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Realization of the Right to Economic Assistance of Women with Disabilities in Divorce from the Perspective of the Civil Code
March 02,2021   By:CSHRS
Realization of the Right to Economic Assistance of Women with Disabilities in Divorce from the Perspective of the Civil Code
 
XIA Yinlan* & XIA Jianghao**
 
Abstract: Protecting the equal human rights of persons with disabilities is an important part of human rights protection in China. The Marriage Law Amendment in 2001 focused on the economic assistance system for divorce relief for a party unable maintain the local basic standard of living. The Civil Code has adjusted and expanded the system, stipulating that one party can ask for financial help from the other party if the party can’t maintain a reasonable living after divorce. To a certain extent, this economic assistance should include the assistance to the party whose living standard has decreased significantly after divorce and the party who has made more sacrifices and contribution to the marriage during the marriage. Although the economic assistance system for divorce stipulated in the Civil Code does not specifically address unequal treatment or discrimination against women with disabilities, since women with disabilities are more vulnerable after divorce, they are more likely to put forward economic assistance claims after a divorce, be more dependent on others physically and psychologically, and find it more difficult to obtain employment. Social security for women with disabilities is still insufficient and compared with other subjects, women with disabilities are likely to be in an unequal position in the realization of their right to economic assistance in divorce. Therefore, it is necessary to put forward reasonable legal interpretations and application suggestions for the relevant provisions in the Civil Code, so as to fully realize the economic assistance rights of women with disabilities in divorce, and reflect the care and protection of the human rights of women with disabilities in the Civil Code.
 
Keywords: women with disabilities    economic assistance for divorce    Civil Code    substantive equality    human rights protection
 
The Civil Code of the People’s Republic of China (hereinafter referred to as the “Civil Code”) was officially adopted on May 28, 2020. The Civil Code, known as the “guarantee of people’s rights,” is of great significance to improving China’s system of rights protection and relief and safeguarding the legitimate rights and interests of the people. The articles on “Marriage and Family” in Book 5 of  Civil Code are the basic criteria for regulating and adjusting marital and family relations. Since they are related to the protection and realization of people’s rights within a marriage and within the family, there are of great concern and have been widely discussed by society. The Book on Marriage and Family enshrines  the ethical attribute of maintaining marriage in terms of the value of legislation, further strengthens the protection of the interests of the weak, and realizes the essential justice of the law.  In the chapter of “General Rules,” the Book on Marriage and Family makes clear the basic principles of equality between men and women and the protection of the legitimate rights and interests of women, minors, the elderly and the disabled.  Thus, equality between men and women and the protection of the legitimate rights and interests of disadvantaged groups have become the value orientation and basic spirit of the specific rules of the Book on Marriage and Family. 
 
What deserves special attention is Paragraph 3 of Article 1041 of the Civil Code, on the basis of the provision of “the lawful rights and interests of women, children and old people shall be protected” in Paragraph 2 of Article 2 of the current Marriage Law of the PRC, especially adds “the disabled” in the list of protection. This fully shows the special attention paid to the rights and interests of the disabled. According to the World Health Survey, about 785 million (15.6%) of people aged 15 and over live with disabilities, while the Global Burden of Disease estimates that about 975 million (19.4%) live with disabilities.  And there are 85 million disabled people in China alone.  Persons with disabilities are mentally, physically or structurally incapable of engaging in certain activities in a normal manner, in whole or in part, due to the lack of a certain type of organization or function.  Compared with ordinary people, disabled people may have greater limitations and vulnerabilities in social and family life due to their physical or psychological abnormality or unfitness. According to the second national sample survey of disabled people, there are 40.19 million females, accounting for 48.45% of the population of disabled people in China.  Under the influence of traditional gender bias, women’s economic and social status and their unique physical and psychological characteristics, women are often at a disadvantage compared with men.  Women with disabilities may be more vulnerable to injury or unequal treatment because of their dual identity as “disabled“ and “female,” so special care and protection for women with disabilities is highly necessary.
 
Article 4 of the Civil Code provides that “All civil subjects are equal as regards their legal status in civil activities.” Paragraph 1, Article 3 of the Law on the Protection of Persons with Disabilities provides that “persons with disabilities shall enjoy equal rights with other citizens in political, economic, cultural and social fields, in family life and other aspects.” Paragraph 1, Article 2 of the Law on the Protection of Rights and Interests of Women provides that “Women shall enjoy equal rights with men in all aspects of political, economic, cultural, social and family life.” Although legal norms emphasize the equal protection of parties to civil legal relations, women with disabilities may be in a substantially unequal status compared with other parties due to some inherent risks and characteristics. Therefore, the review of legal norms should not only stay at the surface. It is more important to investigate whether legal norms can realize substantial equality and protect the legitimate rights and interests of civil subjects in practice. Therefore, this paper will focus on the protection of women with disabilities, and study whether the economic assistance system for divorce in the Civil Code can provide equal protection for women with disabilities after divorce. Based on this, this paper puts forward reasonable legal interpretation and application suggestions to realize the result of the equality of economic assistance system for divorce.
 
I. The Normative Content of the Economic Assistance System for Divorce
 
A. The Marriage Law focuses on “providing assistance to those who cannot maintain a basic living standard”
 
China’s Marriage Law of 1950 set up the economic assistance system for divorce based on the fact that before the foundation of the PRC women did not have independent personality and properties, and could not maintain their basic life after divorce, aiming to guarantee the realization of the right to divorce freedom by helping the poorer party to maintain a basic life.  A new Marriage Law was introduced in 1980, and this was amended in 2001. It modified and improved the economic assistance system for divorce on the basis of the provisions of the 1950 version. 
 
