What is the impact of Ningbo derailment on the division of divorce property?

Ms. Zhao discovered that her husband had been unfaithful and is preparing to file for divorce. The question she is most concerned about is: can her husband's infidelity allow herself to divide more property when the property is divided? The conclusion should be divided into two layers: first, according to Article 1087 of the the People's Republic of China Civil Code, the division of the common property of husband and wife during divorce should be handled "according to the principle of taking care of the rights and interests of children, women and the innocent party". If one party's derailment constitutes a fault, the innocent party can request the court to give appropriate preference during the division; Second, the tilt ratio is limited, and there is no legal rule of "cheating" let the other party clean out, the court will take into account the degree of fault, the status of the common property discretion, generally will not let the wrong party completely separate the property. At the same time, in the case of legal fault (bigamy, cohabitation with others, domestic violence, abuse and abandonment, etc.), the innocent party may also claim damages separately.

1. legal basis: the boundary between the principle of taking care of the innocent party and the compensation for damages

Article 1087 of the Civil Code of the People's Republic of China stipulates: Upon divorce, the joint property of the spouses shall be dealt with by mutual agreement; if no agreement can be reached, the people's court shall make a judgment based on the specific circumstances of the property, in accordance with the principle of taking into account the interests of the children, the female party, and the party at no fault. Article 1091 stipulates that if one of the following circumstances leads to divorce, the innocent party shall have the right to claim damages: (1) bigamy; (II) cohabitation with others; (III) domestic violence; (IV) maltreatment or abandonment of family members; (V) other serious mistakes.

If we examine the two provisions separately, we can identify two distinct yet easily conflated levels: the “consideration” in the context of property division (Article 1087) and the “compensation” in the context of tort liability (Article 1091) constitute two separate mechanisms. The extent to which infidelity can trigger damages depends on whether it falls into the circumstances listed in Article 1091: bigamy and cohabitation with others are clear legal circumstances; General and occasional extramarital ambiguity, mental infidelity or even brief infidelity does not of course constitute "cohabitation with others" (usually requiring continuous and stable cohabitation), and whether compensation can be obtained at this time, it depends on whether it is deemed to have "other major faults"-in judicial practice, long-term stable derailment, derailment and having children with others may fall into the bottom clause.

It should also be clarified that claims for damages and claims for property-based relief may be asserted concurrently. The party not at fault may, either during the division of property or in the divorce proceedings, separately claim for damages; the two claims are not mutually exclusive. However, "care" does not mean "equal distribution of property in addition to the additional", the court's tilt is usually reflected in the specific division of the scheme of the non-fault party appropriate more points, the extent of the case-by-case discretion; and "damages" is an independent monetary payment, the amount of which is determined by the court in the light of the circumstances of the fault, the consequences of the damage, the economic situation of both parties.

Breakdown of 2. situations: different consequences for different degrees of fault

The circumstances of derailment vary greatly, and the legal consequences are also divided into echelons, which can be compared step by step according to the degree of fault:

1. Generally ambiguous, spiritually derailed (chatting ambiguous, dating alone but no cohabitation): It is often difficult to prove the existence of statutory fault, which typically does not affect the division of marital property and makes it challenging to obtain damages; such evidence is more commonly used to cast doubt on the judge’s determination of “irreparable breakdown of the marriage,” thereby increasing the likelihood of a divorce being granted on the first filing.
2. Persistent infidelity, cohabitation outside marriage (long-term stable living with others): It constitutes "cohabitation with others" in the second item of Article 1091 of the Civil Code. The party without fault can claim damages in the divorce and take care of the party without fault in the division of property.
3. Bigamy (re-registration of marriage or living together in the name of husband and wife): It belongs to the first item of Article 1091, and the criminal responsibility of bigamy can also be investigated; for the party without fault, the inclination of property division is usually greater except for damages.
4. Infidelity resulting in the birth of a child: This constitutes a serious offense and may be deemed as “other significant misconduct,” while also giving rise to multiple issues, including confirmation of the parent–child relationship, child support, and compensation.
5. cheating while hiding and transferring the common property of husband and wife: Article 1092 of the Civil Code stipulates that if one spouse hides, transfers, sells, destroys or squanders the common property of the husband and wife, or forges the joint debt of the husband and wife in an attempt to encroach on the property of the other spouse, it can be divided less or not during the division of divorce-this is often a greater impact on the property pattern than the derailment itself, and is a risk that must be focused in practice.

Composition, amount and evidence of 3. damages

Compensation for damages includes compensation for material losses and compensation for mental distress. Material damage compensation is aimed at the loss directly caused by the fault behavior (such as the payment for the third party, the economic loss caused by the fault); the compensation for mental damage is based on the circumstances of the fault, the consequences of the damage, the economic capacity of the wrong party, etc., and the amount of the judgment of the local courts It ranges from thousands of yuan to tens of thousands of yuan, and cases with bad circumstances such as bigamy, cohabitation and childbirth and childbirth may be awarded higher.

