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(1) The differences on law system
① The legislation system of Chinese marriage law.
Basically speaking, Chinese law is statute law. At present, the legislations adjusting marriage relationship in China include Marriage Law of the People’s Republic of China which was amend by National People’s Congress on 28th Apr., 2001, and the judicial interpretation by the supreme court to apply Marriage Law of the People’s Republic of China. Basically, the court will refer to these law and judicial interpretation.
②The legislation system of Japanese marriage law
Japan is one of the minority countries owning civil code in the world. The contract marriage、the rights and duties and the divorce are regulated in the fourth chapter named Family. As it were, the second chapter is the same as the Chinese Marriage Law. The following discussion will focus on this chapter as well.
(2) The differences on requirements of the marriage contract
Japan
① Qualification requirement
The article 731 of Japanese Civil Law regulates, no marriage may be contracted before the man has reached 18 years of age and the woman 20years of age. Because the audit should be over 20 in Japan, so the young people must get the approval of mother or father before contract marriage.
At the same time, Japan marriage law prohibits the female to get married when she divorced or within 6 months of the dissolution of the last marriage contract. The exception of the article is when the woman was pregnant before divorce or the dissolution of the last marriage contract. Under this condition, she can marry with somebody after the birth of a child. The lineal relatives by blood or collateral relative by blood up to the third degree of kinship, lineal affinity are the object of prohibiting marriage.
② Format requirement
The marriage will not have force ad effect unless it is declared in Japan. The couple and more than two audit witnesses should join in this declaration, and the procedures will be working by verbalism or ominous written format. The declaring place can be chosen from the ancestral home or locus of any spouse.
China
① Qualification requirement
Compared to Japanese marriage law, the marriage age regulated in marriage law of the P.R.C is a little bit later. In China, the registered marriage age of male is no later than 22, and the female is no later than 20. We advocate the marriage freedom, and a legal marriage will not be interfered. In the aspect of the requirements of marriage prohibition, the law prohibits the patients, who have serious infectious diseases and especially may infect the next generation, to get married, and the marriage between the lineal descent or collateral relative by blood up to the third degree of kinship.
② Format requirement
The two parties should register in marriage registration organization by themselves, or, the marriage will be illegal.
(2) Void and dissolved marriage
The same as Japan, void marriage and dissolved marriage exist in Chinese marriage law. But the scopes of void marriage and dissolved marriage are different, like; numbers of void marriage in Chinese marriage law is belonging to dissolved marriage in Japan. The key difference between void marriage and dissolved marriage is void marriage has retroactivity, and in contrast, dissolved marriage has not retroactivity.
Japan
① Void marriage
The marriage will be void under these two circumstances in Japan:
First, the parties have not declaration of will to marry because of mistaken identity or other reasons;
Second, the parties did not declare the marriage
Chinese marriage law is not referring to the first circumstance; and the second is equivalent to the lack of marriage registration in China and it is regarded as live-in relationship.
② Dissolved marriage
The marriage is dissolved if:
First, one of the married parties has not reached the statutory age for marriage;
Second, either of the married parties commits bigamy;
Third, violate the regulation for the period of awaiting remarriage (the female can’t get married unless she experiences 6 months after divorced or the last marriage was discharged);
Fourth, there is the prohibited degree of kinship between the married parties;
Fifth, violate the regulation on the prohibited adoptive relation to marry;
Sixth, the marriage by fraud or coercion.
In regarding to these circumstances, in China, the majority is void marriage, and there’s no regulation on the third point and the fifth point is dissolved marriage as well. The Japanese dissolved marriage may results in the following legal consequence: If no body predicted that dissolved reasons exist when getting married, anybody, who is received the properties under the marriage, should return the interest within the limits. Or, he should return all the properties, and bear the liability for damages if the counterparty is goodwill.