Article 42 of the current Marriage Law amended in 2001 has this provision on the economic assistance system for divorce — “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 agreement, the People’s Court shall make a judgment.” There are mainly two possible interpretations for the normative content of economic assistance system for divorce in the Marriage Law. First, economic assistance is the continuation and extension of the legal support obligation between husband and wife after divorce. The establishment of a marriage relationship means that the husband and wife will combine their fates based on their mutual trust and dependence on each other. The dissolution of the marriage relationship does not eliminate their mutual support obligations. Second, economic assistance is a kind of social moral responsibility derived from the dissolution of marriage. It is a relief measure to provide economic security to the party in difficulty, which can reduce the welfare assistance and care provided by the State and society to the party in difficulty. There is a lack of clear definition in the legislative interpretation of the Legislative Affairs Commission of the National People’s Congress Standing Committee. It seems that Article 42 has both functions but is obviously more about the latter.  Mainstream academic opinion also agrees with the latter.  The typical view is that appropriate financial assistance to the party with difficulty at the time of divorce is not a continuation or extension of the legal obligations of support between the husband and wife, since the obligations of support between the husband and wife terminate with the termination of the marriage. Economic assistance to the party with difficulty is a social moral responsibility derived based on the dissolution of the marriage. It is the financial security provided by the Marriage Law for the divorced party who has difficulties in living. The legislation provides for financial assistance to those in need because, first, China’s social security system is not perfect yet. And second, the principle of freedom of marriage shall be implemented. Because offering financial help to a spouse with difficulties can help ease his/her worries about divorce. 
 
Paragraph 1, Article 27 of the Judicial Interpretation of The Marriage Law (I), issued by the Supreme People’s Court, defines “living with difficulties” in Article 42 of the Marriage Law as “the local basic living standard cannot be maintained by relying on personal property and the property acquired at the time of divorce.” According to the interpretation of the Supreme People’s Court, the reason for adopting this “absolute difficulty” standard is that economic assistance for divorce is a relief measure for those who are truly, really struggling. The former spouse is not obliged to provide economic assistance to the needy after divorce, and the difficulties in life shall be solved by social relief and security mechanisms. However, when the social security mechanism is not perfect, the former spouse shall bear some responsibilities. The person receiving financial assistance must therefore meet the criteria for not being able to maintain the most basic normal life on personal property and property acquired at the time of divorce. 
 
It can be seen from the historical evolution of the economic assistance system for divorce and relevant legislative and judicial interpretations that the Marriage Law lays more stress on the system as a duty to help the weak and poor, or the party in difficulty. This kind of responsibility is more of a social moral responsibility, which is to provide relief to the person who is unable to maintain a basic standard of living after divorce. It is of the nature of helping and caring for those who have difficulties in life, and at the same time has the function of guaranteeing freedom of divorce.
 
B. The Civil Code develops with the times
 
Article 1090 of the Civil Code provides that “If, at the time of divorce, one party has difficulty in supporting himself or herself, the other party who can afford it shall render appropriate assistance. Specific arrangements shall be made by both parties through consultation. If they fail to reach agreement, the People’s Court shall make a judgment.” Compared with Article 42 of the Marriage Law, Article 1090 of the Civil Code makes adjustments in two aspects. First, it clearly stipulates that the party providing financial assistance needs to be able to afford it, thus making the logical expression and application of legal provisions more rigorous. Second, the deletion of the illustrative provisions of “such as his or her residential house” expands the scope of interpretation of economic assistance, which is conducive to enriching the content and form of economic assistance. From the perspective of system understanding, the provision of residence rights added in the book on property rights of the Civil Code can also be used as a measure of economic assistance for divorce by means of mediation agreement.
 
Although Article 1090 of the Civil Code does not change the normative content of the economic assistance system for divorce according to the meaning of content, the corresponding adjustment can be analyzed from the legislative interpretation of the Legislative Committee of the National People’s Congress. According to the interpretation of Article 1090 of the Civil Code by the Legislative Affairs Commission of the National People’s Congress Standing Committee, the definition of “living with difficulty” has changed, from the original “cannot maintain the local basic living standard” to “when one party does not receive enough property after divorce to meet his or her reasonable living needs, or is unable to meet his or her living needs through proper employment.”  This change relaxes the standards of living with difficulty and to some extent adjusts the normative content of the economic assistance system for divorce. The economic assistance for divorce in the Civil Code should not only be used to relieve the pressure on social welfare security mechanism. But rather providing relief and help to those who cannot maintain a basic standard of living is “to fulfill one party's interest in expecting the marriage to be kept intact.”  On the one hand, when a man and a woman enter into a marriage, the law requires that both parties establish a relationship of mutual trust and mutual support. It regards the two parties involved as believing and expecting that the marriage will last for a long time, and their investment of a great deal of emotion and energy in maintaining the relationship. On the other hand, one party may make sacrifices for the benefit of the marriage as a whole, such as giving up the opportunity of self-development for the sake of the family, or even suffer some harm. Such investment in the family as a whole is often difficult to receive immediate returns. Therefore, it is more appropriate to change “local basic living standard” to “reasonable living needs” in Article 1090 of the Civil Code.
 
