Insights

How to identify and deal with domestic violence and abuse in divorce in Ningbo

Ningbo Author：LuXu WANG

Ms. Zhou has long been subjected to physical and verbal abuse by her husband, has repeatedly called the police and sought medical treatment, and now wishes to file for divorce while also seeking clarification on the legal criteria for recognizing domestic violence and its associated consequences. To conclude: perpetrating domestic violence or abusing family members constitutes a legally recognized ground for divorce, and if mediation fails, the court shall grant the divorce; the non‑faulting party may seek compensation for damages resulting from the divorce and receive favorable treatment in the division of marital property and the custody of children; furthermore, a party who has suffered or faces an imminent risk of domestic violence may apply to the court for a personal protection order. Determining domestic violence hinges on evidence; police reports, warning letters, medical records, and injury assessment reports are all indispensable.

1. Legal criteria for recognizing domestic violence and abuse

Article 2 of the Anti-Domestic Violence Law stipulates that domestic violence refers to acts of physical, psychological, and other forms of harm perpetrated among family members through means such as beating, binding, maiming, restricting personal freedom, as well as through frequent verbal abuse and intimidation. According to this, domestic violence has at least three characteristics: first, it occurs among family members (for reference, such as daughters-in-law, son-in-law, stepparents and children living together); Second, the behavior is not limited to physical violence, but also includes mental violence such as frequent abuse and intimidation. In practice, economic control and tracking harassment are also included in the review. Third, it must reach a certain intensity or frequency, occasional spats and minor pushing do not generally constitute domestic violence in the legal sense.

Maltreatment has a slightly different emphasis in the context of criminal law and marriage and family law: in marriage and family law, maltreatment is the legal cause of divorce and damage compensation juxtaposed with domestic violence, which refers to physically and mentally destroying and persecuting family members who live together by means of beating, freezing and starving, confinement, forced excessive labor, not giving medical treatment when they are sick, restricting freedom, and humiliating personality, it has persistent and recurrent characteristics. One-time serious injury may constitute domestic violence or even intentional injury, while "long-term, repeated and abominable" torture is more likely to fall into the category of abuse. Serious circumstances also involve the crime of abuse in Article 2

60of the Criminal Law.

In terms of legal consequences, the third paragraph of Article 1079 of the Civil Code stipulates that divorce shall be granted to those who commit domestic violence or abuse or abandon family members and mediation is invalid; Article 1091 stipulates that those who commit domestic violence or abuse or abandon family members leading to divorce shall have the right to claim damages (including material damage and mental damage); Article 20 of the Anti-domestic Violence Law stipulates that, when hearing cases involving domestic violence, the people's court may determine the facts of domestic violence on the basis of evidence such as police records, warning letters, and injury appraisal opinions of public security organs.

2. Case Breakdown: Identification and Consequences of Different Forms of Violence

  1. Physical violence: beating, binding, maiming, and restricting personal freedom. The evidence chain is easiest to establish with: police report, medical examination, and injury assessment. If minor injuries or more are caused, the perpetrating party may also be punished by public security or even be held criminally responsible for the crime of intentional injury.
  2. mental violence: frequent verbal abuse, intimidation, insults, cold violence superimposed threat. The difficulty lies in the continuous proof, which needs to be fixed "frequently" by chat records, audio and video recordings, witness testimony, etc ".
  3. Economic control: Depriving a spouse of the right to know about and manage family assets, using the threat of cutting off financial support to compel obedience, etc. It often coexists with psychological violence and must be substantiated by bank transfer records and spending records to prove the existence of a controlling relationship.
  4. Sexual violence and marital coercion: sexual behavior against will, threatened by sexual humiliation, which is more difficult to obtain evidence in practice, but can also be included in the identification of domestic violence.
  5. Violence against minor children: one party acts violence against the children, and the other party claims direct custody when suing for divorce. According to the principle of "most beneficial to minor children" in Article 1084 of the Civil Code, the court usually does not award the children to the party who committed domestic violence.