China
①Void marriage
According to the article 10 of Marriage Law of the People’s Republic of China, the void marriage exists if:
First, either of the married parties commits bigamy;
Second, there’s the prohibited degree of kinship between the married parties;
Third, before marriage either of the parties if suffering from a disease which is regarded by medical science as rending a person unfit for marriage and which has not yet been cured after marriage; or
Fourth, one of the married parties has not reached the statutory age for marriage.
② Dissolved marriage
According to the article 11 of Marriage Law of the People’s Republic of China, where marriage is contracted by coercion, the coerced party may appeal to the marriage registration office or the People’s Court for annulment of such marriage. Such an appeal for annulment of marriage made by the coerced party shall be submitted with one year from the date of marriage registration. Where the party concerned whose personal freedom is illegally restrained, such an appeal for annulment of marriage shall be submitted within one year from the date of the restoration of the personal freedom.
(3) The differences on the proceedings and requirements of divorce
The divorce proceedings and requirements regulated in Japanese Marriage Law
As the same as China, Japanese Marriage Law takes the systems both divorce by agreement and judicial divorce.
① Divorce proceedings
First, divorce by agreement
Similar to the system in China, divorce by agreement needs both parties and more than two adult witnesses, and should be suggested by verbal or written form. The apply proceedings conforms to applying marriage in Japan.
Second, judicial divorce
If one party has a legal reason, he or she can start divorce proceedings. The Japanese judicial divorce proceedings include mediation，trial and judgment.
First, divorce by mediation
One party desiring a divorce should apply mediation to the family court. If one party appeals directly to a People’s Court to start divorce proceedings, the court transfers to the family court to carry out mediation by judgment, or faculties and functions. During the divorce mediation, if the parties desire the divorce and the mediation is considered to be legal and written down in the conciliation statement by mediation commitment, the mediation divorce is valid the same as the judgment.
Second, divorce by trial
Under the case of the failing divorce by mediation, if the family court deems that it is necessary to take the suggestions from the mediation board, for the interests of the parties, judicial divorce will start according to faculties and functions if it does not betray to the any party meanings. At that time, only if the parties agree to divorce but can’t make the agreement on the partition or other questions, the judicial divorce could be proceed. If the mediation board makes a reasonable plan to resolve and the parties refuse to receive unreasonably, the family court could take compulsive means. But if the parties don’t desire the judgment from the family court, they could bring the demurral without any reason within two weeks and make the judgment from the family court invalid.
Third, judgment divorce
If the parties fail to the mediation divorce and have not start the trial divorce, or through the trial divorce, they bring demurral to make the judgment invalid, they could appeal to the court of common pleas to start a divorce action. This action proceeds according to the procedure trial. During the lawsuit, the divorce problems, the claims for solarium related to the divorce, partition and child-care will be settled together. If any party dissatisfied with the judgment, they could bring up the appeal.
The trial divorce is not always based on the take proceedings. The trial divorce that is not restricted by the legal divorce requirements regulated in the Japanese Civil Code is different from the judicial divorce. Because it is not founded on the contentment of the parties, so it takes intermediate character, and is closer to the judicial divorce.
② Divorce requirements
During the divorce lawsuit in Japan, the reasons for legal dissolution of marriage are composed if:
First, one party commits unfaithfulness. It means that either of the parties has the sexual unfaithfulness. The conception is wider than adultery.
Second, malicious abandon by the spouse, that means either of the parties give up duty of living、cooperation and support. The standard to judge is whether either of the parties is dissatisfied with the family life of mutual support.
Third, the circumstance has last for 3 years whether either of the parties is still survival. Without reference to the reasons, the 3 years period starts from his or her last information.
Fourth, either of the parties has the serious mental illness and hopeless to cure. A critical mental illness will not cause to divorce. The method to distinguish is the doctor’s text material and to judge from the point of legal view.
Fifth, other major causes that can’t maintain the family relationship. The people’s court will judge what the major causes are. Usually, from the comprehensive consideration on the harmonize extent、economic position etc., of the parties, the court permits to divorce if they deem that the family relationship can’t exist in any case.
Although the above-mentioned cases exist, the court will reject the claims of plaintiff from the manifold consideration on whether it is adequate to maintain the marriage relationship.
