#Child support agreed upon in divorce, how is "independent living" calculated?
Compiled from: Yantai Intermediate People's Court
After parents divorce, they should pay child support for their minor children, which is already a general social consensus; but whether they still have an obligation to support adult children, and how long they should bear this obligation, is in question.
Case review
The applicant for enforcement, Jiang, is the daughter of Chen and the respondent Jiang. Chen and Jiang got divorced through mediation at Fushan Court in 2021, and their daughter Jiang was 19 years old at that time. Both parties agreed that starting from January 2022, Jiang would pay Jiang a monthly living allowance of 1,000 yuan until Jiang became independent. In 2023, Jiang applied to Fushan Court for compulsory enforcement, requesting Jiang to pay her five months of living expenses as agreed, and Fushan Court filed the case for enforcement according to the law.
During the execution process, Jiang believed that Jiang had already reached the age of eighteen and that he should no longer be responsible for paying for his living expenses. In this case, the parties' expression of intent in the civil mediation document stating 'until Jiang can live independently' has become the focal issue in the execution of this case.
After communicating with both parties, the applicant, Jiang, provided the Fushan Court with proof that he is currently enrolled in university, confirming that he is receiving full-time undergraduate education; the respondent, Jiang Moumou, again clearly stated that he is willing to bear Jiang's living expenses until he completes his full-time undergraduate education. Upon review, the Fushan Court held that when Chen Moumou and Jiang Moumou divorced, their daughter Jiang was already 19 years old. Despite knowing that his daughter was an adult and in good health, Jiang Moumou still agreed to pay her living expenses. The agreement between the parties does not fall under any legal prohibition and reflects the genuine intention of both parties, and thus should be supported. Ultimately, the respondent, Jiang Moumou, proactively transferred the living expenses to Jiang's account.
Civil Code of the People's Republic of China
[6] Article 1067
If parents do not fulfill their duty of support, minor children or adult children who cannot live independently have the right to request that their parents provide support. If adult children do not fulfill their duty of filial support, parents who lack the ability to work or are in financial difficulty have the right to request that adult children provide support.
Article 1085
After divorce, if the children are directly raised by one party, the other party shall bear part or all of the child support. The amount and duration of the support shall be agreed upon by both parties; if they cannot reach an agreement, it shall be determined by the people's court. The agreement or judgment stipulated in the preceding paragraph does not prevent the children from reasonably requesting from either parent an amount exceeding that originally specified in the agreement or judgment when necessary.
Supreme People's Court Interpretation (I) on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China
Article 41
Adult children who are still receiving high school or lower education at school, or who are unable to maintain a normal life due to the loss or partial loss of labor capacity and other reasons not due to their own will, can be recognized as 'adult children who cannot live independently' as stipulated in Article 1067 of the Civil Code.
[6] Article 42
Article 1067 of the Civil Code refers to 'child support', which includes expenses such as children's living expenses, education expenses, and medical expenses.
[1] The author's perspective
The legal provisions on child support only set the minimum statutory obligations of parents and do not exclude the parents’ voluntary contractual obligations to support their adult children. In judicial practice, if the children are minors at the time of the parents' divorce and the parties agree to provide support until the children can live independently, the 'incapability of independent living' should be determined according to Article 41 of the Judicial Interpretation (I) on Marriage and Family. If the children are already adults at the time of the parents' divorce and the parties agree to provide support until the children can live independently, the recognition standard should be based on the mutual intention of the parties.
