Comparison between American Marriage Law and China Marriage Law
First, the similarities and differences of the essential elements of marriage.
(1) Conditions stipulated by American laws.
1, qualifications. Most States in the United States stipulate that registered marriages in the United States must be at least 18 years old regardless of the age of men and women; People who are over 16 years old but under 18 years old must obtain the consent of their parents or judges.
2. Registration conditions. In America, marriage requires registration and wedding. Article 20 1 of the United States Uniform Marriage and Divorce Act stipulates that a marriage between a man and a woman that has been approved, celebrated and registered is valid in this state. Most state laws also require married men and women to get married in front of clergy such as priests, judges or government officials. Article 206 of the Uniform Law on Marriage and Divorce stipulates that both the court and authorized government officials can officiate at a wedding or hold a wedding according to a religious ceremony. Unlike China's laws, in the United States, marriage certificates in different states are valid, which is similar to that in the United States. That is, the validity of marriage certificates ranges from 30 days to 60 days. During this period, both men and women must hold a wedding, otherwise they must re-register for marriage. In addition, both men and women have to wait for a waiting period of 3-5 days to apply for registration, which is finally issued by the court or the government.
(two) the conditions prescribed by the laws of China.
1, qualifications. China's marriage law stipulates that the age of marriage registration in China is not less than 22 for men and 20 for women, which is later than that stipulated in the United States. Advocate freedom of marriage and not interfere with legal marriage. In terms of the conditions for prohibiting marriage, it is forbidden for people with malignant infectious diseases to get married, especially those who may infect the next district, and it is forbidden to combine lineal blood relatives with collateral blood relatives within three generations.
2. Registration conditions. To establish a marriage relationship, both men and women must go to the marriage registration office to register their marriage in person, otherwise it does not belong to the legal relationship between husband and wife. Once registered, the relationship between husband and wife is established without going through the announcement period.
Second, the similarities and differences of invalid marriage.
(a) the situation of invalid marriage under American law.
Invalid marriage in American law refers to the lack of legal ability and willingness of the parties to get married, or other serious obstacles to marriage. According to the laws of most States in the United States, invalid marriage has no legal effect, and neither man nor woman has any rights and obligations of husband and wife. At present, invalid marriage cases mainly include the following categories:
1. Both parties to the marriage are within the scope prohibited by law. According to the laws of most states, no man can marry his immediate blood relatives and a certain range of collateral blood relatives, otherwise the marriage is invalid. For example, Massachusetts law stipulates that no man may marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandson, mother-in-law, grandmother, wife's daughter, wife's granddaughter, brother's daughter, father's sister and mother's sister.
2. A marriage that has not reached the legal age for marriage is invalid. If one party is under 18 years old at the time of the wedding, it is likely that the marriage will be invalid. Men and women who have not reached the legal age for marriage must register, usually with the consent of their parents or judges.
Bigamy is invalid. At present, except in Africa and some Muslim countries, most countries in the world do not recognize the marriage effect of bigamy. At present, bigamy is an invalid marriage in most States of the United States. And like the laws of China, bigamy is generally subject to criminal responsibility.
4. Fake marriage is invalid. Fake marriage generally refers to getting married for a certain purpose or purpose. Most of these happened in the field of immigration. That is, citizens outside the United States want to communicate with American citizen marriage immigration and the United States. In order to solve this problem, at present, American immigration law has stipulated that citizens outside the United States must live in the United States for more than two years in order to obtain a green card based on marriage.
(2) The situation of invalid marriage in China.
According to Article 10 of China's Marriage Law, a marriage under any of the following circumstances is invalid:
1, bigamy;
2. There is a kinship that prohibits marriage;
3. Suffering from diseases that are medically considered unsuitable for marriage before marriage and are not cured after marriage;
4. Not reaching the legal age for marriage.
Third, the similarities and differences of revocable marriage.
(a) the circumstances of revocable marriage in American law.
1, mental and physical imperfections. Mentality is not perfect, which mainly means that the parties can't understand the nature of marriage and the rights and obligations of marriage according to the mental state of the parties at that time, generally referring to mental patients and patients with severe mental retardation. And the body is not perfect, mainly refers to the impotence of the parties, and the other party does not know the symptoms of the other party when concluding the marriage relationship.
2. Forced marriage. That is, the marriage relationship is forced to express consent to marriage because of the coercion of the other party. For example, one party forces the other party to marry himself by violence, or a third party forces one party to marry by threats, inducements and other means.
(2) The situation of revocable marriage in China.
According to Article 11 of China's Marriage Law, if a marriage is coerced, the coerced party may request the marriage registration authority or the people's court to cancel the marriage. If the coerced party requests to dissolve the marriage, it shall do so within one year from the date of marriage registration. If the party whose personal freedom is illegally restricted wants to dissolve the marriage, it shall do so within one year from the date of restoring personal freedom. Therefore, the situation of revocable marriage in China is limited to a kind of coercion. Impotence and refusal to have sex can't be legal reasons for revocable marriage, but they can be used as a reference for determining whether the relationship between husband and wife really breaks down.
