There is a reasonable determination of the standard for the amount of child support under special circumstances

There is a reasonable determination of the standard for the amount of child support under special circumstances

-- Liu Moumou v. Zhou Moujia, a divorce dispute case

Summary of the trial

Where a people's court makes a judgment granting a divorce to both husband and wife and determines that one party is to raise the children, it shall order the other party to pay the necessary child support. In principle, the amount of maintenance should be determined on the basis of the actual needs of the child, the affordability of both parents and the actual standard of living in the locality. For those with a fixed income, maintenance can generally be paid at the rate of 20% to 30% of their total monthly income; If there is no fixed income, the amount of child support may be determined on the basis of the total income of the year or the average income of the same industry with reference to the above ratio. If there are special circumstances, from the perspective of "balancing the actual living needs of the children and the affordability of the parents", a comprehensive balance should be made in accordance with the basic principles for determining child support and the circumstances of the case, and the standard for the amount of child support should be appropriately increased or decreased accordingly.

Basic facts of the case

In March 2015, Liu Moumou and Zhou Moumou confirmed their relationship. On February 26, 2017, the two parties registered their marriage and gave birth to a daughter, Zhou Mouyi, after marriage. Liu Moumou and Zhou Moumou A have a general relationship after marriage, and the two parties often quarrel over trivial matters, so Liu Moumou has returned to his parents' house since December 2018 and has been separated from Zhou Moumou A until now. Liu Moumou sued the court of first instance for divorce in 2020, and the court of first instance ruled in June 2020 that the two parties were not allowed to divorce. After the divorce was not allowed, the parties failed to reconcile, and the relationship between the husband and wife did break down. The legitimate daughter is now under the care of Zhou Moujia and lives together. Liu XX filed a lawsuit in this case, requesting: 1. a judgment for divorce between the two parties; 2. a legitimate daughter Zhou XX B lives with Zhou XX A, and Liu XX does not bear the maintenance costs; 3. Zhou XX A bears the litigation costs of this case.

Adjudication Results

The Linzi District People's Court of Zibo City made a judgment: 1. Grant a divorce to Liu Moumou and Zhou Moumou; 2. The legitimate daughter Zhou Mou B is raised by Zhou Mou A, and Liu Moumou pays 1,500 yuan per month for child support, which is to be paid before the 15th of each month. Liu Moumou was dissatisfied with the first-instance judgment and appealed to the Zibo Intermediate People's Court, claiming that the first-instance judgment that his monthly alimony of 1,500 yuan was obviously too high, that he was currently unemployed and suspected of committing a crime, and that he did not have the financial ability to afford the alimony of 1,500 yuan/month determined by the first-instance judgment. In the first instance, there was no factual or legal basis for subjectively determining the amount of child support at 1,500 yuan/month when he knew that he was not working and was suspected of committing a crime. In addition, the addresses of Zhou X A and Zhou X B are both rural, and even if the child support fee is calculated according to the standard of per capita annual consumption expenditure of rural residents in Shandong Province, it is far less than 1,500 yuan/month. In summary, it is requested that the judgment on alimony in item 2 of the first-instance judgment be revoked, and the judgment should be changed or remanded for a new trial in accordance with law. The Zibo Intermediate People's Court held in the second instance that, according to Article 49 of the Interpretation (1) of the Supreme People's Court on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China, the amount of child support can be determined according to the actual needs of the children, the affordability of both parents and the actual living standards of the locality. For those with a fixed income, maintenance can generally be paid at the rate of 20 to 30 percent of their total monthly income. Where two or more child support expenses are paid, the proportion may be appropriately increased, but generally must not exceed 50 percent of the total monthly income. If there is no fixed income, the amount of maintenance may be determined on the basis of the total income of the year or the average income of the same industry, with reference to the above proportions. Where there are special circumstances, the above proportion may be appropriately increased or decreased. In this case, Liu Moumou was released on bail pending trial on suspicion of a criminal offense, and has no fixed job, currently resides in × City, and the average annual salary of employees in private units in × City in 2020 is 49,574 yuan, that is, the monthly salary is 4,131 yuan, referring to the above-mentioned wage standard, the court of first instance pays child support according to the standard of 1,500 yuan per month, which is significantly higher than the standard determined by the judicial interpretation. Liu XX is currently released on bail pending further investigation, which is a special circumstance, and the standard for payment of child support may be appropriately reduced. Therefore, it was decided that Liu Moumou should pay 800 yuan per month in child support until the legitimate daughter Zhou Mouyi lived independently. In summary, Liu's appeal request was sustained. Accordingly, the second-instance judgment is: 1. Item 1 of the first-instance civil judgment is upheld, namely: (1) granting a divorce between Liu XX and Zhou XXA; 2. Item 2 of the first-instance civil judgment is modified to read: The legitimate daughter Zhou XX B is raised by Zhou XX A, and Liu XX pays 800 yuan per month for child support, and the legitimate daughter Zhou XX B lives independently, and is to be paid before the 15th of each month.