3. List of evidence materials and procedural steps

The determination of domestic violence heavily relies on objective evidence. It is recommended to collect evidence according to the following checklist and proceed with the relevant procedures in the specified order:

  1. Call the police: call 110 at the first time and ask the public security organ to make inquiry records. If the circumstances are minor, ask them to issue a warning letter of domestic violence (Article 16 of the Anti-domestic Violence Law). If the circumstances are serious, they should be dealt with according to law;
  2. Seeking Medical Evidence: Seek medical attention promptly, retain your medical records, diagnostic certificates, and receipts for medical expenses, and take photographs of your injuries to preserve the original images.
  3. Injury Assessment: When necessary, apply to the public security organ for a commission or independently engage an assessment institution to issue an injury assessment opinion.
  4. the applicant for personal safety protection order: those who suffer from domestic violence or face real danger of domestic violence can apply for a protection order to the grass-roots court in the place where the applicant or the respondent's domicile and the place where the domestic violence occurs. The divorce lawsuit is not initiated as the premise, and the order is generally made within 72 hours after the court accepts the case, and 24 hours in case of emergency (Article 23 and Article 28 of Anti-Law of Domestic Violence; law Interpretation [2022] No. 17, which came into effect on August 1, 2022, further refined the rules of application and evidence);
  5. Secure other forms of evidence: audio and video recordings, WeChat chat logs (retain the original devices), witness statements, records of consultations with the residents’ committee and the Women’s Federation, and certificates from shelters.
  6. sue for divorce and claim damages: in the divorce proceedings, the claim for damages should be filed together. note that the claim for damages should be filed together in the divorce proceedings. if the party without fault acts as the defendant, it can sue separately after the divorce (article 88 of the civil code).

4. Analysis of Common Misconceptions

Misunderstanding 1: Domestic violence can only be considered as minor injury or intentional injury. Correct solution: minor injuries, mental violence and regular intimidation also constitute domestic violence in the legal sense. The minor injuries above are only the escalation node involving criminal responsibility, not the starting point of domestic violence.

Myth 2: “Just bear with it for the sake of the child.”Correct answer: A long-term environment of domestic violence poses a greater risk to the development and mental health of minor children, and domestic violence is both a legally recognized ground for divorce and an advantageous factor in seeking direct custody; delaying action will only make it more difficult to preserve evidence.

Myth 3: Compensation for domestic violence can be demanded without limit. positive solution: the amount of compensation for damages is determined by the court according to the degree of injury, medical expenses, mental damage consequences, the degree of fault and so on, and the claim that it is too high will affect the overall negotiation.

Misunderstanding 4: It is useless to call the police, the police can only mediate. Positive explanation: The police record and warning letter itself are the key evidence to identify domestic violence (Article 20 of the Anti-Domestic Violence Law). Even if no public security punishment is given, it is enough to prove the fact of violence.

Myth 5: One must first file for divorce before applying for a personal protection order.Correct answer: An application for a protection order is independent of divorce proceedings. When sufficient evidence is presented, the court will review it separately and issue a decision promptly, and may order the respondent to vacate the shared residence and prohibit harassment, stalking, or contact.

5. Scope, Calculation, and Procedural Boundaries of Damages

Compensation for divorce-related damages consists of two components: material damages and emotional distress damages. Material damage includes actual expenses such as medical expenses, lost work expenses, transportation expenses, nursing expenses and follow-up treatment expenses caused by domestic violence; compensation for mental damage is based on Article 183 of the Civil Code and the Supreme People's Court on mental damage The judicial interpretation of compensation, the severity of the infringement, the consequences caused, the degree of fault, the local living standard and other factors, and the amount of cases varies greatly. In the case of Meishan Court of Beilun District Court in Ningbo, the court decided to compensate 50000 yuan for damages in the case of bigamy and was upheld in the second instance, which can be used as a reference for local standards. However, there is no unified "price list" for mental damages in domestic violence cases, and it is not conducive to mediation to advocate abnormally high compensation.

