Insights

One party in Ningbo is ill, the other party will give up no matter what to do.

Ningbo Author：LuXu WANG

To state the conclusion upfront: Mutual support between spouses is a legal obligation, not a matter of goodwill that only exists when the relationship is good. If one party is ill, disabled, unemployed, or has lost their source of income, and the other party, despite being capable, neglects their duty by providing neither financial support nor assistance, the party in need of support may, without waiting for divorce, file a lawsuit with the court to demand maintenance payments. In urgent cases, they may also apply for provisional enforcement and property preservation measures to secure immediate access to funds necessary for survival. As long as the marriage continues, the duty of support remains; “I don’t want to take care of it” is not a legally permissible answer.

Many parties delay asserting their rights, fearing that “they can’t get financial support unless they divorce” or that “it will be embarrassing for a couple to take their dispute to court.” Neither of these concerns is valid. Article 1059 of the Civil Code makes it abundantly clear: the law not only permits claims to be brought during marriage but also provides a relatively swift avenue for doing so. What is often overlooked is not whether a right exists, but how to convert that right into actual, receivable funds—precisely by employing the correct procedures and presenting proper evidence.

1. What is the obligation of spousal support?

Article 1059 of the Civil Code provides: “Spouses have a mutual obligation to support one another.” A party who is in need of support has the right to demand that the other party pay maintenance when the latter fails to fulfill its duty of support. This provision serves as the starting point for all discussions in this article and constitutes the most fundamental basis for disputes over spousal support.

It carries two layers of meaning. The first level is “reciprocity”: support is not a one-sided act of charity. Both spouses are equal in status—when you are able to provide, you support me, and when I am able, I will support you. It is both an obligation and a right. The second level concerns “support”: it not only involves providing financial assistance but also includes practical assistance in daily life. In theory, it is typically divided into two aspects—

  • Material Support: The party with the financial means shall provide the other party with funds necessary for basic living, ensuring coverage of essential expenses such as food, housing, and medical care.
  • Living support: When the other person is ill or in a critical situation, provide care, companionship, and assistance, rather than leaving the patient alone at home.

There are three more points that are easily misunderstood and need to be clarified in advance. First, the duty of support is a legal obligation and is mandatory; spouses cannot eliminate it by means of a written agreement. Second, even if the two parties agree to implement a separate property system and spend each other, it does not affect the obligation to support each other; when one party is seriously ill, the other party is still obliged to take care of and share medical expenses. Third, the obligation to provide support is premised on the existence of a legally valid marital relationship, commencing upon the issuance of the marriage certificate and terminating upon the lawful dissolution of the marriage; cohabitation is not protected under this provision.

From a legal perspective, the obligation to provide support is personal in nature; it cannot be transferred, nor can it be set off against monetary debts. In other words, the other party may not refuse to provide support on the grounds that “you owe me money” or “your family paid a bride price”; nor may they demand that the other party be relieved of their obligations in exchange for waiving their own rights. This obligation persists throughout the duration of the marriage and is not terminated by separation or prolonged silence between the spouses; as long as the marital relationship has not been legally dissolved, it remains in effect.

2. Under what circumstances can one claim alimony?

Alimony cannot be claimed at will; it requires the simultaneous fulfillment of two conditions: one party must genuinely be in need of support, and the other party must have the financial capacity to provide such support. The former assesses “whether to keep a pet,” while the latter evaluates “whether one can afford to keep it.”

The so-called "need to support" usually refers to the temporary or long-term loss of one party's employment or earning ability, resulting in no source of livelihood, living difficulties, or unable to maintain basic living standards due to illness, old age, disability and other reasons. Common situations in practice where alimony may be claimed include:

  • One party suffers from a serious illness, chronic disease, or mental disorder requiring long-term treatment and care, resulting in substantial medical expenses;
  • One party becomes disabled due to an accident or illness, resulting in the loss of all or part of their ability to work;
  • One party has been unemployed for a long period, has no stable income, and lacks any other source of livelihood;
  • One party stays at home to care for children and elderly relatives and is therefore unable to work outside the home, lacking independent financial resources;
  • Other circumstances that make it difficult for one party to maintain a basic standard of living.