First of all, the “local basic living standard” stipulated in the Marriage Law is a relatively objective standard. Each region of China has specific provisions on the basic living standard in local areas. The court should judge whether to give economic assistance to one party in a divorce according to the standards of each region.  “Reasonable living needs” is a relatively subjective standard, in which the court will consider the specific situation of each family and both parties, so as to make the payment of economic assistance in divorce more practical and truly meet the needs of the party in difficulty. Second, the expression of “cannot maintain the local basic living standard” stipulated in the Marriage Law is the “absolute difficulty“ standard, the function of which is to provide welfare relief and help to the party who has real difficulties in life and even cannot maintain the local basic living standard. But “reasonable living needs” clearly has more room for interpretation, and can include “relative difficulty” standards. That is, if a person's standard of living is significantly lower after divorce than during marriage, he or she can ask for some financial help from the party who can afford it, and such help does not necessarily exceed “reasonable” needs, thus giving judges greater discretion. The judge can make a judgment according to the reality of the case, so as to realize the fairness of the result to both parties.
 
To sum up, the economic assistance system for divorce stipulated in Article 1090 of the Civil Code has been adjusted and expanded compared with the provisions of the Marriage Law and its judicial interpretations. It is no longer limited to the assistance to the person who cannot maintain the local basic living standard after divorce by relying on personal property and property acquired at the time of divorce, but to a certain extent includes assistance to the person whose living standard has declined significantly after divorce and compensation to the person who has made more sacrifices and contributions to the marriage. Thus, on the one hand, it is conducive to protecting the lawful rights and interests of the poorer party more strictly, so that they will not fall into economic difficulties due to divorce, and that the substantive equality of the law can be realized. On the other hand, it also helps to reduce the worries of the parties to a marriage who make sacrifices for and greater contributions to the marriage, encouraging the parties to invest in marriage and family, and realize the legislative value of protecting marriage. 
 
II. Reasons why Women with Disabilities Should Receive Economic Assistance for Divorce
 
Having ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1980, China was one of the first states parties to the Convention. Paragraph 1, Article 16 of the CEDAW provides that “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: ...(c) The same rights and responsibilities during marriage and at its dissolution...(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.” The Convention on the Rights of Persons with Disabilities (CRPD) is one of the nine core international human rights conventions of the United Nations and an important international human rights convention that China has ratified and implemented.  Paragraph 1, Article 23 of the Convention provides that “States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others... ” China’s Constitution stipulates the basic principles of equality and protection of human rights,  which have also been fully implemented in the Civil Code.
 
As far as the economic assistance system for divorce is concerned, the provisions of Article 1090 of the Civil Code do not in themselves constitute unequal treatment or discrimination against women with disabilities. However, due to the physical or psychological characteristics, working ability, employment, living conditions, social security and other factors, women with disabilities may not be able to equally and fully realize the right to economic assistance for divorce as other parties do. It also affects, to some extent, the realization of the basic requirements of equal protection of disadvantaged groups in a series of international treaties and legal norms, such as the CEDAW, the CRPD, and the Constitution. The following part offers further analysis of the difficulties that women with disabilities may encounter in applying the economic assistance system for divorce, discusses the reasons for strengthening the protection of economic assistance rights of women with disabilities in divorce, and stresses the necessity of paying attention to the rights and interests of women with disabilities in economic assistance for divorce.
 
A. Women with disabilities are weaker after divorce and more likely to claim economic assistance for divorce
 
According to the Second National Sample Survey of Persons with Disabilities’ Main Data Communique, there are 70.5 million households with persons with disabilities, accounting for 17.80% of the total number of households. Women make up 48.45% of the disabled population. Among the disabled population aged 15 and above, 21.16 million, or 26.76%, were divorced or widowed.  Regarding the protection of women and the disabled, although in recent years, China's theoretical research, institutional construction and implementation of measures have made considerable progress in this regard, deficiencies still exist. Studies have shown that marriages in which the wife is disabled are more likely to break down than those in which the husband is disabled.  Women are more vulnerable when they are exposed to risk or disease resulting in disability, and their living conditions and circumstances may deteriorate in the event of divorce and loss of family support. Especially for women who are disabled after marriage, their marital stability is more likely to be affected, and they are more likely to fall into financial difficulties after divorce.
 
In reality, most of the persons requesting economic assistance in a divorce are women. A survey on the living conditions of urban and rural divorced women in Xi'an shows that 71.9% of divorced women think their living conditions have declined compared with before the divorce. 56.2% of divorced women felt that their post-divorce living conditions were merely subsistence.  Of the 76 cases about economic assistance for divorce concluded by the Beijing No. 2 Intermediate People’s Court between May 2001 and December 2002, 90.8% of persons asking for economic assistance were women. Of the 24 divorce cases concluded by Harbin Intermediate People's Court in 2002, 91% of those asking for economic assistance were women. Similarly, among the cases related to economic assistance for divorce selected by Xi'an Intermediate People’s Court from 2003 to 2004, all the parties who claimed economic assistance were women. 
 
For many women, especially those with disabilities, divorce implies downward social and economic mobility. Article 1087 of the Civil Code, concerning the division of property in divorce, does not provide special care for the disabled party.  According to the interpretation of the legal provisions, the disability factor of the parties in the marriage is not considered as a factor for the division of the joint property of the couple. Thus, if the economic conditions of women with disabilities severely decline after divorce, the economic assistance for divorce under Article 1090 of the Civil Code is the legal system to which women with disabilities are more likely to resort to.
 
