In the practice of dealing with foreign marriage cases, the marriage lawyer shall get a general idea and master the American Marriage and Family Law as the arising of the divorce cases concerning American. During my practice in dealing with foreign marriage cases, I have get knowledge of some American marriage and Family Law. If I compare the American with Chinese Marriage Law and show the difference to the readers, it will help them to control the difference between these two laws so that I can offer better service to the client by using such intellectual when doing cases.
The same and difference of marriage conclusion essential
A The terms of American Marriage Law
1 、 the requirements of marriage contract. Many states' American marriage Law set out when registering a marriage in American, both parties shall be over 18 years old; those who have reached 16 but not the age of 18 shall get the admission of their parents or judge.
2 、 the requirement of registration. In American, The marriage shall consist of registration and holding a marriage ceremony. “the uniform Marriage and Divorce Act” Article 201 prescribes, the marriage between a man and a women will be effective after being approved, registered and held the marriage ceremony. Many States require those who want to get marry holding the marriage ceremony in front of pastor, judge or government officials. In Article 206 of “ the uniform Marriage and Divorce Act ”， the court and the authorized government officials can host the marriage ceremony and it also can be hold as a religion ceremony.
Differ from Chinese law, the marriage certifications in different states have different useful-life which ranks from 30 days to 60 days. Both parties should hold the marriage ceremony during this period otherwise they will register the marriage again. There are 3 to 5 days before the court or government issues the certification after both parties application.
B. the stated term of Chinese law
1. The requirement of marriage contract
The Chinese Marriage Law regulates that no marriage may be contracted before the man has reached 22 years of age and the woman 20 years of age. This is later than American. In China , the Marriage system based on the free choice of partners and the legality marriage is not be intervened. No marriage may be contracted under any of the following circumstances:(1) if the man and the woman are lineal relatives by blood, or collateral relatives by blood up to the third degree of kinship; and (2) if the man or the woman is suffering from any disease, which is regarded by medical science as rendering a person unfit for marriage.
2. The Requirements of Registration. The male and female must go to the registry office by themselves or they are not legality spouse. After they registered, they are spouse and no announcement period is required.
The same and the difference of void marriage
A. The void marriage in American Marriage Law
The void marriage in the American Marriage Law system means the parties in the marriage are lack of the legal ability or will to marry, or other serious marriage obstacle. The main kinds of void marriage are as follows:
1. Both parties in the marriage are forbidden to marry by law. According to many states' laws, no man can marry the woman who is lineal relative by blood, or collateral relatives by blood up to a scope with him, otherwise their marriage is void. For example, it prescribes in Massachusetts law that no man can marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grand-stepmother, grandson's wife, mother-in-law, grandma-in-law, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister, mother's sister.
2. Either party is not reach the legally marriageable age. It may cause the marriage to be void if one party is not reach 18 years old when holding the marriage ceremony. Those who do not reach the legally marriageable age shall get the approval of their parents or judge before marriage registration.
3. Bigamy. Many countries around the world don't accept bigamy except the Africa and one or two Muslim countries.
4. Falsity. Falsity marriage means the marriage is based on a certain intention or aim. This situation mostly happens in the immigrant areas. Many citizens outside America emigrate to USA by marry an American citizen. To solve this problem, the American Immigration Law rules that those outside America persons who want to get the green card basing on the marriage shall have to stay in America for more than two years.
B. the void marriage in Chinese Marriage Law
According to article 10 in Chinese Marriage Law, Marriage shall be invalid under any of the following circumstances:
(1) if one party commits bigamy;
(2) if the man and the woman are relatives by blood up to the third degree of kinship;
(3) if, before marriage, one party is suffering from a disease which is regarded by medical science as rendering a person unfit for marriage and, after marriage, a cure is not effected; and
(4) if the legally marriageable age is not attained.
The same and the difference in the marriage dissolution
A. the marriage dissolution in America
1. Mental and Physical distemperedness. Mental distemperedness means one party can't understand the character, right and the obligation of marriage with his or her mind when he or she marries. Physical disttemperedness mainly means one party is sexual disturbance and the other party doesn't know this situation when marry him.
2. Marriage under coercion. One party agree to marry the other because the coercion. One party compel the other party to marry him by using force measures or both parties get married under the third party's threat or enticement.
