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 per cent 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 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 proportions.
Where there are special circumstances, the above proportion may be appropriately increased or decreased.
【Purpose of the Article】
This article deals with the method of determining the amount of alimony.
[Interpretation of Provisions]
The content of this article is derived from article 7 of the Opinions on Child Support in Divorce Cases, which stipulates that "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 regular income, child support payments can generally be paid at the rate of 20 to 30 per cent of their total monthly income. Where two or more children are responsible for raising expenses, 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 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 proportions. If there are special circumstances, the above proportion may be appropriately increased or decreased. "This article is based on personal income and adopts the proportional method according to different circumstances, although time has passed, it is still in line with the actual situation of adjudication, and plays an important role in judicial practice. Therefore, the content of the original article has been largely retained. In order to be consistent with the relevant expressions of the Civil Code, in the process of cleaning up this interpretation, "child support" is changed to "child support". In addition, the words "may" and "or" in the original provision were amended to read "may" and "or".
1. The concept and scope of child support
Article 49 of the Constitution clearly stipulates that parents have the duty to raise and educate their minor children. The obligation to raise and educate mainly includes taking care of minors in their daily lives, ensuring that minors receive compulsory education, managing and educating minors in appropriate ways and methods, protecting minors' persons and property from being infringed upon, and promoting the healthy physical and mental development of minors. Article 1067 of the Civil Code stipulates that if parents fail to fulfill their obligation to support their children, minor children or adult children who cannot live independently have the right to demand maintenance from their parents.
There are broad and narrow senses of child support, and in a broad sense, child support refers to the expenses incurred by parents for the life and education of their children. This article refers to the maintenance expenses paid by the parent who does not directly support the child after the divorce. Article 1085 of the Civil Code stipulates that if a child is directly raised by one party after divorce, the other party shall bear part or all of the maintenance. According to Article 42 of this Interpretation, the maintenance expenses here shall specifically include necessary expenses such as living expenses, education expenses, and medical expenses. According to Article 1085 of the Civil Code, the specific amount of payment shall be agreed upon by both parties; If the agreement fails, the people's court shall make a judgment. The people's court's determination of the amount of child support shall take into account factors such as the actual needs of the children, the economic status of the parents, and the actual living standards of the locality.
2. How to understand the factors that determine the amount of alimony in paragraph 1 of this article
In accordance with paragraph 1 of this article, the amount of maintenance may 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.
(1) The actual needs of the child
The actual needs of the child are the primary consideration, which is not only the embodiment of the principle of the best interests of the child, but also an objective requirement for the protection of minors. The actual needs of the children refer to the normal needs of the children who should be able to maintain their clothing, food, housing, transportation, education, medical care, etc., according to the actual situation of the children. On the one hand, the maintenance obligor should meet the normal study and life of the children, and try to provide them with good material security; On the other hand, it should also be consistent with the actual needs of the child, that is, the amount of maintenance should be limited to what is justified and necessary, even if the maintenance obligor has a high income, when the child makes unreasonable and excessive demands, it can be refused, because this need exceeds the limit of "actual needs". The specific degree should be determined according to the relative balance between the needs of the person with the right to support and the economic capacity of the person with the obligation to support.
(2) The affordability of both parents
The determination of child support should also take into account the economic income and economic conditions of both parents, and parents with stable economic income and better economic conditions can pay more; Parents with lower economic incomes and poor economic conditions can pay less. The economically weaker parent cannot be held accountable for high maintenance costs that exceed the child's actual needs and the actual standard of living in the locality. In real life, especially in rural areas, there are some parents who cannot guarantee their own living expenses, and life is very difficult. In this case, parents also have to bear child support, because the children do not live independently and have no ability to survive, while parents generally have the ability to survive. In this case, in accordance with the provisions of Article 51 of this Interpretation, their property may be used to offset the maintenance fee. That is, if the non-directly dependent party has no economic income or his whereabouts are unknown, he or she can also use the property to offset the alimony.
(3) The actual local standard of living
The actual local standard of living generally refers to the standard of living in the place where the child actually lives and lives. The reference standard for the actual local living standard is not clearly stipulated in the law, and in practice, it is mainly reflected through a number of indicators such as income, expenditure and social welfare. The income indicators include the per capita disposable income of urban households and the per capita net income of rural households. The expenditure indicators include the per capita consumption expenditure of urban households and the per capita living consumption expenditure of rural households. To determine the actual local living standards, the per capita consumption expenditure of local urban households and the per capita living consumption expenditure of rural households should be based on the two monetary indicators, and due consideration should be given to the per capita disposable income of urban households, the per capita net income of rural households, as well as social welfare factors such as employment, education, and health.