There are three boundaries that must be noted in the procedure: first, according to Article 87 of the (I) of Interpretation of Marriage and Family in the Civil Code, the court will not accept the claim for damages without filing a lawsuit for divorce during the existence of the marriage relationship; the claim for damages will not be supported in the case that divorce is not allowed by the judgment-damages are attached to divorce. Second, according to Article 88, if the no-fault party is the plaintiff, it must make a request at the same time as the divorce proceedings. As a defendant who does not agree to divorce and has not filed damages in divorce proceedings, he may file a separate lawsuit after divorce. The law does not set a "within one year" limit for prosecution (except for those who explicitly give up when divorce is agreed, Article 89). Third, according to Article 90, if both husband and wife have the fault circumstances stipulated in Article 1091 of the Civil Code, neither party's claim for damages will be supported-it is difficult for the "victim at fault" to obtain compensation, and it is as important to fix the other party's fault as evidence that he or she has no fault.

Key points and time limit of application for 6. personal safety protection order

Personal safety protection order is the quickest judicial protection means for the victims of domestic violence. The subject of the application is a party who has suffered domestic violence or is in real danger of domestic violence; if the party is a person with no capacity for civil conduct, a person with limited capacity for civil conduct, or is unable to apply on his own due to coercion or intimidation, his close relatives, public security organs, women's federations, residents' committees, villagers' committees and rescue management agencies may apply on their behalf (Article 23, paragraph 2, of the Anti-Domestic Violence Law). The application need not presuppose the institution of divorce proceedings, nor does it require that it must have constituted a public order offence or a criminal offence.

procedural points: submit the application and preliminary evidence (alarm records, warning letters, medical records, injury photos, chat records, witness testimony, etc.) to the basic people's court in the place where the applicant's domicile, the respondent's domicile or the place where the domestic violence occurred; the court generally makes a ruling within 72 hours after accepting the case, and 24 hours in case of emergency (Article 28). The protection order may include the prohibition of domestic violence, the prohibition of harassment and tracking, the order to move out of the residence, the prohibition of approaching specific places, etc. (Article 29), and the validity period shall not exceed six months. Before the expiration, the protection order may apply for revocation, modification or extension (Article 30). If the respondent violates the protection order, the court may admonish, fine or detain him, and if the case constitutes a crime, he shall be investigated for criminal responsibility according to law (Article 34). The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Handling of Personal Safety Protection Order Cases (Fa Shi [2022] No. 17), which came into effect on August 1, 2022, further clarified that the proof of the fact of domestic violence can adopt a more flexible form of evidence, and refined the determination of "facing real danger.

Evidence organization and cross-examination response in 7. divorce proceedings

Domestic violence evidence should play the most important role and should not be submitted in a scattered way. It is suggested to organize according to "four groups of evidence": the first group of identity and relationship evidence (marriage certificate, household register), the second group of violence factual evidence (alarm record, warning letter, medical record, injury photo, appraisal opinion), and the third group of persistent evidence (multiple alarm receipt, medical record, abusive and intimidation content in chat record, witness testimony, used to prove "long-term recurrence" rather than occasional conflict), the fourth set of consequences evidence (psychological assessment reports, records of minors affected, missed work and medical expense bills). When all four sets of evidence are present, the court is in the best position to recognize domestic violence and grant the maximum relief, including damages, equitable distribution of marital property, and determination of child custody.

The cross-examination response when the other party denies domestic violence also has a routine to follow: first, the alarm record and warning letter are official documents with strong proof, so they can apply to the court to call the police station for filing; second, the other party advocates "just husband and wife quarrelling", and refutes their occasional arguments with repeated alarm, injury photos and time axis; third, the other party doubts that the medical record is self-seeking medical treatment and exaggerates the injury, use the injury description and medical records recorded in the police records to confirm each other; Fourth, if mental violence is involved, the time and frequency of chat records are used to prove "frequent abuse and intimidation". Need to be reminded: The determination of domestic violence is not based on public security penalties or criminal judgments. The court can directly determine the facts of domestic violence based on evidence such as police records, warning letters, and injury appraisal opinions in accordance with Article 20 of the Civil Code and the Anti-Domestic Violence Law. Do not give up proof because of "no filing.