B. the marriage dissolution in China
According to Article 11 of the Chinese Marriage Law, in the case of a marriage made under coercion, the coerced party may make a request to the marriage registration office or the people s court for the dissolution of the marriage contract. Such a request shall be made within one year as of the marriage registration date. The party concerned whose personal freedom is curbed illegitimately shall make a request for dissolution of the marriage contract within one year as of the date on which his or her personal freedom is restored. The party can only request the dissolution of the marriage under coercion. One party is sex incapacity or refuse sex life do not become to be the legal excuse to the dissolution of the marriage though such matters can be the reference gist to cognize mutual affection no long exists.
The difference and the same in the divorce condition and procedure
A. the divorce condition and procedure in America
In America, the court is the only place to deal with the divorce. People can't get the divorce registration in the marriage register office which differs from China . The court shall make the judgment although both parties desire divorce. The reasons for divorce are in fault or no fault. All the states in American are using the principle of no fault divorce and the divorce will be granted because mutual affection no long exists, which is the same as China .
1 ． Court of jurisdiction. The divorce case shall be heard in one party's place. One party has the right to send the divorce to the court after living in one state for a certain time in many states. Different state has different requirement of the certain time and the longest is one year, such as Washington , New Jersey , New York ; the shortest is no time, such as South Dakota . Most states require the person living in this state for 6 months, such as Mississippi , Hawaii ; Some shorter requirements range from 60 days to 6 weeks, 90 days, such as Idaho is 6 weeks and Illinois is 90 days.
2. The procedure of divorce. The plaintiff of the divorce case shall pay the litigation fee. In the procedure of the divorce litigation, one party can ask the court to issue an injunction which can forbid either party transferring, mortgaging, concealing the couple's joint property and annoying, harming the other party or children. The court can ask one party move out from the place they live in together temporarily if danger exists. Some states require mediation in the divorce case. It differs from the Chinese court that the American Courts only use the mediation in the divorce case without any fault. The mediation will be used when dealing with the custody and visit of the children.
3. Reason for the fault. The faults mainly consist of adultery, abuse and abandon. Adultery is the familiar fault reason. Just the same as the adjudgement practice in China , it is also very difficult to get the evidence of adultery in America . Some judge in America will adopt the putative method to determine whether one party has sex behavior outside marriage. If there are evidences show one party in the marriage checks in a room with others or stays with others in one room, the judge may make a consequence by a general person's thinking except the person under suspicion can give the counterevidence.
4. Separation system. There are separation regulations in many states of America . After the couple doesn't stay with each other for a certain time because they have the desire to divorce, they can divorce. Some states require the separate time being 6 months and some states require 5 years. Most states require 1 to 3 years. According to the Uniform Marriage and Divorce Act, either party has the right to apply for divorce to the court after separating 180 days.
B. the divorce condition and procedure in China
There are two ways to release the marriage relationship in China : divorce register and litigation. If both parties desire divorce, they can apply to the marriage registration office in one's Hukou location for get it and they don't need to go to the court. The second way can be used at the time when one party wants to divorce but the other one disagrees. When the court finds either party has the circumstances in article 46, the Marriage Law of China, the divorce shall be granted if mediation fails:
(1)bigamy or, cohabitation of a married person with any third party;
(2)domestic violence or, maltreatment and desertion of one family member by another;
(3)bad habits of gamble or drug addiction which remain incorrigible despite repeated admonition;
(4)separation caused by incompatibility, which lasts two full years; and
(5)any other circumstances causing alienation of mutual affection.
Divorce shall be granted if one party is declared to be missing and the other party thereby files an action for divorce.
The Chinese courts usually refuse making the divorce judgment at the first time of hearing the divorce case except the instance above or the parties have the evidence to show their mutual affection no long exists. If the parties sue to the court again after 6 months from the date he/she got the judgment, there is more possibility for the court to make a divorce judgment. Thus it can be seen the procedure of the divorce in China is more simple, principle and agility when compared with the marriage and family law of America .
The disposition of the property in the joint possession
A. the principle of the disposition of the property in divorce of America
1 ． Implement the property agreement. All the states in America allow both parties in the marriage make an agreement on the disposition of the property. This agreement includes the allocation of the property, the burden of the debts and the creditor's rights. The divorce agreement will be effective after the court approves it.
2. The scope and the allocation principle of the joint property. According to the Uniform Marriage Property Act in 1983, the property acquired by husband and wife during the period in which they are under contract of marriage shall be joint property, both parties have the benefit to half part of the property describing above. The following asserts shall be the separate possession:
1) One party gained by presentation or was given especially when the third person died.