In trial practice, the actual needs of the children and the affordability of both parents are generally examined first, and then the actual living standards of the local area are examined. Since the purpose of the payment of child support is to meet the needs of the child's life, education, medical care, etc., the payment of child support should be in accordance with the parents' objective ability to pay. However, if the parents are financially well-off, it is reasonable to be willing to pay higher child support, and it does not have to be consistent with the local standard of living. Similarly, if the parents' living conditions are poor, and the upper limit of child support is already lower than the local standard of living, it is not appropriate to impose more child support than they can afford to pay. When there is a disagreement between the parties on the amount of child support and it cannot be determined by the other two factors, the adjustment should be made by applying the actual local standard of living.
3. How to interpret the scale of maintenance provided for in paragraphs 2 and 3 of this article
According to the provisions of paragraph 2 of this article, if a person has a fixed income, maintenance can generally be paid at the rate of 20%~30% of his total monthly income. Where two or more child support is payable, the proportion may be appropriately increased, but generally must not exceed 50% of the total monthly income. That is to say, if one party is required to bear the maintenance of two or more children, it does not need to be limited to 20%~25% of the total monthly income, and this proportion can be appropriately increased according to the actual situation, such as about 40%, but generally not more than 50% of the total monthly income. It should be noted that the total monthly income refers to the total amount of labor remuneration that a person receives in a month. Such as basic salary, seniority salary, bonuses and other allowances. Health care expenses, cleaning expenses, sanitation expenses, etc., which are entirely paid to individual employees, should not be counted, because these are expenses issued by the state to individuals for labor protection and should be used for personal use by employees.
In accordance with the provisions of paragraph 3 of this article, 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 proportion of paragraph 2 of this article. Persons with no fixed income, such as farmers, individual industrial and commercial households, small vendors, and persons engaged in other business activities. For farmers, it may be determined on a quarterly or annual basis, with reference to the proportion of paragraph 2 of this article; For individual industrial and commercial households, small vendors and persons engaged in other business activities, the income may be determined on a quarterly or annual basis, or on the basis of the average income of the same industry. The people's court may make a comprehensive determination of the specific amount of payment based on the actual income of the parties and with reference to the statistical data on the average income of the same industry.
4. How to interpret the provisions of paragraph 4 of this article on special circumstances
It is reasonable for child support to be relatively increased or decreased according to the income level of the parents, but the children are not the economic partners of one of the parents after all,[5] and the income ratio provided for in paragraphs 2 and 3 of this article is the reference standard for the people's courts to hear cases involving maintenance disputes, and is not the only standard. If the payment is absolutely in accordance with the proportion stipulated above, it is easy to cause omissions in some cases. Therefore, with the provisions of paragraph 4 of this article, if there are special circumstances, the above-mentioned proportion may be appropriately increased or decreased.
At present, the income of individuals in the mainland is diverse, and the difference is quite wide. The purpose of paragraph 4 of this article is that when dealing with the issue of child support, if one party's income is abnormally high or low, the people's court may appropriately adjust the proportion of the child support burden according to the actual needs of the children, the affordability of the parties, and the actual living standards of the locality. If the annual income is hundreds of thousands of yuan, millions of yuan, or even tens of millions of yuan, or more, if maintenance is also paid in accordance with the proportion provided for in paragraph 3 of this article, it is obviously not in line with the actual situation and the original intent of the legislation. If the amount of alimony is determined in accordance with the above-mentioned proportions, in a sense, it will far exceed the scope of alimony and will also affect the normal production and operation of the person with the obligation to support. At this time, the proportion of burden can be appropriately reduced according to factors such as the actual needs of the children and the actual living standards of the local area. Of course, in the case of a child's illness, disability, or other actual needs, where a large amount of expenses is required, if it is difficult to maintain the child's normal living needs in accordance with the proportions determined in paragraphs 2 and 3 of this article, the proportion of the burden may also be appropriately increased.
[Issues that should be paid attention to in trial practice]
1. Changes in parental affordability
It is the legal obligation of parents to raise and educate their children, but the actual payment of child support is premised on their affordability. In practice, there are often changes in the affordability of the payer of child support, such as the loss of the payment obligor, the illness of the payer, or the reduction of the employee's income due to the suspension of work and production of the enterprise. Based on trial practice, parents may appropriately reduce the proportion of their burden in any of the following circumstances: (1) their income has been significantly reduced; (2) Those who have been sick or incapacitated for a long time, and have no financial resources, and are truly unable to pay child support according to the original amount; (3) Where a person has been imprisoned for violating a crime and has lost his or her financial ability and is unable to pay, but has financial resources after restoring his or her personal freedom, he or she shall be paid according to the original agreement or judgment. It should be noted that in the course of the performance of child support, if one party requests a reduction in the amount of child support on the grounds of a change in his or her affordability, the people's court should examine whether the situation directly affects the payment of child support in light of the circumstances of the case. In addition, if the amount of maintenance is reduced due to changes in affordability, once the child recovers or even exceeds the original ability to support the child, the child still has the right to request an adjustment of the maintenance payment ratio, and can also request an increase in the maintenance fee according to the actual situation. The people's court may make adjustments to child support as appropriate based on the specific circumstances of the case.
