Insights

Can Ningbo's fault party sue for divorce?

Ningbo Author：LuXu WANG

A man comes in for advice. He wants to end the relationship and start over because his marriage has broken down due to infidelity. But he was worried: if he was the fault party, would the court not accept my lawsuit because of my fault? Or even if it was accepted, it would not allow divorce because of my fault? This kind of worry represented the common confusion of many fault parties.

1. legal basis

article 1079 of the the People's Republic of China Civil Code: If one of the spouses requests a divorce, the relevant organization may mediate or directly file a divorce lawsuit with the people's court. In handling divorce cases, the people's court shall conduct mediation; if the relationship has indeed broken down and mediation is invalid, the divorce shall be granted.

Article 63 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Part of the the People's Republic of China Civil Code: If the people's court hears divorce cases and conforms to the third paragraph of Article 1079 of the Civil Code, "divorce shall be granted", it shall not be forbidden to divorce because the parties are at fault.

Article 1087 of the the People's Republic of China Civil Code: At the time of divorce, the common property of the husband and wife shall be disposed of by agreement between the two parties; if the agreement fails, the people's court shall, in accordance with the specific circumstances of the property, take care of the rights and interests of the children, the woman and the innocent party. The principle of judgment.

Article 1091 of the the People's Republic of China Civil Code: If one of the following circumstances leads to divorce, the innocent party has the right to claim damages: (1) bigamy; (II) cohabitation with another person; (III) domestic violence; (IV) maltreatment or abandonment of family members; (V) other serious faults.

2. core points

1. The wrong party has an equal right to sue for divorce.

The right to divorce proceedings is a legal right enjoyed by both husband and wife and is not deprived of it because of the fault of one party. In the civil field, the breaching party of the contract cannot sue for the termination of the contract because of its breach of contract, but the marriage relationship is different from the contract relationship, and the freedom of divorce is an important part of the principle of freedom of marriage. Therefore, even if one party has faults such as infidelity and domestic violence, he still has the right to file a divorce lawsuit in the court, and the court should accept it in accordance with the law.

2. The court shall not rule against divorce because the parties are at fault.

The judicial interpretation clearly stipulates that in the case of "divorce should be granted" (such as bigamy, domestic violence, separation for two years, etc.) in accordance with the third paragraph of Article 1079 of the Civil Code, the court shall not deny divorce because of the fault of the parties. In other words, if the relationship has indeed broken down and meets the legal conditions for divorce, even if the plaintiff is the wrong party, the court should still decide the divorce.

3. The wrong party may bear adverse consequences in the division of property and compensation.

Although the right of the wrong party to sue is not affected, the wrong act will have adverse consequences in the division of property and damages. When the court divides the common property, it will make a judgment in accordance with the principle of "taking care of the rights and interests of the children, the woman and the innocent party", and the wrong party may divide the property less. In addition, the no-fault party may claim damages, including material damages and moral damages, in accordance with Article 10

91of the Civil Code.

3. boundary conditions

  • the fault party's active admission of fault may relieve the other party of the burden of proof of the fault fact (self-admission rule), resulting in easier access to compensation for the no-fault party.
  • If the wrong party voluntarily waives part of its property interests in the prosecution and reaches a divorce agreement with the other party, the court will usually respect the agreement between the parties.
  • When the fault party sues for divorce, if the non-fault party firmly disagrees with the divorce and believes that the relationship has not been broken, the court may still rule that the divorce is not allowed (except in the case of legal divorce)

4. operational steps

1. For the wrongdoer (plaintiff):

  1. there is no need to deliberately avoid your own fault when prosecuting, but you should pay attention to your words and avoid making self-admissions that are unfavorable to you in court.
  2. Be prepared to make concessions on the division of property and offer a division plan in favor of the other party, which will help to facilitate mediation or win the favor of the judge.
  3. If the other party claims damages, it shall assess whether the evidence of the other party is sufficient and, if necessary, negotiate the amount of compensation.
  4. If the other party does not agree to divorce, it is necessary to prove that the relationship has broken down, such as the fact of separation, records of many quarrels, testimony of relatives and friends, etc.

2. For the non-fault party (defendant):

  1. after receiving the complaint, decide whether to agree to divorce: if so, focus on claiming property division and damages.
  2. Collect evidence of the other party's fault (chat records, photos, alarm records, hospital diagnosis, etc.) to prepare for damages and multiple property. According to the Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence has many defects in proof and is difficult to be accepted. Chat records should keep the original carrier and present the context in full.
  3. Clear claim for damages during the defense period to avoid the omission of the right
  4. if you do not agree to divorce, you should prove that the relationship has not broken down, but note that if the legal divorce situation is met, the court may still award a divorce.

5. common mistakes

myth 1: "I am the wrong party, the court will not accept my lawsuit"

error. The right to sue for divorce is a legal right and is not deprived by fault. As long as the conditions for prosecution are met (there are clear defendants, specific claims, jurisdiction of the court to be sued, etc.), the court must accept it.

Myth 2: "If the fault party sues for divorce, the court will definitely not leave"

error. The judicial interpretation clearly stipulates that if the legal divorce situation is met, the divorce shall not be allowed due to the fault of the parties. If the relationship has indeed broken down, the court will still order a divorce.

Myth 3: "If the fault party sues, I will not agree to divorce and drag him to death"

error. If the legal divorce situation is met, the court may still award a divorce even if the defendant does not agree to the divorce. Delaying litigation not only consumes the energy of both parties, but also may miss the opportunity to negotiate for favorable conditions.

Practical Experience of 6. Lawyers

when the parties who are at fault such as infidelity and domestic violence come to consult, they are most worried about "if I am wrong, will the court not accept it, or simply judge me not to leave". The experience of handling cases can first give them a reassurance: the wrong party in the marriage also has the right to sue for divorce, and the court cannot refuse to accept or refuse to divorce just because one party is at fault. Fault affects the consequences, not the right of action itself-there may be less on the division of property, and the innocent party may also claim damages. It is the most basic idea of this kind of case to separate the two things of "can we leave" and "how to divide the separation.

As the party at fault, the focus of this lawsuit is to make it clear that "feelings have indeed broken down" and organize the evidence, rather than avoiding their own problems. In practice, it is better to face up to the possible consequences of the fault than to think that it is "hidden": once the other party claims damages, the division of property may also tilt to the no-fault party, which should be expected and planned in advance, such as the less controversial part of the first consultation, to avoid a full-scale exchange of fire in court. Remember not to transfer or conceal property in order to retaliate or delay, which will only make the situation that is already unfavorable to you worse.

On the no-fault side, the fact of fault is not just a moral evaluation, but a bargaining chip that can be used. It is not only related to the claim of damages, but also may affect the tendency of care in the division of property, but also affect the judgment of custody. In practice, the evidence of legal fault should be fixed and solid, and the claim for compensation should be put forward together in the complaint and the trial to avoid omission. Negotiations can also set conditions around the weakness of the other party's concern to turn "fault" into real benefits. At the same time, exercise restraint-emotional accusations cannot replace evidence. The most important counterattack is to prepare the demands and basis that can fall on paper.