8. Frequently Asked Questions

Does a single act count as domestic violence, can it be judged and divorced accordingly?

Occasional quarrelling and slight pushing generally do not constitute domestic violence; however, once causing obvious injury or serious violence, combined with other circumstances, may still be identified as domestic violence, which will be used as the basis for divorce.

The other party denies domestic violence—what should I do if all I have is my verbal statement?

It is difficult to obtain support based on oral statements alone. Objective evidence such as alarm records, warning letters, medical records, and injury identification should be supplemented. You can apply to the court to obtain alarm records, and if necessary, use family investigators, psychological assessments, etc. to assist in the investigation.

What kind of care can the victim of domestic violence get in terms of property and support?

Article 1087 of the Civil Code establishes the division principle of taking care of the rights and interests of children, women and the party without fault. The injured party of domestic violence is the party without fault and can claim appropriate multiple points; the party with domestic violence is usually at a disadvantage when fighting for direct custody.

The other party abused the child, not me. Can I divorce and take custody of it?

Yes. The use of violence against minor children also constitutes domestic violence, which not only serves as a statutory ground for divorce but also provides the court with a strong basis for awarding custody of the children to the other parent.

Can I claim damages after divorce?

Sure. If the no-fault party, as the defendant, fails to file in the divorce proceedings and does not agree to the divorce, it may file a separate lawsuit after the divorce. If the divorce agreement is not explicitly abandoned, it may also be sued in accordance with Article 1091 of the Civil Code (Interpretation 1, Articles 88 and 89).

9. Practical Insights from a Lawyer

Domestic violence and abuse are not the same thing, but the parties often use them together, resulting in the bias of the evidence. A serious beating may constitute domestic violence, while long-term, repeated and abominable beating, cold hunger and abuse are more likely to fall into the scope of abuse, and more emphasis is placed on continuity and regularity. So don't rush to a conclusion, but sort out your own experience according to the time and frequency: when did it start, how often, what forms, and whether there is mental intimidation and control.If we find the right judgment at this level, we will not go astray if we need any evidence and advocate in which direction.

Collecting evidence around continuity is the key to such cases. The receipt of the alarm and the record of receiving the alarm, the warning letter, the medical record and injury identification, the on-site photos and recordings are not enough to take them once. We should try our best to form a chain so that people can see that this is not an accidental conflict. Mental violence, in particular, depends on long-term traces: chats and recordings of repeated verbal abuse and intimidation, records of seeking help from relatives, friends or communities, women's federations, and proof that fear has affected work and life. It is a pity that many people only keep the most serious injury materials, but lose the traces of many times before.

When it comes to the court, the most common excuse for the other party is that the quarrel between husband and wife is not so serious. At this time, it is most effective to use the time line to speak: it is more powerful to arrange every event, every record and every medical treatment in sequence and correspond item by item than to repeatedly emphasize one's feelings. For those who claim compensation, they should remember to put forward it together in the divorce proceedings, and separate the requests for material loss and moral damage. At the same time, the personal safety protection order can be promoted simultaneously with the divorce proceedings, and the two lines support each other. Safety always comes before the evidence. If there is danger, evacuate first and then talk about other things.

The identification and treatment of domestic violence and abuse, the victory and the loser in the timeliness of the evidence and the initiation of the procedure: the alarm to leave marks, the medical treatment to obtain evidence, the timely application of personal safety protection order, the initiation of divorce proceedings and the claim for damages. Don't delay because of "family ugliness can't be publicized" or "for the sake of children". The damage of domestic violence environment to children's growth and their own rights and interests far exceeds expectations.