And "having the ability to support" means that the other party has relatively stable income, property or other economic sources, and has spare capacity besides maintaining its own basic life. It should be noted that the claim for maintenance is not conditional on the other party's fault-as long as one party has a need for maintenance, the other party should fulfill its obligations; nor can it be rejected because of "bad feelings" and "about to divorce. Conversely, if the other party is also in such dire financial straits that they themselves struggle to maintain a basic standard of living, courts will generally refrain from imposing a high alimony award. In the case of Wang Fangying v. Xie Huaming mentioned above, the plaintiff itself had no financial resources, and the court did not support the defendant's request for marital maintenance, but turned to life assistance in the event of divorce.

There is another level to distinguish: if the person who is sick and needs medical treatment is not the spouse himself, but the person who has the legal maintenance obligation (such as the parents and children of the other party), and the other party does not agree to pay a huge amount of medical expenses, the path provided by law is to request the division of the joint property of the husband and wife within marriage; when one of the husband and wife is sick, he or she can directly claim the maintenance fee without taking the step. This is a common pitfall in practice.

Finally, it must be emphasized that a claim for spousal support during marriage is contingent upon the continued existence of the marital relationship. Once a divorce is finalized, the mutual duty of support between spouses ceases, and the party in need may seek relief through mechanisms such as post‑divorce financial assistance; these two matters should not be conflated.

3. How to claim alimony The path advocated in

is not complicated; the key is to choose the right procedure.

Step one: You can start by negotiating and attempting mediation.Mediation conducted by the village committee, residents’ committee, people’s mediation committee, or the relatives of both parties is low‑cost and fast, making it suitable for situations where the other party is not acting in bad faith but merely has a misunderstanding. However, mediation is not a mandatory procedure; when the other party refuses to comply, there is no need to wait indefinitely.

Step 2: File the lawsuit directly; there is no need to divorce first.The party in need of support may, in their own name, file a lawsuit with the court regarding a support dispute (maintenance dispute), requesting the other party to pay maintenance allowances, medical expenses, and other related costs. The hallmark of this type of litigation is that it does not require divorce as a condition, nor does it presuppose the division of marital property during the marriage. In other words, as long as the other party fails to fulfill their duty of support, the sick party may file a separate lawsuit to claim financial support without being forced to first pursue divorce.

Regarding the cause of action and the court of jurisdiction. "Support" refers to the support and assistance between spouses and relatives of the same generation, which is different from the "support" of the elder to the younger generation and the "support" of the younger generation to the elder. When suing, the cause of action is generally written as "support fee dispute" or "support dispute". In terms of jurisdiction, it is usually accepted by the people's court of the defendant's domicile or habitual residence; if the defendant's domicile is inconsistent with his habitual residence, it shall be under the jurisdiction of the court of his habitual residence. This is especially important for spouses who work away from home year-round and do not return.

On the statute of limitations. Many people worry, “If we keep delaying it, will we no longer be able to have a child?” You can rest assured: According to Article 196 of the Civil Code, the right to claim child support, alimony, or maintenance is not subject to the statute of limitations. The reason is that alimony is related to the basic livelihood security of the entitled party, and the law provides it with preferential protection. In other words, if the other party consistently fails to pay, the debt will not be automatically waived simply because time has passed; of course, from the perspective of preserving evidence and seeking timely relief, it is more advantageous to assert your rights as soon as possible.

Regarding the presentation of evidence. In this type of litigation, the key aspects of proof lie in establishing both “need” and “ability.” The plaintiff wants to prove that he is really sick, unemployed or has no income, and the other party does have the ability to afford it. The defendant often defends with "no job" and "no money". At this time, the plaintiff can use the other party's social security, tax payment, work unit and other information to refute. If there is evidence that one party possesses income-related evidence but refuses to produce it without justifiable reason, the court may make a finding adverse to that party.