Case Interpretation

This case mainly involves the reasonable determination of the standard of maintenance under special circumstances. Paragraph 1 of Article 1085 of the Civil Code of the People's Republic of China (hereinafter referred to as the Civil Code) stipulates: "After divorce, if the children are directly raised by one party, the other party shall bear part or all of the maintenance. The amount of the cost to be borne and the length of the period shall be agreed upon by both parties; If the agreement is not reached, the people's court shall make a judgment. Therefore, in a divorce case where both husband and wife have children, the people's court should deal with the issue of child support together when deciding that the husband and wife are divorced, that is, it should be made clear in the judgment that the children are to be raised by one party, and the other party shall pay maintenance until the children live independently. However, the Civil Code does not clearly stipulate the standard of the amount of child support, so the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China (hereinafter referred to as the "Interpretation I of the Civil Code on Marriage and Family") makes relatively clear provisions on this issue in Article 49: "The amount of child support may be determined according to the actual needs of the children, the affordability of both parents and the actual living standards of the locality. For those with a fixed income, maintenance can generally be paid at the rate of 20 to 30 percent of their total monthly income. Where two or more child support expenses are paid, the proportion may be appropriately increased, but generally must not exceed 50 percent of the total monthly income. If there is no fixed income, the amount of maintenance may be determined on the basis of the total income of the year or the average income of the same industry, with reference to the above proportions. Where there are special circumstances, the above proportion may be appropriately increased or decreased. According to the above-mentioned Article 49 of the Interpretation I of the Marriage and Family Section of the Civil Code, the basic principle of the people's court in determining the amount of alimony is to comprehensively consider the three factors of "the actual needs of the children, the affordability of both parents and the actual living standards of the locality". For specific operations, the following standards are adopted: first, for those with fixed income, maintenance can generally be paid at the proportion of 20~30% of their total monthly income (for those who bear more than two child support, the proportion can be appropriately increased, but generally not more than 50% of the total monthly income); Second, for those who have no fixed income, the amount of maintenance can be determined according to their total income in the current year or the average income of the same industry, with reference to the proportion of 20~30% in the above-mentioned situation with fixed income. Of course, the above-mentioned standard for determining the amount of maintenance is obviously the standard for the amount under normal circumstances. However, considering the complexity of social life, various special circumstances do arise in practice, and Article 49 of the Interpretation I of the Marriage and Family Section of the Civil Code only stipulates in principle that "the above-mentioned proportion may be appropriately increased or decreased". Therefore, for special circumstances such as this case that arise in practice, it is necessary to comprehensively and balance the case in accordance with the basic principles of determining alimony. From the content of the basic principles for determining alimony discussed above, the determination of alimony needs to take into account three factors, namely, the actual needs of the children, the affordability of both parents and the actual living standards of the locality. Obviously, the "actual needs" and "actual standard of living" should be limited to normal and reasonable, and should be measured against the income and expenditure standards of the average local family, and then reasonably shared by both parents according to their actual affordability. That is, "the people's court shall, on the basis of protecting the interests of the children as much as possible, make sure that the maintenance fees can meet the actual needs of the children as much as possible, and will not cause excessive burdens on both parents or make them a disguised means of property division, so that the parents can bear the burden appropriately and equally". That is, we should adhere to the reasonable standard of "balancing the actual living needs of children and the affordability of parents". For example, in this case, Liu XX was released on bail pending trial on suspicion of a criminal offense, which is obviously a special circumstance compared with the parent who is completely free under normal circumstances, and in this case, the amount of child support that should be paid can be appropriately reduced in accordance with the law. However, if Liu Moumou currently lives in × City and has no fixed job, if according to Article 49 of the Interpretation I of the Marriage and Family Edition of the Civil Code, in the case of no fixed income, according to the average income of the same industry, that is, 20~30% of the average annual salary of employees in private units in × City in 2020 is 49,574 yuan, that is, the monthly salary is 4,131 yuan, and the amount is also 826~1,239 yuan and less than 1,500 yuan, the first-instance judgment that Liu Moumou pays child support according to the standard of 1,500 yuan per month is significantly higher than that of the The standards set forth in Article 49 of the Interpretation I of the Marriage and Family Section of the Civil Code. In this case, Liu Moumou has special circumstances, and the standard for the amount of child support that should be paid can be appropriately reduced, that is, the proportion standard that is appropriately lower than 20% can be considered, that is, it can be appropriately lower than the above-mentioned 826 yuan calculated at 20%. The second-instance trial comprehensively considered the above circumstances and determined as appropriate that Liu XX should pay child support at the standard of 800 yuan per month, which not only fully considered the actual interests and needs of the children, but also fully considered the special circumstances of the party who did not directly raise the children but should pay child support, and achieved a reasonable and lawful balance between the two while achieving the organic unity of legal and social effects. Judging from the actual situation of current social life, it is not uncommon for cases with special circumstances for the payment of alimony in practice, and this situation is only one of the common situations, that is, the party who does not directly raise the children at the time of divorce and should pay alimony has a situation where "it can be appropriately reduced". In practice, in addition to situations such as the present case, this situation is more common in cases where the party to whom maintenance should be paid is seriously ill, disabled, or detained for committing a crime. In these cases, there may be a special circumstance in which the standard of alimony payment may be appropriately lowered at the time of judgment. Of course, as far as practice is concerned, from the perspective of "balancing the actual living needs of the children and the affordability of the parents", the standard for special circumstances in which maintenance can be appropriately increased or reduced can be summarized as follows: 1. On the premise of considering the actual living needs of the children based on the standard of general family living needs, if the party directly raising the child has no special circumstances but does not directly raise the child, and the party who should pay the child support has special circumstances such as detention, serious illness or disability, The party who should pay maintenance may appropriately lower the standard for payment of child support; On the other hand, if the parent directly raising the child has special circumstances such as serious illness or disability, the other party shall appropriately increase the standard of child support. If neither parent is detained, seriously ill or disabled, but the economic income level of the parent directly raising the child far exceeds the local general income level and the other parent's income level is average or even has no fixed income, it may be considered that there are special circumstances and an appropriate reduction of the other parent's maintenance payment standard may be considered; On the other hand, if the economic income level of the parent directly raising the child is average or even unfixed, and the income of the other party far exceeds the local general income level, it can also be considered that there are special circumstances and the other party can be considered to appropriately increase the standard of maintenance payment. 2. Where there are special circumstances that require an appropriate increase in the standard for the payment of child support, the calculation ratio shall be appropriately higher than 30% of the "20~30%" provided for in Article 49 of the Interpretation I of the Marriage and Family Section of the Civil Code; If there are special circumstances that require an appropriate reduction in the standard for the payment of child support, the calculation ratio shall be appropriately lower than 20% of the "20~30%" provided for in Article 49 of the Interpretation I of the Marriage and Family Section of the Civil Code.