Evidence is the prerequisite for a claim to be substantiated. Fault evidence mainly includes: first, evidence of bigamy or cohabitation-common residence records (property, neighbor testimony, rental contract), photos and videos of joint activities in the name of husband and wife, and birth certificates of children born together; Second, transaction records-WeChat chat records, transfer records, and room opening records (which can be obtained through litigation application court); Third, self-confessed evidence-chat records, recordings, and guarantees that the other party admits to cheating. Electronic evidence must retain the original carrier, only screenshots without the original mobile phone and complete chain, the court review will be very strict, if necessary, can be notarized and fixed.

At the same time, it should be pointed out that the standards of evidence are different between claiming derailment and claiming damages. With only a few ambiguous photos or statements of "they eat together", it is difficult to meet the proof standard of "living with others"; If the evidence cannot be provided, the court will not support the claim for compensation and may also affect the judge's evaluation of the overall credibility of the statement. The divorce dispute between Chang and Meng tried by Ningbo Jiangbei Court is an example-the defendant claimed that the plaintiff derailed and transferred the property, but was not accepted by the court due to insufficient evidence.

4. Property Division Practice: Agreement Priority, Inclination Limited

In the division of property, the court first respects the agreement between the two parties-the clear arrangement of more points and less points in the divorce agreement. As long as it does not violate the mandatory provisions of the law, the court generally confirms it. If the agreement fails, it will enter the discretion of "taking care of the rights and interests of the children, the woman and the non-fault party": the placement of care can be specific arrangements such as property ownership, discount ratio, deposit distribution, etc., but the court will consider the source of property, contribution, family contribution, etc. at the same time, and will not simply operate according to a fixed ratio such as "40% of the fault party and 60% of the non-fault party", let the fault party get out of the fault party.

Practical suggestions for the no-fault party: firstly, systematically sort out the fault evidence and fix the original carrier before the lawsuit; secondly, apply for property preservation synchronously during the lawsuit to prevent the other party from transferring and concealing the common property during the lawsuit -- preservation is much more effective than recourse afterwards; thirdly, the property division clause in the divorce agreement should specify the specific property, vehicle and deposit list to avoid vague expression of future changes; fourthly, the claim for damages shall be proved item by item against the statutory circumstances of Article 1091 of the Civil Code, and, if necessary, apply to the court for access to the record of opening the house, bank flow, etc.

5. Burden of proof, boundaries of evidence collection, and key points for evidence preservation

The core of fault identification lies in the evidence, and the obtaining of the evidence must be legal. In practice, three boundaries need to be grasped: first, self-collection of evidence is limited to legal means-photographing the other party's behavior in public, keeping chat records in my account, and collecting transfer water are all legal; Evidence obtained by invading the other party's mobile phone, installing location, and breaking into a third party's residence may be excluded due to illegal evidence collection, and serious circumstances also involve tort liability. Second, electronic evidence should form a complete chain-WeChat chat records should be able to show the identities and timelines of both parties. It is suggested to keep the original carrier and fix it through the recording screen, notarization or court deposit platform. Only a few screenshots cannot prove the subject and continuity. Third, information involving other people's privacy, such as room opening records and bank running water, cannot be directly obtained by individuals, and should be obtained by the court according to law through the application for investigation and evidence collection in litigation, instead of obtaining it through gray channels.

At the property level, prevention of transfer is much more important than post-event recourse. Article 1092 of the Civil Code stipulates that if one party hides, transfers, sells, destroys, squanders the joint property of the husband and wife or forges the joint debt, the division may be divided less or not. If the other party is found to have signs of transfer, the prosecution shall apply for property preservation at the same time-after the preservation ruling is made, the other party's bank account, real estate and equity will be frozen and sealed up, and the transfer channel will be closed. Preservation needs to provide a guarantee, the amount is usually a reasonable proportion of the full target, can be through the insurance company issued a letter of guarantee and other ways to reduce the capital occupation. After the preservation is successful, the case goes to the substantive trial, and if the wrong party tries to make a surprise transfer before the preservation is lifted, it will directly trigger the "less divided" clause, which in itself is a bargaining chip.

also need to remind: the evidence standard of compensation for damages is different from that of property division, and those who claim compensation for damages should provide proof of the fault behavior and the legal situation one by one; those who claim more property division should focus on fixing the scope of common property and the transfer trace of the other party. When the two types of claims are put forward together, the list of evidence should be sorted out separately so that one will not lose sight of the other when cross-examined in court.

The time point and procedural details of the claim for 6. damages

The timing and procedure of claiming the right of claim for damages are prone to errors in practice, which are worth explaining separately. According to Article 1091 of the Civil Code, damages are based on the premise of "leading to divorce", so the no-fault party must propose in the divorce proceedings: as the plaintiff, he should claim together in the divorce proceedings, and the court usually does not support the claim for damages after the divorce-the complaint must include damages in the claim, not just "request for division of property according to law"; as a defendant and does not agree to divorce, did not file a claim for damages, can be claimed separately after the divorce judgment; If it is not filed in the first instance but only filed in the second instance, the court will mediate first, and if the mediation fails, the notice can be filed separately after the divorce.