The divorce proceedings and requirements regulated in Chinese Marriage Law
In Chinese Marriage Law, there are two methods to the dissolution of marriage: divorce by agreement and judicial divorce by one party. Both husband and wife who desiring the divorce shall apply for divorce registration to the place where the Chinese citizen has his/her residence registration. The other way is, when one party doesn’t agree to divorce, one party could remove the marriage through appealing to the People’s court by the judgment. If the party commits these circumstances that are prohibited in the article 46, divorce shall be granted if mediation fails:
First, bigamy or one party who has a spouse cohabits with another person of the opposite sex;
Second, family violence is committed, or a family member is maltreated or abandoned;
Third, where both parties has separated from each other for two full years for lack of mutual affection;
Fourth, other cases which lead to the shattering of affection between husband and wife.
Fifth, other situations leading marital relation’s breaking up.
Where one party is declared to be missing and other party starts divorce proceedings, divorce shall be granted.
Normally, the first judgment from the People’s court disagrees with the divorce except under those cases. But except that any one can prove mutual affection no longer exists. But if one party takes a divorce action after the first judgment becomes effective within 6 months, the probability to get the support from the people’s court will increase. Thus, compared to American Family Law, Chinese divorce proceeding seems easier and embodies the combination of principle and flexibility.
(5) The properties division after divorce
The properties division regulated in Japanese Marriage Law
①The parties could negotiate to determine whether the properties need division, and the methods and the sum of the division properties.
② If the parties fail to reach a negotiation, one party could apply to family judgment bureau to deal. The family judgment bureau will consider the sum of the properties jointly owned by the husband and wife, and other circumstances that whether to divide and the sum and methods of division. Other circumstances include:
First, the period of family life;
Second, the asset of the family;
Third, the marriage status, the occupation, mutual support;
Fourth, whether one party loses the income because of the resignation after marriage;
Fifth, properties obtained from gift during the period of marriage;
Sixth, one party commits unfaithfulness or other reasons.
When the family court is dealing with these cases, if the divorce caused by the counterparty’s illegal behavior, it is best to consider the support payments when they calculate the sum of partitioning.
The properties division regulated in Chinese Marriage Law
According to the article of Marriage Law of the People’s Republic of China and some related judicial interpretations by the supreme court, the properties jointly owned by the husband and wife shall be distributed equally in principle.
(6) The maintenance system after divorce
Japanese maintenance regulation
① The requirements to acquire the costs of maintenance
First, the properties jointly owned by the husband and wife and the compensation have been calculated, however, one party still in the difficulty of life;
Second, the permission for the properties of the spouse.
② The cost of maintenance
The court will consider all factors when they calculate the costs of maintenance. The detailed time of these factors is that the ending of the final oral argument or successful mediation during the trial proceeding, and the main factors are “difficulty and solvency”.
③ The payment methods of the costs of maintenance
First, the one-off payable corpus;
Second, the payable corpus by installment;
Third, the payment by fixed date;
Fourth, deliver the goods.
Normally, the first two methods are taken in the legal practice.
The regulation on the spouse maintenance after divorce under Marriage Law of the P.R.C
According to Marriage Law of the People’s Republic of China, economic supports include two ways. The first is economic compensation regulated in the article 40,”Where the husband and the wife agree in writing that the property acquired by them during the period in which they are under contract of marriage is in their separate possession, if one party has performed more duties in respect of bringing up the child, taking care of the old and assisting the other party in work, it shall, at the time of divorce, have the right to request the other party to make compensation for the above, and the other party shall do so accordingly” The second is economic assistance regulated in the article 42. “If, at the time of divorce, 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. Specific arrangements shall be made by both parties through consultation. If they fail to reach an agreement, the People’s Court shall make a judgment.” Obviously, the economic assistance is different from the maintenance. Thus, Marriage Law of the P.R.C does not prescribe the conception of the spouse maintenance after divorce that is easy to place women at a disadvantage. |
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