Relevant Laws

Article 1085 of the Civil Code of the People's Republic of China: Where after divorce, children are directly raised by one party, the other party shall bear part or all of the child support. The amount of the cost to be borne and the length of the period shall be agreed upon by both parties; If the agreement is not reached, the people's court shall make a judgment. The agreement or judgment provided for in the preceding paragraph does not prevent the child from making a reasonable demand to either parent in excess of the amount originally set forth in the agreement or judgment when necessary. Article 42 of the "Supreme People's Court's Interpretation (1) on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China" "child support" as used in Article 1067 of the Civil Code includes expenses such as children's living expenses, education expenses, and medical expenses. Article 49: The amount of child support may be determined on the basis of the actual needs of the children, the affordability of both parents, and the actual living standards of the locality. For those with a fixed income, maintenance can generally be paid at the rate of 20 to 30 percent of their total monthly income. Where two or more child support expenses are paid, the proportion may be appropriately increased, but generally must not exceed 50 percent of the total monthly income. If there is no fixed income, the amount of maintenance may be determined on the basis of the total income of the year or the average income of the same industry, with reference to the above proportions. Where there are special circumstances, the above proportion may be appropriately increased or decreased.

Sole judge of the first instance: Li Yanjiang Clerk: Zhang Ke

Members of the collegial panel of the second instance: Tao Zhimin, Chen Yanping, Yang Jisheng

Judge's Assistant: Zhao Shuyi Clerk: Su Yinyin

Prepared by: Rong Mingxiao, Zibo Intermediate People's Court

Reviewer: Lu Qiang, Shandong Provincial High People's Court

来源：山东高法 颐律‬观澜‬

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