The scope of the request includes material damage and moral damage. For the direct economic loss caused by the fault behavior, the material damage compensation shall specify the loss items and bills; the mental damage compensation shall be determined according to the fault circumstances, consequences and the bearing capacity of the fault party, and the compensation range of similar cases in the local court can be referred when claiming (there is a precedent for the compensation of tens of thousands of yuan in abominable cases such as bigamy, cohabitation and childbirth in Ningbo area), and combined with their own actual damage to put forward a reasonable amount-the claim is too high without proof, but may pull down the overall credibility of the referee.

It is also necessary to pay attention to the timeliness of evidence: chat records may be deleted, traces of common residence may disappear, witnesses may lose contact, and the best time to fix evidence is "the first time to find fault". For the parties preparing to sue, it is suggested that the fault evidence (original carrier + backup + notarization) and property evidence (running water + ownership) should be sorted out separately, and the prosecution should be submitted with the case to avoid hasty supplementary evidence before the hearing.

7. FAQ

Can cheating make the other party clean out of the house?

No. The law does not provide for "clean out of the house", the court can only be based on the principle of taking care of the no-fault party in the division of the appropriate tilt, the tilt is limited.

How much property can be divided in general derailment

There is no fixed ratio. Generally, allegations of “infidelity” that are ambiguous or based on insufficient evidence are unlikely to alter the division of marital property; only when there is legally recognized misconduct such as bigamy or cohabitation may the court significantly tilt the balance in favor of one party. Rather than relying on the expectation of a “larger share,” it is better to focus on defining the scope of the marital property and preventing the other party from transferring assets.

There are only a few ambiguous chat records, can you claim damages?

is difficult. Damages need to reach the level of legal fault (bigamy, cohabitation, domestic violence, abuse and abandonment or other major fault), and it is difficult to prove "cohabitation with others" by ambiguous chat alone ". Although such evidence can be used as supporting material for emotional breakdown, it is different from the evidentiary requirements of compensation claims.

The other party derailed and transferred the deposit, how to deal with it

Immediately apply for property preservation, freeze the other party's bank account and seal up relevant property to prevent the transfer from expanding; Fixed transfer evidence (large amount of transfer flow, abnormal cash withdrawal record), and claimed that the other party should have less or no division according to Article 1092 of the Civil Code when dividing; If the transfer occurs after divorce, another lawsuit can be filed for recourse.

8. Lawyer's Practical Insights

If your spouse has been unfaithful, whether you can receive a larger share of the marital assets depends on two factors. The first layer is the level of property division. The law requires that the rights and interests of the children, the woman and the innocent party be taken care of. If one party's derailment constitutes a fault, the court may give appropriate preference to the division. The second layer is the level of damages. In case of legal circumstances such as bigamy, cohabitation with others, domestic violence, abuse and abandonment, the innocent party may also claim compensation separately. However, it is necessary to establish a sober expectation: there is a limit to the tilt, there is no universal rule in law that makes one party completely indiscriminate, and it is not realistic to expect to divide all property.

The specific situation of derailment directly determines what can be claimed. Bigamy and cohabitation with others are clear legal circumstances, which generally require continuous and stable cohabitation. Occasional ambiguous and short-term derailment may not constitute cohabitation with others. Whether compensation can be obtained depends on whether it is recognized as other major faults. Therefore, the organization of evidence should be targeted: material that reflects the continuity and stability of the relationship carries more weight than an isolated chat record. Rely on the evidence to the standard of whether it meets the legal situation, and the claim will stand, otherwise it will be easy to idle.

When it comes to practice, the division of the agreement should still be given priority, and the success of the negotiation is often more flexible than the judgment; if the negotiation fails, you can enter the lawsuit again, and at the same time, you can deal with the boundary between proof and evidence collection, and the illegally obtained evidence may hurt you. Attention should also be paid to the timing and procedural details of the claim, so as not to miss the opportunity to claim because of procedural negligence. A more practical reminder is that instead of devoting all your energy to proving that the other party is derailed, it is better to keep an eye on property movements simultaneously to prevent the other party from transferring assets before the divorce, which tends to have a more direct impact on the final outcome.

The influence of derailment on the division of divorce property depends on the severity of the fault plot and the integrity of the evidence, and the overall pattern of "limited care and statutory compensation" is presented: general derailment is difficult to shake the proportion of property division, bigamy, cohabitation and other statutory faults can bring compensation and tilt, concealment and transfer of property can be claimed to be less divided. The advice to the non-fault party is to focus on three things-fixing the fault evidence (original carrier, complete chain), locking the common property (declaration and preservation), and settling the compensation claim (compared with the legal situation); At the same time, rational expectation should not be misled by the rumor of "leaving the house clean" and "more than half". It is more controllable through agreement than resorting to judgment. For the party who may be claimed to be at fault, the evidence of his contribution and contribution should be fixed in time to avoid being passive in the division due to the absence of evidence.