms of specific system design,on the one hand,the "registration and separation" procedure can be added to provide the husband and wife with a clear and simple procedure in addition to "de facto separation" and "agreed separation",and at the same time can better protect the property rights and interests of the parties.On the other hand,by refining the rules of the extraordinary legal property system,the property rights and interests of the parties and third parties under the "de facto separation" type can be provided.First of all,due to the many obstacles to the presentation of evidence and determination of "de facto separation" in practice,improving the rules for determining de facto separation is a natural move to refine the extraordinary legal property system during the period of separation,and it is recommended to clarify the requirements for the establishment of de facto separation,set up rules for determining the period of separation and procedural rules for the recognition of separation.Second,taking into account the experience of China’s current law and extraterritorial law,the author suggests that two years of separation be used as a prerequisite for the application of the extraordinary legal property regime.Third,it is more reasonable to adopt the declared extraordinary property regime under the "de facto separation" model,and based on the privacy of marriage,the author believes that the subject of the application for the application of the extraordinary property regime should be limited to one of the spouses.Fourth,in order to better protect the third parties and the security of transactions,we can learn from French legislation to add the right of objection of bona fide third parties.Finally,in view of the fact that the husband and wife do not have the background of living together and joint production and operation during the separation period and the principle of the relativity of debt,the author suggests that the debt owed by one of the spouses during the separation period should first be recognized as the personal debt of the husband and wife,and only when there is evidence to prove that it is used for family common living,joint production and operation,and treatment of diseases of vulnerable family members should be recognized as joint debt.