Four. Similarities and differences of divorce conditions and procedures
(1) American laws stipulate the conditions and procedures for divorce.
In the United States, divorce must be conducted through the court, and divorce registration cannot be conducted from the marriage registration office as in China. Even if both parties agree to divorce, it should be decided by the court. There are fault reasons and no-fault reasons for divorce. At present, all states in the United States apply the principle of no-fault divorce, and the standard of divorce is that the relationship between husband and wife has indeed broken down, which is the same as that in China.
1, the competent court; Divorce should be filed in the court where one party is located. At present, most States stipulate that the parties must live in the state for a certain period of time before they have the right to file for divorce. States have different regulations on the length of residence in the state when filing divorce proceedings, and the longest is one year, such as Washington, New Jersey and new york. The shortest one has no deadline, such as South Dakota. General state regulations are about 6 months, such as Mississippi and Hawaii; Shorter regulations range from 60 days to 6 weeks to 90 days, such as 6 weeks in Idaho and 90 days in Illinois.
2. Divorce procedure: According to the laws of China, the plaintiff who sues for divorce must pay legal fees. In the process of divorce proceedings, you can ask the court to issue an injunction prohibiting either spouse from transferring, mortgaging or hiding the same property, and prohibiting one spouse from harassing or disturbing the peace of the other spouse or any children. In case of danger of personal injury or emotional injury, the court may order one party to temporarily move out of the same residence. Some states also stipulate that both parties should mediate in divorce proceedings. Unlike almost all cases in China courts, American courts generally only apply mediation procedures in no-fault divorce cases. Generally speaking, mediation is necessary for issues involving child custody and visits.
3. Causes of fault: There are three main reasons, namely adultery, abuse and abandonment. Adultery is the most common cause of divorce. As in the judicial practice in China, it is very difficult to obtain evidence of adultery in the United States. However, unlike the cases handled by the courts in China, judges in some state courts in the United States often use presumption to determine whether a party has extramarital sex, such as evidence that the spouse lives in a hotel with other members of the opposite sex, and that men and women of the opposite sex live in the same room. If there is indirect evidence, but there is no evidence of direct sexual relations, the judge can also determine that sexual relations have taken place through the reasoning of ordinary people's thinking and behavior, unless the suspect can cite evidence to the contrary.
4. separation system: most States in the United States have stipulated separation systems. That is, under the premise of subjective desire for divorce, both parties can divorce without living together for more than a period of time. The length of separation varies from state to state, ranging from six months to five years. Generally, most States stipulate that it is about 1~3 years. According to the unified Marriage and Divorce Law, if a person has been separated for more than 180 days, he can apply to the court for divorce.
(2) divorce conditions and procedures stipulated by China laws.
There are two ways to dissolve marriage in China: divorce by agreement and unilateral divorce. If both parties agree to divorce, they can apply for divorce registration at the marriage registration office where one party's account is located, without going to the court in person. The second way is to apply to the party who does not agree to divorce but insists on divorce, and file a divorce lawsuit with the court to dissolve the marriage relationship. The court found through trial that the parties have one of the circumstances stipulated in Article 46 of the Marriage Law, that is, if mediation fails, divorce shall be granted:
1, bigamy or cohabitation of a spouse with others;
2, the implementation of domestic violence or abuse, abandonment of family members;
3. Bad hobbies such as gambling and drug abuse;
4. Separated for two years due to emotional disharmony;
5. Other circumstances leading to the breakdown of the relationship between husband and wife.
If one party is declared missing and the other party files a divorce lawsuit, the divorce shall be granted. In addition to the above circumstances, the China court ruled for the first time that it did not agree with the divorce request of the parties. Unless it has been proved that the relationship between husband and wife has indeed broken down. However, if both parties file divorce proceedings again six months after the first-instance judgment takes effect, the probability that the court will support the plaintiff's claim will greatly increase. Therefore, compared with American marriage and family law, China's divorce procedure is simple and clear, combining principle with flexibility.
V. Divorce and Division
(A) the principle of property division in American court divorce
1, extensive implementation of prenuptial property agreements. Every state in the United States allows couples to reach an agreement on property disposal and sign relevant agreements before divorce. The contents of the agreement include how to distribute property, and the commitment of debts and creditor's rights. The divorce agreement can only take effect after the court has examined and agreed.
2. Divorce as * * * and the scope and distribution principle of property division. According to the United States "Uniform Marital Property Law" 1983, all the property acquired by both parties after marriage is the same property, and both parties enjoy an inseparable half interest in the same property. Except for the following attributes:
(1) Property acquired through donation or property left to one spouse but not both when a third person dies;
(2) Property acquired through personal property exchange;
(3) Property determined as personal property according to the judgment, marriage property agreement or other written agreements;
(4) natural appreciation of personal property;
(5) Compensation for personal and property damage;
(6) compensation for personal injury.