B. Disabled women are more physically and mentally dependent on others
 
Generally speaking, persons with disabilities have a relatively low standard of living due to physical or psychological defects. They need more or less care in their daily lives and are of course more physically dependent on others. According to a survey of 520 disabled people in Qinghai province, most of them need assistance or are completely dependent on others for their daily lives. Married disabled people generally saw their standard of living improved after marriage, while divorced disabled people were more likely to see their standard of living lowered after the divorce.  A survey of 855 disabled people in Xiangtan, Hunan province, shows that the decline of working and living ability caused by disability even affects the disabled people’s understanding of marriage and marital status.  Another survey of 226 disabled people in Huanggang City, Hubei province, showed that 59.63% of the married disabled people in the survey sample believed that personal physical reasons were the biggest difficulties in life.  On the one hand, women with disabilities’ ability to work and take care of themselves is limited to some extent, and they are more dependent on others. As a result of divorce, they lose the daily care from their spouses. Compared with the marriage period, women with disabilities are likely to have a significantly lower standard of living. On the other hand, the relatively weak ability to work also limits the earning ability and career development of women with disabilities. As a result, the financial situation of a disabled woman after divorce is bound to be greatly reduced compared with the marriage period when support was provided by the spouse’s income. The fact that women with disabilities work while taking care of themselves can have an impact on their living standards, even if they have a relatively low level of disability or have a working environment that is friendly.
 
In addition, women’s unique psychological characteristics will also have an impact on the life of women with disabilities after divorce. Marriage in some ways, especially emotionally, involves shared vulnerability and dependency.  Compared with husbands, due to their own psychological characteristics and the role given by society, wives tend to invest more energy and emotion in the maintenance of their marriage and family, and show stronger psychological dependence on the harmony and intimacy of a marriage relationship.  Some women with disabilities may give up their outside jobs to devote themselves to their family, to handle the daily affairs of the family and to do the housework within their capabilities. Therefore, they have less incentive to learn new skills and lose out on good career development opportunities, while their investment in their families rarely results in immediate returns. As a result, women with disabilities are forced to return to social work to support themselves after divorce, often worse off than they were when they got married and worse off than their divorced husbands. 
 
C. Disabled women find it more difficult to be employed
 
Unlike people who are simply poor, people with disabilities may have physical or mental disabilities in addition to economic hardship and threats to their basic survival. Their access to financial gains is less than that of the able-bodied poor.  According to the World Health Survey, the unemployment rate for persons with disabilities is higher. And when employed, their wages are often low. Women with disabilities (20%) have lower employment rates than non-women with disabilities (30%).  The same is true in China, where the employment rate of women is generally lower than that of men. In 2018, female workers accounted for 43.7% of the total workforce.  Disabled women are at an even greater disadvantage in the job market. According to the data of The China Household Income Survey Project released by the China Institute of Income Distribution of Beijing Normal University, the employment rate of the disabled (72.98%) is generally lower than that of the non-disabled (84.49%). Women with disabilities are among the most disadvantaged groups in the job market. The employment rate of women with disabilities is only 66.18%, lower than that of male persons with disabilities (77.74%). 
 
It is very difficult for women with disabilities to realize their right to work as well as the able-bodied, and they are often excluded by employers and discriminated against in the job market. Some women with disabilities had permanent work units before becoming disabled. If the employer terminates the labor contract with a woman after she becomes disabled, or if the woman did not enter these units before she got disabled, she may encounter greater restrictions in seeking employment in these units.  Due to the implementation of the compulsory employment policy (decentralized employment in proportion), some employers would rather pay a “fine” (employment security fund for persons with disabilities) than offer jobs for persons with disabilities, resulting in an embarrassing situation with a sharp increase in the payment of employment security funds for the disabled, while the total employment of the disabled shows a downward trend. 
 
In reality, the disadvantaged position of women with disabilities in the job market is an important issue that cannot be avoided. They may face a series of difficulties, such as being unable to obtain appropriate jobs or even a job, being promoted more slowly, and being less likely to obtain senior positions. The barriers to employment make it impossible for women with disabilities to obtain reasonable financial security after a divorce, and their living standards are also sharply lowered, which is undoubtedly a heavy blow to women with disabilities. Especially for those women who are disabled after marriage, their disability is likely to be caused by taking care of their family  or through their job. This leads to the situation in which women with disabilities’ contributions to their families during their marriages are not only not rewarded, but become an obstacle for them to support themselves after the marriage ends, which is very unfair to the protection of the legitimate rights and interests of women with disabilities.
 
D. Social security for women with disabilities is still inadequate
 
In recent years, China’s social security system for the disabled has been continuously improved. A welfare system for the disabled has been established, and the living subsidies and nursing subsidies for the severely disabled have been set up.  However, in general, there are still some problems in the construction of the social security and service system for the disabled. In particular, the coverage of the social security system for the disabled is not extensive enough, and there is still a gap between the level of social security and the needs of the disabled. There is a large gap in the social security system for the disabled in urban and rural areas, and the social security for the disabled in rural areas is very limited.  According to China's Second National Sample Survey of Persons with Disabilities' Main Data Communique, 13.28% of urban disabled people enjoy the minimum living allowance for local residents, and 9.75% have received regular or irregular relief. In rural areas, 5.12% of the disabled enjoy the minimum living allowance for local residents, and 11.68% receive regular or irregular relief.  The questionnaire survey on the status of women with disabilities in Heilongjiang province shows that more than 80% of women with disabilities think that the basic living security and relief services are most needed by them, and the proportion of women with disabilities in rural areas is even close to 95%. In terms of specific needs, 49.4% of women with disabilities regard poverty relief and support as their first need, 32.8% of them regard medical services and relief as their first need, and 8.9% regard housing as their first need. The above three needs rank top three. 
 