4. How is the amount of alimony determined?

The law does not prescribe a fixed standard; the amount of alimony is determined by the court on a case-by-case basis through a comprehensive assessment, with the key being a balance between “need” and “ability.” In judicial practice, courts generally take the following factors into consideration:

  • The actual needs of the party requiring support shall include basic living expenses, necessary medical expenses, nursing fees, rehabilitation costs, and the like.
  • The financial capacities of both parties: the paying party’s income level, financial status, and ability to pay, as well as the receiving party’s own income and assets;
  • Local standard of living: Determine a reasonable range based on the basic living expenses of local residents;
  • Other factors: such as whether there are minor children who need to be jointly supported, and whether there are other dependents who share the financial burden.

From the perspective of public cases, the maintenance fees determined by court judgment or mediation are mostly paid on a monthly basis. In the case of a dispute over marital support between Huang Moumou and Zhang Moumou, the wife suffered from "syringomyelia and depression" and the husband ran away from home and did not perform his obligations. The court considered that the husband was ill but had income from working, and in combination with his son's obligation to support, the court ruled that the husband should pay a monthly support fee of 1000 yuan. In other cases, the court ordered or mediated between 700 yuan and 1500 yuan per month according to the local living standard and the income of both parties. As can be seen, the amounts vary considerably and depend on the specific facts of each case; therefore, it is inappropriate to draw simple analogies.

In litigation, if one party is seriously ill and the medical expenses continue, in addition to requesting monthly maintenance, he can also claim the reasonable medical expenses that have occurred and will occur, and explain the composition of the expenses in the request to facilitate the court's accounting.

5. What happens if one fails to fulfill the duty of support?

Turning a blind eye is not merely a matter of having no conscience; it may also entail civil— and even criminal—liabilities.

First, it constitutes a statutory ground for divorce. According to Article 1079 of the Civil Code, domestic violence or abuse or abandonment of family members is a situation where the relationship has indeed broken down and mediation is invalid and divorce should be granted. In other words, if one party has long failed to fulfill their duty of support or has abandoned the other spouse, the court will generally grant a divorce when the latter files for divorce.

Second, to bear the liability for damages in divorce proceedings. According to Article 1091 of the Civil Code, in the case of divorce due to bigamy, cohabitation with others, domestic violence, maltreatment or abandonment of family members, the no-fault party has the right to claim damages, including material damages and moral damages. If the party in need of maintenance divorces due to the abandonment of the other party, he may claim damages together in the divorce proceedings.

Third, it may constitute the crime of abandonment. Article 261 of the "Criminal Law" stipulates: "For old, young, sick or other persons who do not have the ability to live independently, who have the obligation to support and refuse to support, if the circumstances are bad, they shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or surveillance. A spouse who is ill, disabled, or has lost the ability to live independently, and who, despite being capable of providing support, refuses to do so under particularly egregious circumstances, may be found guilty of the crime of abandonment.

It is important to draw a clear distinction: failing to fulfill one’s duty of support is one matter, and “filing for divorce” is another. Filing for divorce in itself does not constitute abandonment; however, using divorce or leaving home as a pretext to refuse to provide care and necessary financial support may be deemed a failure to fulfill one’s duty of support, or even as abandonment. The key to distinguishing these cases lies in whether there is a duty of support, whether there is the capacity to provide support, whether there is an intentional refusal to provide support accompanied by corresponding actions, and whether the circumstances are particularly egregious.

6. Differences from economic assistance and compensation for housework upon divorce

All three of these systems sound like they involve “giving money,” but their applicable scenarios and purposes are entirely different; confusing them can easily lead you down the wrong path.