2) Gained by exchange with one party's personal property
3) Confirmed by judgment, assert agreement or other written agreement
4) Unearned increment of personal property
5) Payment for the damage of personal property
6) Payment for the damage of personal health
B. the principle of the disposition of the property in divorce of China
According to article 39 of the Marriage Law and the related justice explanations of
the Supreme Court, the joint property gained by both parties under the marriage shall be divided into two parts and each party gains one part, which is the same as America. The property gained by bequest or presentation shall be the joint property except it is especially given to one party by will or presentation.
The maintenance to the spouse after divorce
A. The maintenance provisions after divorce in America
The maintenance to the spouse means one party gives help and money to the other party after divorce and the division of the joint property. It always paid by money or property. It can be paid by either the man to the woman or the woman to the man.
1. The condition to get the maintenance after divorce
In the divorce, judicial separation or maintenance fee litigation, according to article 308 of the Uniform Marriage and Divorce Act, if one party cannot maintain his/her reasonable living needs by his/her property and he/she can't work because of bringing up children or can't meet the requirements although work after divorce, the other party with payment ability shall give maintenance to this party. The judge will consider the following factors:
1) The property status of the one is maintained;
2) The economy income ability status of the one is maintained;
3) The education or training needed for the one is maintained to find a suitable occupation.
4) The living level of the marriage;
5) The length of the marriage;
6) The age, health and mental situation of the one is maintained
7) The ability of the one offering the maintenance
2. The amount of the maintenance fee.
This amount will be considered by the different factors. Generally speaking, this amount will depend on the economic needing of the party being maintained and whether he/she has a work, the property this party holds and the economic situation of the party offering the maintenance, The living level of the marriage and etc. Some states give a lowest line to the maintenance fee, such as in Texas, the maintenance fee shall be no less than $2500 per month or the 30% of the (&)income of the obligation party. In many states' cases, the standard is confirmed by the certain circumstances.
B. The maintenance provisions after divorce in China
According to the Chinese Marriage Law, there are two ways to make the payment to the other party: one is economic compensation, in article 40, “According to a couple s written agreement, the items of property acquired during their marriage are in the separate possession. In this connection, if one party performs more duties in rearing their children, looking after their elders and assisting the other party in work, he or she shall have the right at the time of divorce to request compensation from the other party who shall make the compensation.” The other is economic help, in article 42 of the Marriage Law, it says “If, at the time of divorce, one party has difficulties supporting himself or herself, the other party shall render appropriate help from her or his personal property such as a dwelling house. Specific arrangements shall be made between both parties through consultation. If they fail to reach an agreement, the people s court shall make a judgment.” The meaning of the economic help differs obviously from maintenance. It is obvious that there is no regulation on the maintenance to the spouse after divorce after divorce. This disadvantage will cause the puny party especially the woman to be unfavorable.
Maintenance payment to the children after divorce
A. regulations on the maintenance payment to the children in America
1. Both parties have no right to make agreement on the payment of maintenance fee to the children.
In China , the court doesn't oppose the person under the marriage make the agreement on the amount of the maintenance fee to the children. In America , the law prohibits such behavior or the agreement will be invalidation because it infringes the children's rights. According to the Uniform Marriage and Divorce Act, such fee is determined by the following aspects:
1) The economic source of the children;
2) The economic situation of the parents;
3) The living level of the children before divorce;
4) The bring up and education fee for the children;
5) The economic capacity of the parent without custody right
2. Certain proportion between maintenance fee and income
1 ） percentage
In such mode, the maintenance fee is confirmed and stable and it doesn't depend on the income of the obligation party
2) Income shares
The maintenance fee shall be decided by the total of the parents income and it also determines the amount each party should pay.
B. regulations on the maintenance payment to the children in China
It prescribes that the relationship between parents and children shall not come to and end with the parents' divorce in article 36 of the Chinese Marriage law and furthermore, parents shall take the related amends responsibility to the civil obligation of the children. The bringing up fee of the children shall be determined by the local living level and it shall be 20-30 percentage of the parents' income. The Chinese court usually doesn't write the amount of the bring-up fee of the party fostering the children directly in the judgment and it always appears to be the party who doesn't foster the children.
贾明军律师 何丽莹律师
Lawyer Jia Mingjun & He Liying |