2. The amount of child support should be in line with the parents' affordability and local standard of living while meeting the actual needs of the children
This article provides for three considerations: the actual needs of the child, the affordability of both parents, and the actual standard of living in the locality. If it is interpreted in accordance with the principle of the best interests of the child, when determining the actual needs of the child, it shall be determined from the perspective of ensuring the healthy growth of the child in accordance with the provisions of this interpretation on the scope of child support. However, the premise of fulfilling the obligation to provide living support for children is that the parents have the ability to afford it, so the affordability of both parents is also an important factor in determining child support, and the amount of child support should also be determined based on the actual needs of the children, and the parents' affordability and the actual local living standards should be fully examined.
For example, A (male) and B (female) have a son C in marriage, B is a rural teacher, and A is an employee of a rural factory, and the two parties divorce due to the breakdown of their relationship, and the court mediates and voluntarily reaches an agreement that the child C will be raised by mother B, and A will pay C 25% of the net income of the salary every month, and enjoy the right of visitation in accordance with the law. A year later, A received a petition from his son for an increase in child support, because the child was sent by his mother to a private aristocratic school in the provincial capital, and the tuition fee was high, so he requested the court to order the defendant to bear 50% of the education expenses. After review, the court held that after the parents divorced, both parties had the same responsibility for the maintenance of the children. When a child is raised by the mother, the father is also responsible for the necessary living and education expenses. For C's alimony, the parents have reached a mediation agreement. The maintenance fee includes not only the living expenses of a certain C, but also the education expenses. It meets the actual needs of C at that time, and also meets the affordability and actual living standards of A. However, when choosing a school for her children, C's mother should have consulted with her father and choose a school based on her actual living standard and financial ability, and the school C is currently attending is obviously inconsistent with the income capacity of both parents, and is a unilateral act of her mother without her father's consent, so C's request for her father to bear the education expenses again is not based on sufficient grounds, and the judgment rejects plaintiff C's claim in accordance with law. In other words, if both parents can afford it, it is understandable to attend a private school with high tuition fees for their children, but in the above case, both parents are wage earners with low incomes in villages and towns and cannot afford the high education costs, and one party sends his or her child to a private school that is obviously inconsistent with the parents' affordability without reaching an agreement with the other party, and the court generally does not support the request for increased child support.
3. Application of the rule of thumb of judges in this article
The law is abstract, and the concrete practical experience is alive. In trial practice, daily life experience plays an important role in determining facts and applying the law, and the correct and reasonable application of empirical rules is conducive to judges correctly understanding and applying the law, and making fair judgments. Article 105 of the Judicial Interpretation of the Civil Procedure Law stipulates that the people's court shall, in accordance with legal procedures, comprehensively and objectively review the evidence, and in accordance with the provisions of the law, use logical reasoning and the rules of daily life experience to make judgments on whether the evidence has probative force and how much probative it has, and disclose the reasons and results of the judgment. Article 85 of the Provisions on Evidence in Civil Procedure stipulates that the people's court shall make a judgment in accordance with law on the basis of the facts of the case that can be proved by the evidence. Adjudicators shall follow legally-prescribed procedures to comprehensively and objectively review evidence, follow the provisions of the law, follow judges' professional ethics, use logical reasoning and daily life experience, independently make judgments on whether evidence has probative force and how much probative force it has, and disclose the reasons and results for the judgment.
According to the provisions of this article, the amount of maintenance shall be determined on the basis of three factors: the actual needs of the child, the affordability of both parents, and the actual living standard of the locality; The specific payment ratio is based on the nature of the job, earning capacity, etc. Because of the vast territory of the mainland, the extremely uneven degree of economic and cultural development in various localities, the situation of each family is also different, and the income levels of different regions and different industries are also very different, the law does not stipulate the applicable criteria for specific situations, but delineates the general determinants and the range of proportions under different circumstances, which has a certain abstract nature. At this time, the judge's rules of thumb for everyday life play an important role. This requires judges to proceed from the specific reality of the case, strictly follow the scope delineated by the law and judicial interpretations, and make full use of the rules of daily experience to review and determine the evidence submitted by the parties, so that the authentication results do not contradict people's daily life experience as much as possible.