DIVORCE

fault and no-fault

• there are two basic approaches to divorce

• fault based and no-fault based.

'no-fault'

• 'no-fault' statutes, divorce does not require a party to assert fault on the part of their partner leading to the breakdown of their marriage.

fault

• a party would have to prove a ground, typically 'desertion,' 'abandonment,' 'cruelty,' or 'adultery

• In jurisdictions adopting the 'no-fault' principle, some courts may still take into account the behaviour of the parties when dividing property, debts, evaluating custody, and support

• Prior to the late 1960s, nearly all countries that permitted divorce also required proof by one party that the other party had committed an act incompatible to the marriage.

• In the United States, no-fault divorce is now available in all 50 states.

Marriage Law of the PRC

• Divorce shall be granted if husband and wife both desire it. Both parties shall apply to the marriage registration office for divorce.

• appropriate arrangements have been made ( children and property), the divorce certificates will be issued

• In the China, adopting the 'no-fault' principle

restriction

If the spouse of a soldier in active service desires a divorce, the matter shall be subject to the soldier's consent, unless the soldier has made grave errors.

• A husband may not apply for a divorce when his wife is pregnant, or within one year after the birth of the child, or within six months after the termination of her gestation.

In China

• In one of the following cases, divorce shall be granted

• (1) where one party commits bigamy or cohabits with another person of the opposite sex;

• (2) where one party indulges in family violence or maltreats or abandons family members ;

• (3) where one party indulges in the gambling, drug taking, etc. and refuses to reform after repeated persuasion;

• (4) where both parties have separated from each other for two full years for lack of mutual affection;

• (5) other cases which lead to the shattering of affection between husband and wife.

In China

If a party proves that the above situation(5 cases), the divorce may not be granted(contested divorce):

• If the court does not permit divorce, the party may sue for divorce after six months of the judgment of the Court. In this case, the judge will normally be the judgment to allow divorce

Summary divorce

• In U.S. one of the following cases is summary divorce:

• Short marriage (less than 5 years)

• No children

• Marital property is under a threshold

• Each spouse's personal property is under a threshold

Uncontested divorce

• It is estimated that upwards of 95% of divorces in the U.S. are "uncontested", because the two parties are able to come to an agreement

Collaborative divorce

• the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation

Mediated divorce

• a mediator facilitates the discussion between the two parties by assisting with communication and providing information and suggestions to help resolve differences.

• the separating parties have typically developed a tailored divorce agreement that can be submitted to the court.

divorce rate

• a wide range of factors correlating with the divorce rate including frequency of

• sex,

• wealth,

• race,

• and religious commitment

Age at marriage for those who divorce in America

• Age Women Men

• Under 20 years old 27.6% 11.7%

• 20 to 24 years old 36.6% 38.8%

• 25 to 29 years old 16.4% 22.3%

• 30 to 34 years old 8.5% 11.6%

• 35 to 39 years old 5.1% 6.5%

The divorce rate in America for first marriage, vs second or third

marriage•

• 50% percent of first marriages, 67% of second and 74% of third marriages end in divorce, according to Jennifer Baker of the Forest Institute of Professional Psychology in Springfield, Missouri.

According to enrichment journal on the divorce rate in America:

• The divorce rate in America for first marriage is 41%The divorce rate in America for second marriage is 60%The divorce rate in America for third marriage is 73%

The divorce rate in America for childless couples and couples wit

h children• According to discovery channel, couples with chi

ldren have a slightly lower rate of divorce than childless couples.

• Sociologists believe that childlessness is also a common cause of divorce. The absence of children leads to loneliness and weariness and even in the United States, at least 66 per cent of all divorced couples are childless.

Divorce rate in china

• According to statistics, in 2010, 1.20 million couples got married, but 1.961 million couples were divorced. In this rate, last year on average 5,300 couples were divorced in each day

• In 2010, 31 provinces most divorced couples were from Sichuan Province (169,249) followed by Jiangsu (120,947) and Shandong (116,368). The least people were from Tibet, 459 pairs.

