寻找离婚财产分割的规范性原则

In Search of a Normative Principle for Property Division at Divorce

20世纪的离婚法改革是女性主义的一个奋斗成果,这一改革把美国婚姻法的过错离婚推向了无过错离婚,如何分割婚内财产成为性别平等的争议焦点。平等分割财产作为一种规则平等,并没有带给离婚后的女性实质意义上的平等,反而把女性推向贫穷化的结果。玛萨·法曼认为改革是以牺牲女性利益为代价而让男性受益,呼吁以需求为目的财产分割才能让女性获得真正的平等。文章正是针对这一规范性标准所做的评论,认为以需求为标准的财产分割,从法律实践上来看却难以操作。

Tbe reforms of divorce law in the United States in the 20th century was an outcome of feminist struggles, changing from divorce as fault into divorce without fault. How to divide the marital property becomes a focus in the struggle for gender equality. Equal division of property, as a rule on equality,is not substantive equality for divorced women, but to their panperization as an outcome. Martha Fine- man points out that equal division of property rules have benefitted men at the expense of women. Her call for new rules to govern proper- ty distributions at divorce that acknowledge needs aims to treat women more fairly than before. This paper agrees with the proposal of a- bandonment of equality rule and establish the principle of division of property based on needs. This latter equity method is better,but it could be more difficult to practice legally.