  • maintenance fee for husband and wife: it occurs during the existence of marriage, which is a continuous legal obligation. As long as one party needs it and the other party has the ability, it should be paid. It does not require the other party to be at fault, nor does it require divorce.
  • Economic assistance for divorce: when divorce occurs, for the situation that one party has difficulties in life and cannot maintain the local basic living standard by relying on personal property and sharing property, the capable party will provide appropriate assistance, following the principle of "need and possibility", which can be paid in a short term or one time or in a long term; the recipient will generally stop after remarriage or economic improvement.
  • compensation for housework (economic compensation for divorce): in the case that one party pays more obligations due to raising children, taking care of the elderly, assisting the other party in the marriage, etc., he has the right to ask for compensation during the divorce, and the amount is determined by referring to the amount paid and the situation of both parties.

In a nutshell: Alimony is the “living expenses that should be provided during marriage,” economic assistance is “financial support during the post-divorce transition period,” and compensation for housework is “remuneration for the extra contributions made to the family.” The three cases are distinct, and the same claim for the same sum of money should not be simply repeated.

Difficulties in 7. Practice and Evidence Preparation

When claiming alimony, the biggest challenge often lies not in the law itself, but in the difficulty of actually obtaining the funds. There are two common obstacles in practice: first, the other party transfers, conceals property, transfers property, deposits, vehicles to relatives, or hides income in cash.

The key to addressing this is to ensure the evidence is solid. The evidence typically required includes:

  • Evidence of identity and marital status: marriage certificate, household registration book, etc., to prove that the marital relationship is still valid;
  • Proof of dependency: medical records, diagnostic certificates, hospitalization records, medical expense receipts, disability certificate, and assessment or certification of loss of working capacity;
  • Income and asset leads: the other party’s salary statements, bank accounts, social security payment records, tax payment records, information on business entities, and leads regarding real estate and vehicle registrations;
  • Records of the other party’s refusal to provide support: explicit statements in WeChat messages, text messages, or call recordings refusing to provide financial support or care; mediation records from the residents’ committee or mediation organizations; police reports, etc.
  • Evidence of one's own economic situation: proof of one's own income, proof of unemployment, statement of no income, etc., indicating that one really needs support.

If you are worried about the transfer of property by the other party, you can apply for property preservation at the time of prosecution, requesting the court to seal up and freeze the other party's accounts, real estate, vehicles, etc., leaving a property basis for future execution. For the evidence that the other party refuses to provide and may be transferred, it may also apply to the court for investigation and collection of evidence.

8. Channels for redress and emergency procedures

If the illness is urgent, waiting for money for surgery or medicine, the cycle of routine litigation may be too late. There are a few faster ways to go.

First, apply for provisional execution. According to the provisions of the Civil Procedure Law on pre-execution, in cases of recovery of maintenance and medical expenses, if the situation is urgent, you can apply to the court for a pre-execution in the course of litigation, and the other party will pay part of the expenses in advance to solve the urgent need.

The second is to apply for property preservation. To prevent the other party from transferring or selling property during the proceedings and to ensure that future judgments can be enforced in place.

The third is to seek help from mediation and grassroots organizations. reflect to the neighborhood committee, village committee, women's federation and people's mediation committee that the organization should come forward to mediate and form written records when necessary, which can not only promote the payment, but also fix the evidence of the other party's refusal to support.

Fourth, seek advice from professional channels in a timely manner. Call the national court 12368 litigation service hotline to consult the process of filing, preservation and advance execution; if you have financial difficulties, you can call the 12348 public legal service hotline or apply for free legal assistance from the local legal aid agency.

9. Frequently Asked Questions

1. Without divorce, can you sue for maintenance?Yes. Article 1059 of the Civil Code expressly grants the party in need of maintenance the right to request the payment of maintenance, without having to presuppose divorce and without first dividing the common property.

2. The other side said "you have money", don't you need to support?No. The obligation to maintain is conditional on "one party's need for maintenance". As long as the actual needs such as illness and disability exist, the other party cannot refuse to do so on the grounds that you have a meager income. The court will determine whether to pay and the amount based on the circumstances of both parties.