Property

• The following property acquired by the husband and the wife during the period in which they are under contract of marriage shall be in their joint possession:

• (1) wages and bonuses;

• (2) proceeds of production and business operation;

• (3) incomes of intellectual property rights;

• (4) property acquired from inheritance or presentation, with the exception of such property as stipulated by the provisions of the item of Article 18 of this Law; and

• (5) other property which should be in their joint possession.

• Husband and wife shall enjoy equal rights in the disposition of their jointly possessed property.

The property belong to one party

• The property in the following cases shall belong to one party of the couple:

• (1) the property that belongs to one party before marriage;

• (2) payments for medical expenses received by one party who suffers physical injury, subsidies for living expenses granted to the disabled subsidies, etc.;

• (3) the property to be in the possession of one party as determined by will or by an agreement on gift;

• (4) articles for daily use specially used by one party; and• (5) other property which should be in the possession of o

ne party.

divorce settlements

• according to survey in the UK

• women obtained a better settlement than men in 60% of cases.

• In 30% of cases the assets were split 50-50,

• and in only 10% of cases did men achieve better settlements

In CHINA

• At the time of divorce, the husband and the wife shall seek agreement regarding the disposition of their jointly possessed property

debts

• debts incurred jointly by the husband and the wife during their married life shall be paid off jointly by them

• At the time of divorce, debts incurred jointly by the husband and the wife during their married life shall be paid off jointly by them. Where their jointly possessed property is insufficient to pay the debts, or the property is in their separate possession, the two parties shall discuss alternative ways of payment; if they fail to reach an agreement, the People's Court shall make a judgment.

less or no property

• one party conceals, transfers, sells off or destroys the property in the joint possession,

• or forge debts in an attempt to encroach upon the property of the other party,

• the former may get less or no property

children

• The relationship between parents and children shall not come to an end with the parents' divorce.

• After divorce, whether the children are directly put in the custody of the father or the mother, they shall remain the children of both parents

• If, after divorce, one parent has been given custody of a child, the other parent shall bear part or the whole of the child's necessary living and educational expenses.

• The agreement or court judgment on the payment of a child's living and educational expenses shall not prevent the child from making a reasonable request, when necessary

Ex-spouse supporting

• one party has difficulty in supporting himself or herself, the other party shall render appropriate assistance with his or her own property such as his or her residential house

Alimony

• Alimony (also called maintenance (Britain) and spousal support (U.S.)) is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce.

• The determination of alimony varies greatly from country to country and from state to state within the U.S. Some state statutes give explicit guidelines to judges on the amount and/or duration of alimony.

• In Texas, Mississippi and Tennessee for example, alimony is awarded only in cases of marriage or civil union of ten years or longer and the payments are limited to three years unless there are special, extenuating circumstances.

• In Delaware, spousal support is usually not awarded in marriages of less than 10 years.In Kansas, alimony awards cannot exceed 121 months. In Utah, the duration of alimony cannot exceed the length of the marriage. In Maine, Mississippi, and Tennessee alimony is awarded in marriages or civil union of 10 to 20 years and the duration is half the length of the marriage barring extenuating circumstances.

In general, four types of alimony.

• Temporary Alimony: Support ordered when the parties are separated prior to divorce.

• Rehabilitative Alimony: Support given to a lesser earning spouse for a period of time necessary to acquire work outside the home and become self-sufficient.

• Permanent Alimony: Support paid to the lesser earning spouse until the death of the payor, the death of the recipient, or the remarriage of the recipient.

• Reimbursement Alimony: Support given as a reimbursement for expenses incurred by a spouse during the marriage (like educational expenses).

compensation

• Where one of the following circumstances leads to divorce, the unerring party shall have the right to claim compensation:

• (1) bigamy ;• (2) cohabits with another person of the op

posite sex;• (3) family violence • (4) a family member is maltreated or aban

doned.

• Thank you!