Civil and Commercial Perspective... Can children claim maintenance during marriage?
Published:
2023-02-22
In judicial practice, the general cause of alimony disputes is that one party does not pay alimony after divorce, or because the alimony has been unchanged, it is not suitable for the situation, one party requests to increase or reduce the child support. But in real life, for various reasons, many people will choose not to divorce but to separate, and at the same time, the party who does not raise the child will not pay the child support. In the face of this problem, how can children protect their legitimate rights and interests and get the maintenance they deserve? The author intends to start from a real case to explore whether the child can claim the maintenance fee if the husband and wife do not divorce.
Brief of the case
Zhang and Zhao registered their marriage on February 14, 2015 and gave birth to a son on March 12, 2016, named Zhang. In 2020, there was a quarrel over family chores. The husband and wife chose to separate due to the deterioration of the relationship, but neither party had the idea of dissolving the marriage. Zhang actually raised Zhang's letter, and Zhao didn't care about Zhang's letter. Zhang's consultation: Can Zhang's letter request Zhao to pay alimony?
point of view analysis
One view is that:The income earned during the existence of the relationship is the joint property of the husband and wife, and one party raises the children with his own wage income, and the wage income belongs to the joint property of the husband and wife, thus it can be concluded that the other party has also fulfilled the duty of maintenance, and the children have no reason to sue the other party for maintenance.
According to another view:During the period of separation, the property of the husband and wife is actually divided, and the husband and wife control and control the use of the part of the property in their possession, and their property status is similar to that of the husband and wife's separate property system or their property relationship after divorce.
The author thinks:Because parents' obligation to raise minor children is unconditional and compulsory, the dissolution of marriage is not a prerequisite for parents to pay child support. Therefore, children who are minors or who are unable to live independently have the right to request maintenance payments when one of the parents refuses to perform their maintenance obligations. If the law is understood mechanically, it is bound to cause some parties to evade their legal maintenance obligations. Therefore, we should start from the principle of maximizing the interests of minor children and support children to ask the other party to pay maintenance.
legal analysis
Raising minor children is a legal obligation of parents. The law does not stipulate that divorce is a prerequisite for claiming child support. Although the husband and wife have not divorced, the children can also recover the support. If the two parties eventually divorce, they can either ask the court to deal with the issue of child support after the divorce, or ask the other party to pay the child support that should be paid during the marriage.
If the husband and wife adopt a separate property system during the existence of the marriage relationship, because of the personal nature of the property, the husband and wife must use their respective property to fulfill their obligations to raise their children. However, between husband and wife who have not agreed to implement the separate property system, the income of both parties during the existence of the marriage relationship is generally the joint property of the husband and wife. One party's raising children with his own income can be regarded as the joint maintenance of the other party. This can be recognized under normal circumstances. However, for couples who are separated due to emotional discord, the party who does not live with the child shall pay child support because of their respective control and control over the use of the part of the property they hold.
In summary, during the marriage, if the husband and wife have a separate property system, or if the separation is essentially a separate property system, their children may, in accordance with the law, receive alimony paid by the father or mother who does not live together.
Legal basis
1. The first paragraph of Article 1067 of the the People's Republic of China Civil Code stipulates: "If parents fail to perform their duty of raising, minor children or adult children who cannot live independently have the right to require their parents to pay alimony."
2. Article 43 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that during the existence of the marriage relationship, both or one of the parents refuses to perform the obligation to raise children, minor children or those who cannot live independently If an adult child requests payment of support, the people's court shall support it.
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