In reality, because the conditions for women with disabilities to apply for the minimum living allowance are relatively strict, few women with disabilities can successfully gain an adequate living allowance, and most women with disabilities have not received formal social support. In other cases, women with disabilities are in the state of “unemployment” or “hidden unemployment” as a result of the termination of labor relations by their former employer, or  suspension of employment, or waiting for employment. But “hidden unemployment” prevents them from receiving unemployment insurance. Some enterprises fail to pay unemployment insurance compensation, which causes problems for women with disabilities in applying for unemployment insurance compensation. 
 
Poverty has long been the biggest plight facing disabled people in China.  The inadequacy of social security may prevent women with disabilities from receiving the help and relief they need in times of life difficulties or financial hardship, which may affect the maintenance of their basic living standards. In addition, besides ordinary necessities of life, persons with disabilities may have to pay additional costs for personal support, medical care or assistive devices, leading to further impoverishment at similar economic levels. 
 
E. The remarry rate of women with disabilities is relatively low
 
Research has shown that divorced women are less popular in the marriage market than divorced men, which means that women lose more value in the marriage market. The reasons are mainly as follows. First, men have a higher mortality rate than women at any age. Second, divorced men tend to remarry at a faster rate than divorced women at any age except 14 to 24. Third, divorced women with children remarry at a lower rate than those without children. Fourth, women tend to marry older men, and the age gap between married men and women increases with age.  In addition, the impoverishment of divorced women  and China’s traditional view of marriage and love will also affect the popularity of women in the remarrying market. In Beijing, for example, divorced men were 2.4 times more likely to remarry than divorced women, according to marriage registration information from the city’s marriage registration database from January 1, 2004 to December 31, 2011. 
 
Women with disabilities are even less likely to remarry. Some women are unable to carry out normal social and family activities because of serious physical disabilities, which makes it difficult for them to remarry. In addition, some women with disabilities may feel low self-esteem due to their physical or psychological defects, and, together with the failure of their previous marriage, these may lead them to have a negative attitude towards remarriage. Take the “National Survey of Individuals in 100 Villages” conducted by the Population and Development Institute of Xi'an Jiaotong University in 2010 for example, more than half of unmarried men in rural areas totally would not accept marrying a disabled woman, and only 25.4% of them would be willing to do so. 
 
Difficulties in remarrying may perpetuate the economic and living difficulties of women with disabilities. Disabled women who do not remarry are denied the love and care of their spouse and family through their next marriage, as well as the improvement of their living and economic conditions. They have to rely on their own working ability to support themselves after their divorce, a situation that is undoubtedly very difficult for women with disabilities.
 
III. Ways to Realize Women with Disabilities’ Right to Economic Assistance for Divorce
 
Through the above analysis of the reasons for strengthening the protection of women with disabilities’ right to economic assistance for divorce, it can be seen that women with disabilities are more vulnerable after divorce and more likely to claim economic assistance for divorce; women with disabilities are more physically and psychologically dependent; women with disabilities find it more difficult to find jobs; social security for women with disabilities is still inadequate; and the rate of remarriage for women with disabilities is relatively low. Due to the above factors, compared with other people, women with disabilities are likely to be in a substantially unequal position in the realization of their right to economic assistance for divorce in reality. They are more in need of attention and help, and are more likely to suffer from the harm of failing to fully realize their right to economic assistance for divorce and to protect their legitimate rights and interests.
 
In view of these problems, the next work to be done is to make reasonable interpretation and application of the provision regarding economic assistance for divorce stipulated in Article 1090 of the Civil Code. In cases involving women with disabilities requesting economic assistance for divorce, we should pay close attention to and take into account the particularities of women with disabilities in their physical, psychological, social, family life, the labor market and the remarriage market. Through the specific application of relevant laws and regulations, the right to economic assistance for divorce of women with disabilities should be fully realized, so as to achieve the substantive equal protection of women with disabilities.
 
To be specific, according Article 1090 of the Civil Code, the condition for a party to request economic assistance for divorce is “living with difficulty,” and the specific measure for assistance shall be “made by both parties through consultation. If they fail to reach agreement, the People’s Court shall make a judgment.” However, the Civil Code lacks practical provisions on specific standards of living with difficulty and considerations in the implementation of economic assistance. Through the analysis in the first part of this paper, we can see that the normative content of the economic assistance system for divorce in the Civil Code is no longer limited to the assistance to those who cannot maintain the local basic living standard. Rather, it should include support for the spouse whose standard of living has declined significantly after divorce, and compensation for the spouse who has sacrificed and contributed to the marriage relationship during marriage. This normative content is consistent with the legislative goal of gradually increasing the protection of economic rights and interests of the divorced disadvantaged groups in China’s divorce legislation, and is also closer to the international common practice. In British law, for example, one of the three principles for determining the property consequences of a divorce is “the needs of one’s spouse.” The provision for the needs of one’s spouse can be seen as the cornerstone of the auxiliary remedy for divorce. That is, by establishing a marriage in which both parties are responsible for each other’s needs. This responsibility persists after the marriage has ended.  In German law, maintenance of the other party by one of the original spouses after divorce includes maintenance for the care of children (Art. 1570 of the German Civil Code), maintenance for old age (Art. 1571 of the German Civil Code), maintenance for illness or disability (Art. 1572 of the German Civil Code), maintenance for unemployment (Art. 1573 of the German Civil Code). 
 