(2) The principles of divorce and division of property in China law.
According to Article 39 of the Marriage Law and the relevant judicial interpretation in the Supreme People's Court, the property acquired during the existence of the relationship between husband and wife is generally owned by one person in half, which is consistent with the principle stipulated by the relevant laws in the United States. However, unlike American law, China's inheritance and donation law is first presumed to be the same property, unless the inheritance has been donated and clearly owned by one party.
The intransitive verb supports the spouse after divorce.
(a) American law on spousal support after divorce
The support for spouse after divorce refers to the help and assistance provided by one party to the other after divorce except the division of property, mainly referring to the payment of money or property. Including the man's contribution to the woman, but also refers to the woman's contribution to the man.
1. Conditions for obtaining alimony from the original spouse after divorce:
According to Article 308 of the United States Uniform Marriage and Divorce Law, in the litigation of divorce or legal separation, or in the litigation of alimony, as long as it is found that one party's property ownership is not enough to maintain his reasonable living needs after divorce, and he can't work because of raising children, or even if he can't meet the above needs, he can order the other party who has the ability to pay to perform the alimony obligation. Of course, ordering the other party to pay alimony should refer to the following factors:
(1) Status quo of property ownership of dependents;
(2) the present situation of the economic income ability of the dependents;
(3) the necessary time for the dependent to find a suitable occupation for education or training;
(4) the living standard during the original marriage;
(5) the duration of the marriage relationship;
(six) the age, physical condition and mental condition of the dependents;
(seven) the affordability of the maintenance obligor.
2. Maintenance quantity: Of course, the maintenance quantity should be considered according to specific factors. Generally speaking, the amount of alimony should take into account the economic needs of the dependent, whether he has a job, the amount of property he owns, the economic conditions of the dependent and the living standard during the marriage relationship. Some states set minimum maintenance fees. For example, the Texas family law clearly stipulates that the spouse's alimony is not less than $2,500 per month, or 20% of the debtor's average monthly income. The case law of most States determines the standard of obtaining the client's support according to the specific situation.
(two) the provisions of China law on the right of spouse support after divorce.
According to China's marriage law, there are two kinds of economic rewards that one party gives to the other. One is economic compensation, which is based on Article 40 of the Marriage Law. This article stipulates: "If the husband and wife agree in writing that the property acquired during the existence of the marriage relationship belongs to each other, and one party does more obligations to raise children, take care of the elderly, and assist the other party in their work, they have the right to demand compensation from the other party at the time of divorce, and the other party shall pay compensation"; The second is economic assistance, which is based on Article 42 of the Marriage Law. This article stipulates: "In the event of divorce, if one party has difficulties in life, the other party shall give appropriate help from his personal property such as his house. Specific measures shall be negotiated by both parties; If the agreement fails, it shall be decided by the people's court. " Although this provision is financial aid, it is obviously different from the concept of "support". It can be seen that the marriage law of our country does not stipulate the maintenance of spouses after divorce, which is obviously easy to disadvantage the weak, especially the woman.
Six, after divorce, the payment of child support.
(a) the relevant provisions of American law on the payment of child support after divorce
1. The payment of alimony cannot be agreed by both parties.
In our country, the court does not object to the parties agreeing on the amount of child support by themselves, and even does not think that it is invalid for one parent to agree that the other parent does not pay child support. Different from the practice of Chinese courts, American law does not allow parents to agree on the amount of alimony at the time of divorce, otherwise the court will think that the agreement may infringe on the rights and interests of children and is invalid. According to the Uniform Marriage and Divorce Law, the following factors should be considered when determining child support:
(1) children's financial resources;
(2) parents' financial conditions;
(3) the living standard of children before divorce;
(four) the funds needed for the upbringing and education of children;
(5) The financial ability of parents without custody.
2. There is a certain proportion between alimony and income.
First, under the percentage support mode, only the amount of support that the person who has the obligation to support should pay is determined, regardless of the actual income of the guardian. As stipulated by the state:
The second is the economic income sharing model, which determines the total amount of child support and the amount paid by parents based on the total income of parents.
(two) the relevant provisions of China law on child support.
Article 36 of China's Marriage Law stipulates that parents still have the obligation to support their children after divorce, and according to relevant laws and regulations, they still bear joint and several liability for the civil liability arising from their children's divorce. According to the judicial interpretation in the Supreme People's Court, China, the criterion for judging child support is to pay 20% to 30% of the client's salary according to the actual needs of the child and the local living standard. The courts in our country basically do not determine the amount of alimony that should be paid by the party directly raising the child in the judgment, but only stipulate the amount of alimony that should be paid by the party without direct custody.