Insights

Can Ningbo's fault party sue for divorce counterclaim?

Ningbo Author：LuXu WANG

A client came to consult that her husband was the wrong party in the marriage. He not only cheated, but also took the initiative to sue the court for divorce. She felt very angry and wanted to make a counterclaim to make the other party "pay the price". But what she is not sure about is: can the defendant file a counterclaim in a divorce case? If not, how can he effectively defend his rights?

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.

Article 54 of the the People's Republic of China Civil Procedure Law: The plaintiff may waive or change his claim. The defendant may admit or refute the claim and has the right to file a counterclaim.

Article 233 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law: The parties to a counterclaim shall be limited to the scope of the parties to this claim. If the counterclaim and the claims of this suit are based on the same legal relationship, there is a causal relationship between the claims, or the counterclaim and the claims of this suit are based on the same facts, the people's court shall hear the case together.

2. core points

1. The counterclaim system does not apply to divorce cases.

In divorce proceedings, the defendant cannot file a counterclaim. This is because divorce litigation belongs to status relationship litigation and has particularity: on the one hand, the right to request divorce is a right enjoyed by both husband and wife, and either party can sue as a plaintiff; on the other hand, if counterclaims are allowed, theoretically, both parties may appear The situation of suing each other and requesting divorce from each other leads to confusion in litigation logic. Therefore, in judicial practice, the counterclaim system is not applicable in divorce cases, and the defendant can only participate in litigation through defense and independent claims. The People's Court of Zhejiang High Court's "Answers to Several Questions Concerning the Trial of Marriage and Family Cases" (Gao Fa Min -1 [2016] No. 2) also made it clear that the divorce suit was a compound suit, and the defendant's request for the division of common property did not need to file a counterclaim, which was consistent with the above-mentioned caliber.

2. The defendant shall safeguard his rights and interests through defense and evidence.

Although no counterclaim could be filed, the defendant was not passively beaten in the divorce case. The accused may, by written pleadings or in court, present his claim on the following issues:

  • whether to agree to divorce: if not, should prove that the relationship between husband and wife has not broken down.
  • Division of property: put forward their own opinions on the division of common property and submit relevant evidence.
  • Child support: claim custody or visitation rights, and explain your own support conditions
  • fault compensation: if the other party has bigamy, cohabitation with others, domestic violence, abuse and abandonment of family members and other fault situations, they can file a claim for damages in divorce proceedings.

3. The prosecution of the wrongdoer does not affect the division of property and the claim for compensation.

Article 1087 of the Civil Code stipulates that at the time of divorce, the joint 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. judgment. Article 1091 stipulates that if a divorce is caused by one of the following circumstances, the innocent party has the right to request damages: (1) bigamy; (II) cohabitation with another person; (III) domestic violence; (IV) maltreatment or abandonment of family members; (V) other major faults. Thus, even if the fault party is the plaintiff, the non-fault party as a defendant can still claim multiple points of property and damages in the same action.

3. boundary conditions

  • if the defendant files separate divorce proceedings, the two cases may be heard together by the same court, but this is not a counterclaim, but two separate claims.
  • If the defendant makes a claim for damages, it shall be filed together in the divorce proceedings, and if a separate lawsuit is filed after the divorce, the court shall generally not accept it.
  • If the defendant only agrees to divorce in his defense but does not claim the division of property or child support, the court will still hear and make a judgment on the above issues in accordance with the law.

4. operational steps

for the defendant (no fault party):

  1. after receiving the complaint, submit a written defense within the 15-day defense period to clarify whether the divorce is agreed and the reasons
  2. collect evidence of the other party's fault (such as chat records, photos, alarm records, hospital diagnosis certificates, etc.) to prepare for damages claims.
  3. Sort out the list of joint property of husband and wife, including real estate, vehicles, deposits, equity, creditor's rights and debts, etc., and submit relevant certificates of ownership.
  4. If child custody is claimed, prepare proof of income, proof of living conditions, evidence of child care, etc.
  5. Clear request in the trial: if the divorce is agreed, the property division plan, the ownership of custody and the amount of damages should be clearly stated.

5. common mistakes

1. "If the other party is at fault and still sues for divorce, I can counterclaim and ask him to withdraw the lawsuit"

error. There is no counterclaim system in divorce cases, and the defendant cannot "counterattack" the plaintiff through counterclaims. The correct approach is to actively reply, provide evidence, and claim their legitimate rights and interests in litigation.

2. "The defendant can only respond passively and cannot make any demands"

error. The defendant can put forward his own claims in the defense, including not agreeing to divorce, asking for more property, fighting for custody, asking for damages, etc. The court will examine the claims of both parties and make a judgment in accordance with the law.

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

error. If the relationship between husband and wife has indeed broken down, even if the defendant does not agree to divorce, the court may still decide to divorce if the legal conditions are met. Delaying proceedings not only consumes time and energy, but also may miss the opportunity to negotiate favourable terms.

Practical Experience of 6. Lawyers

there is no counterclaim in a divorce case, and the defendant cannot file another counterclaim against the plaintiff's divorce request. This is not a temporary limitation in procedure, but because the divorce lawsuit is a compound lawsuit, the division of property and the maintenance of children can be dealt with together in this lawsuit, and there is no need to set up another counterclaim. Therefore, when the wrong party takes the initiative to sue for divorce and you want to counterclaim to make him pay the price, the correct way is to put forward your claim as an independent request in this lawsuit, instead of worrying about whether you can counterclaim the action itself. In the right direction, the program will not run for nothing.

How to do it, according to your appeal: if you don't agree to divorce, you can reply and submit evidence that your feelings have not broken down and there is still a possibility of peace, and persuade the court not to judge the divorce first; If you agree to divorce but want to fight for property and children, you will put forward a request for property division, custody and alimony in your defense, submit the evidence together, and the court will handle it in the same case. If the other party is at fault and claims damages, it is also clearly put forward and proved in this lawsuit, rather than waiting for the departure to be completed before another case. Don't confuse whether to make a request or not with whether to make a counterclaim. What should be written into the claim must be written into it, otherwise it may be regarded as a waiver.

There is a layer of policy beyond the program. The fault party often wants to control the rhythm first, including property, children and public opinion, so the defendant should make preparations earlier: the evidence should be fixed early, especially the materials that can reflect the fault, property status and upbringing conditions of the other party; Property clues should be found out in advance to prevent the other party from transferring before and after the lawsuit. Respond to the other party's litigation requests one by one, and do not allow its unilateral narrative. Putting the claim in this lawsuit and putting the evidence in front of the court is the practical point of dealing with the situation in which the wrong party sues first, rather than hoping for a counterclaim system that does not exist.