Guided by the normative content of the economic assistance system for divorce, when a disabled woman divorces from a non-disabled person, the following two aspects should be paid attention to in the legal interpretation and application of Article 1090 of the Civil Code:
 
A. The conditions for obtaining economic assistance for divorce
 
Based on the above analysis of the normative content of the economic assistance system for divorce, when Article 1090 of the Civil Code applies in the case of divorce of women with disabilities, if the women with disabilities cannot maintain a reasonable standard of living by relying on personal property, property acquired at the time of divorce, wage income after divorce, social security relief, etc., and if their standards of living after divorce is significantly lower than during their marriage, the women with disabilities have the right to ask for appropriate economic assistance. Thus, to some extent, it can make up for the disadvantaged position of women with disabilities in the physical or psychological fields, job market and remarriage market in reality, prevent them from getting into economic difficulties and life difficulties due to divorce, and guarantee their life after divorce, so as to realize the substantive equality between the parties by the economic assistance system for divorce.
 
It should be noted that while providing economic assistance to women with disabilities in divorce, consideration should also be given to the affordability of the other party. Appropriate economic assistance should be given according to the affordability of the other party, and excessive emphasis should not be placed on women with disabilities while ignoring the legitimate rights and interests of the other party. If the other party fails to maintain a reasonable or even basic standard of living after providing economic assistance to women with disabilities, it may run counter to the normative content of the economic assistance system for divorce. Economic assistance for divorce is designed to protect the legal rights and interests of the parties involved in the difficult life, so that they will not fall into financial difficulties due to the divorce. If economic assistance would put one's own life in a difficult situation, specific considerations should be made on the basis of the reality of the case and no economic assistance should be given, or should be commensurate with the affordability of the parties.
 
B. Specific factors that apply to the economic assistance for divorce
 
When providing economic assistance for divorce, it is necessary to further interpret and consider Article 1090 of the Civil Code in consideration of the special background and specific circumstances of women with disabilities, so as to make it more targeted in the specific application of judicial practice and show more humanistic care for women with disabilities.
 
First, factors for consideration in economic assistance for divorce. In determining the amount and ways of economic assistance for divorce, the court shall take into account the property status and income of both parties, their future career development prospects and occupational abilities, their social security or other social benefits received, the length of marriage, the living standard before divorce, as well as the special psychological characteristics that women may have, their emotional devotion to marriage and family and their contribution to family affairs, the degree of disability of women with disabilities, their time of being disabled, their ability to live independently and their ability to work, etc.
 
In general, first of all, more assistance should be given to women with higher levels  and degrees of disability.  Because their labor capacity is limited, their disadvantaged position in the job market is more obvious, and they are less likely to obtain satisfactory jobs to maintain a reasonable standard of living. On the other hand, the high cost of assistive devices and medicines makes them more vulnerable to financial hardship. Secondly, more help should be given to women with disabilities after marriage. The reason is that their disability is probably caused by their contribution and devotion to the marriage. However, the law of China does not set a strict clause for the divorce of persons with disabilities.  In the event of divorce, the living standards of women with disabilities may fall sharply and they cannot get the proper protection, which seriously damages the expected interests of women with disabilities in the marriage, and is especially unfair to women who have become disabled due to their contribution to the marriage. Finally, more economic assistance should be given to women with disabilities who have relatively insufficient social security, so as to make up for the deficiency of social relief and security systems, and fully realize the legislative function of the economic assistance system for divorce to help the disadvantaged.
 
Second, the time for economic assistance for divorce. The payment of economic assistance should be made within a reasonable period of time. In other words, it should be judged based on the reality of the case, leaving reasonable preparation time for the party providing economic assistance, while providing timely relief for the party receiving assistance. In general, as the vulnerability and limitations of women with disabilities are more apparent, economic assistance for divorce should be provided as soon as possible to ensure that their  reasonable living needs are met  and they do not experience a rapid, sharp decline in their standard of living as a result of divorce. In particular, when divorced women with disabilities are in urgent need of economic assistance for medical treatment for their disability, medical care or purchase of necessary assistive devices, the economic assistance of the other party should be given in a timely and prompt manner so as not to delay the treatment of women with disabilities.
 
Third, ways of economic assistance for divorce. Economic assistance can be either a one-time payment or a phased payment over a period of time. If at the time of divorce the disabled woman is young, has a lower disability level and has a certain ability to work, she may be given one-off or short-term assistance on a regular basis. Meanwhile, those who are older at the time of divorce, have higher levels of disability, or are incapacitated or lack the ability to work should be offered regular assistance for longer periods. 
 