3. The other party has not given money for a long time. Can you still ask for it after a few years?Sure. The right to request the payment of maintenance is not subject to the statute of limitations and will not be extinguished by the passage of time. But the earlier it is asserted, the more complete the evidence and the easier it is to execute.

4. Can child support be collected in a lump sum for multiple years? Monthly payments are usually common. Whether to support a one-time payment depends on the circumstances of both parties and the discretion of the court; in order to prevent the other party from defaulting, the judgment can be applied for enforcement after it takes effect, or it can be applied for deduction of wages and freezing of accounts during enforcement.

5. What should I do if the other party has already transferred all the money? Apply for property preservation as soon as possible, and claim to deal with the behavior of malicious transfer and concealment of property according to law; if it involves forged debts and low-cost transfer, you can claim the corresponding consequences in divorce or property disputes.

6. Can the other party directly accuse him of abandonment if he doesn't support him?The crime of abandonment is a criminal offense and is typically investigated by the public security authorities. The constituent elements are more stringent, the need to have the obligation to support, the ability to refuse to support, the circumstances are bad. You may first secure the evidence, file a report with the public security authorities, and simultaneously pursue maintenance payments through civil litigation.

10. Practical Legal Insights

If one party is sick and the other party leaves it alone, what is most likely to be ignored is not "can you ask for money", but "how to get the money as soon as possible". Many people think that marriage can only be tolerated without dissolution. In fact, the law has clear provisions on marital support. The party who needs support can directly sue for payment. In practice, there are two things to distinguish: first, you really need to support-serious illness, disability, unemployment leads to no source of income. Both of these conditions are indispensable. When advocating, don't just emphasize your own difficulties, but also put out the affordability of the other party, otherwise even if you win the case, the amount may be suppressed very low.

Evidence is the decisive factor in cases of this type. My suggestion is to leave traces in the system from the day of diagnosis: medical records, diagnosis certificates, hospitalization bills and medication lists to prove your actual needs; Income certificate, bank flow, social security payment, real estate and vehicle information point to the affordability of the other party; Then there is the evidence of the other party's "hands-off"-refusal to pay, refusal to visit, record of pulling black and lost contact, and statement of dissuasion by relatives and friends. When the situation is urgent, don't wait for the judgment, you can directly apply for first execution or property preservation, and get the life-saving money first. This is the most practical "fast lane" in marital support disputes, but the premise is that you can explain the urgency and necessity clearly.

Negotiation is just as important as avoiding pitfalls. If the other party refuses to support them on the grounds of "spending their own money", "you owe me money" and "the house is mine", these reasons are not legally tenable and can be clearly rejected without being led away. Attention should be paid to the distinction between marital support and financial assistance and compensation for housework during divorce, and not to paste into a ball in the same request, otherwise it is easy to be denied by the other party with "already given. If the other party refuses to pay while dragging the divorce, two lines can be pushed together: marital support as soon as possible, divorce procedures are prepared simultaneously, and the certainty of the procedure is used to force the other party back to the negotiating table. The amount of maintenance is determined according to the actual needs, the other party's ability and the local living standard. Instead of entangling "how much to give", it is better to make solid vouchers for each expenditure so that the amount can be based on evidence.

Marital support is a legal obligation. If one party is sick and has difficulties in life, the other party will give up, and the law will not sit idly. The party in need of support may not only ask the other party to pay maintenance fees, but also in case of emergency through first execution, property preservation first relief; if the other party "disappears" and refuses to contribute money, it may also face divorce damages and even criminal liability.

  • Advocating as early as possible, don't delay again and again because of "fear of being ugly" and "not yet divorced;
  • Fix evidence such as medical records, expense bills, income clues, chat or recording of refusal to support;
  • in case of emergency, apply for advance execution and property preservation simultaneously, and solve the urgent need first;
  • Make good use of legal aid and public legal service hotline for those with financial difficulties;
  • If divorce, compensation and property division are involved, plan together as much as possible to avoid repeated claims or omission of requests.