Fourth, the form of economic assistance for divorce. The forms of economic assistance include not only payment of money, but also payment of specific property rights (including but not limited to the right of ownership and living in a residence) and provision of labor services. Special attention should be paid to the fact that if a disabled woman does not have a place to live after her divorce, she is deemed to be living with difficulties.  When the other party gives economic assistance, he shall, according to the reality of her circumstances, grant her the right of ownership or living in a residence, so as to ensure that the disabled woman has a place to live. The establishment of the legal right of residence in the book on Real Right of the Civil Code provides the basis of the property right for the form of helping women with disabilities with living difficulties with the right of residence in the economic assistance for divorce. A disabled woman can obtain the legal right of residence by signing a written agreement with the other party and registering the right of residence in a real estate registration agency,  so that her living needs are reasonably satisfied, and lawful rights and interests are reasonably guaranteed. It is also important to note that economic assistance to women with disabilities in the form of right to residence should take into account the special situation of women with disabilities, for example, by providing them with rooms and facilities that are convenient for them to access and live in.
 
In addition, if a disabled woman has a higher degree of disability or is unable to perform domestic work or specific necessary work because of her disability, the other party may also give economic assistance in the form of providing the disabled woman with the labor services she needs. In this way, the daily difficulties of the disabled woman can be solved to some extent, and more humanistic help can be provided for her.
 
Fifth, special considerations for economic assistance for divorce involving children. After divorce, if a joint child is directly raised by a disabled woman, the other party shall, in addition to paying child support in accordance with Article 1085 of the Civil Code,  provide appropriate additional assistance if the disabled woman meets the conditions for economic assistance. This can guarantee the reasonable living standard of women with disabilities and their children after divorce, which conforms to the principle of the best interests for children and that of protecting the interests of disadvantaged groups. At the same time, it also makes up for the opportunity costs and additional economic costs that women with disabilities have to incur in their work because of the need to care for their children.
 
IV. Conclusion
 
According to the second principle of justice put forward by John Bordley Rawls in A Theory of Justice, social and economic inequality should be suitable for the best interests of the least benefited.  In Justice as Fairness: A Restatement, Rawls further elaborated on this point. “If men have more fundamental rights and greater opportunities than women, then these inequalities can only be justified in such a way that they are beneficial to women and acceptable from their point of view.”  The realization of justice is not only about the equality of freedom and opportunity, but also the realization of substantive equality after considering the difference principle, which, of course, also includes the solution of the inequality that may be brought about by gender difference and disability.  The realization of substantive equality ultimately depends on the concern and protection of the interests of the disadvantaged groups.
 
“All human rights and fundamental freedoms are universal, indivisible, interdependent and interrelated. And the full enjoyment of those rights and freedoms without discrimination must be guaranteed to persons with disabilities.”  As affirmed in the Platform for Action adopted by the United Nations Fourth World Conference on Women, it is important to recognize that “women face barriers to full equality and advancement because of such factors as their race, age, language, ethnicity, culture, religion or disability, because they are indigenous women or because of other status.”  Therefore, to respect and protect the human rights of women with disabilities, so that they can participate in family life and social life on an equal footing and share the fruits of civilization, is an inevitable requirement for achieving social equity and justice, and is also an important task in the construction of socialist rule of law in China.
 
The implementation of this task requires us to shift from the theoretical issues to practical issues, and from the extensive legislative and judicial ways to the detailed and specific ways. The Civil Code is an encyclopedia of social life. It is a Civil Code that conforms to the interests and aspirations of the people and safeguards their basic rights. To pay attention to the realization of the right to economic assistance system for divorce of women with disabilities under the perspective of the Civil Code, and to put forward reasonable legal interpretation and application proposals, is a chance to review and interpret the Civil Code from the perspective of protecting the human rights of disadvantaged groups. This will help refine and standardize the specific applicable rules of the Civil Code, improve the system of rights protection and relief in the Civil Code, and reflect the Civil Code’s all-round protection and care of the lawful rights and interests of the people.
 
(Translated by CHEN Feng)

* XIA Yinlan ( 夏吟兰 ), Professor at China University of Political Science and Law.
 
** XIA Jianghao ( 夏江皓 ), Postdoctoral Researcher of China University of Political Science and Law. Fund project: The phased research results under the theme “Value Judgment and Application Criteria of Divorce Property Division and Divorce Relief System in The Civil Code: Based on Safeguarding Women’s Human Rights” (CSHRS2020-21YB), a ministerial-level project of the China Society for Human Rights Studies in 2020.
 
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4. The State Council Information Office of the People’s Republic of China, Equality, Participation and Sharing: White Paper on the Protection of the Rights and Interests of the Disabled in the New China for 70 Years, July 2019.
 
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8. Xia Yinlan, “Innovation and Development of the Book on Marriage and Family”, China legal Science 4 (2020).
 
9. Article 25 of the Marriage Law of 1950 provides that “If, after divorce, one party has difficulty living without marriage again, the other party shall help to support him or her. The method and duration of assistance shall be agreed by both parties. If they fail to reach agreement, the People’s Court shall make a judgment.” Article 33 of the Marriage Law of 1980 provides that “At the time of divorce, if one party has difficulties, the other should give appropriate economic assistance. Specific arrangements shall be made by both parties through consultation. If they fail to reach agreement, the People’s Court shall make a judgment.”
 
10. Hu Kangsheng, interpretation of the Marriage law of the People’s Republic of China (Beijing: Law Press of China, 2001), 171-174. Civil Law Office, Legislative Affairs Commission of the NPC Standing Committee,Interpretation of the Marriage law of the People’s Republic of China (Beijing: Qunzhong Press, 2001), 167-169.
 
11. Yu Yanman, original Theory of Relative law (Beijing: Law Press of China, 2007), 358-359; Ma Yinan, law of Marriage and family inheritance (Third edition) (Beijing: Peking University Press, 2014), 136-137; Wang Hong, Marriage and family law (Beijing: Law Press of China, 2003), 182 and 194-196; Yang Dawen, family law (Beijing: Law Press of China, 2004), 197.
 
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16. The First Court of Civil Trials of the Supreme People’s Court, Understanding and Application of Judicial interpretation of Marriage law (Beijing: People’s Court Press, 2002), 96.
 
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18. Qu Xiangfei, “Convention on the Rights of Persons with Disabilities” and the Protection of the Rights of Persons with Disabilities”, law Science 8 (2013).
 
19. Article 33 of the Constitution stipulates that “All persons holding the nationality of the People’s Republic of China are citizens of the People’s Republic of China. All citizens of the People’s Republic of China are equal before the law. The State respects and protects human rights. Every citizen is entitled to the rights and at the same time must perform the duties prescribed by the Constitution and the law.”
 
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22. Ran Qiyu, A Study on the legal System of Divorce under the Perspective of humanism (Beijing: Qunzhong Press, 2012), 192.
 
23. Wang Geya, “Social Gender Analysis for Economic Assistance System”, law Science Magazine 7 (2010).
 
24. Article 1087 of the Civil Code provides that “At the time of divorce, the husband and the wife shall seek agreement regarding the disposition of their jointly possessed property. If they fail to reach an agreement, the People’s Court shall, on the basis of the actual circumstances of the property and on the principle of taking into consideration the rights and interests of the child, the wife and the unerring party.”
 
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28. Susan Moller Okin, Justice, Gender and the family, trans. Wang Xinyu (Beijing: China University of Political Science and Law Press, 2017), 192.
 
29. Xia Jianghao, “Study on Rules of Joint Debt Recognition between Husband and Wife: Reflection from the Perspective of Feminist Law (Interpretation of Marriage Law (II)) Article 24“, Journal of Gansu Political Science and law institute 6 (2017).
 
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40. Liu Bohong, et al., “Research on Development Plight, Interest Demand and Countermeasures of Women with Disabilities in China“, Disability Research 2 (2013).
 
41. Gao Yuanyuan, “Deconstruction and Reconstruction of Social Support Network for Women with Disabilities in China“, Disability Research 3 (2011).
 
42. Guo Chunning and Deng Zhiqiang, “Hman Rights Protection Mechanism and Development Prospect for Persons with Disabilities with Chinese Characteristics“, human Rights 4 (2017).
 
43. WHO, Summary of the World Report on Disability, 2011, page 10.
 
44. Lloyd R. Cohen, “Marriage: A Long-term Contract“, in law and economics of Marriage and Divorce, Antony W. Dnes and Robert Rowthorn ed., trans. Wang Shixian (Beijing: Law Press of China, 2005), 22-28.
 
45. Wang Geya, “Litigation of Divorce Law: Practice and Analysis“, legal forum 4 (2014).
 
46. Gao Ying and Zhang Xiulan, “The Dilemma of Urban Women’s Remarriage from the Perspective of Gender Difference in Remarriage Population: A Case Study of Beijing“, South China Population 5 (2012).
 
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49. Xia Jianghao, “The Law Application of Divorce Property Division and Divorce Relief System of the Civil Code: With Importance Attached to the Protection of the Legitimate Rights and Interests of Rural Women“, Journal of huazhong University of Science and Technology(Social Science edition) 4 (2020).
 
50. According to the “China Practical Assessment Standards for Persons with Disabilities”, disabilities are classified into visual, hearing, speech, intellectual, physical and mental disabilities, and in each category are classified into different degrees according to the level of disability.
 
51. For detailed discussion, please refer to Fan Lijun, “On the Design of Legal Reasons for Divorce in the Civil Code and the Protection of Rights and Interests of the Disabled“, law Science Magazine 2 (2020).
 
52. Leading Group of the Supreme People’s Court on the Implementation of the Civil Code, Understanding and Application of the book on Marriage and family of the Civl Code (Beijing: People’s Court Press, 2020), 326-327.
 
53. Paragraph 2-3, Article 27, Judicial Interpretation of The Marriage Law (I).
 
54. Article 366-369 of the Civil Code.
 
55. Article 1085 of the Civil Code provides that “If, after divorce, the children are directly put in the custody of one party, the other party shall bear part or the whole of the fosterage expenses. The two parties shall seek agreement regarding the amount and duration of such payment. If they fail to reach an agreement, the People’s Court shall make a judgment. The agreement or judgment specified in the preceding paragraph shall not prevent the child from making a reasonable request, when necessary, to either parent for an amount exceeding what is decided upon in the said agreement or judgment.“
 
56. John Bordley Rawls, A Theory of Justice, trans. He Huaihogn, He Baogang and Liao Shenbai (Beijing: China Social Sciences Press, 2016), 303.
 
57. John Bordley Rawls, Justice as fairness: A Restatement, trans. Yao Dash (Shanghai: Shanghai Sanlian Bookstore Press, 2002), 105.
 
58. Xia Jianghao, “Study on Rules of Joint Debt Recognition between Husband and Wife: Reflection from the Perspective of Feminist Law (Interpretation of Marriage Law (II)) Article 24”, Journal of Gansu Political Science and law institute 6 (2017).
 
59. Preamble of the CRPD.
 
60. Art. 46, Chapter III: Critical Areas of Concern, Platform for Action, UN Fourth World Conference for Women.

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