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The Determination Conditions, Compensation Standards and Evidence Collection of "Divorce Mental Damage Compensation" in Ningbo

Ningbo Author：LuXu WANG

“Compensation for mental distress in divorce represents an extension of tort law into the realm of family law and constitutes an important mechanism for marital redress. This article outlines the fundamental elements of divorce-related damages, the criteria for determining compensation, and the types of evidence that must be gathered, while also analyzing relevant case rulings to serve as a practical reference.”

The Concept of Compensation for Mental Damage in 1. Divorce

Compensation for mental damage in divorce means that during the existence of the marriage relationship, one of the spouses has committed bigamy, cohabitation with others, domestic violence, maltreatment, abandonment of family members, or other major faults, resulting in divorce, the party without fault has the right to claim Compensation for damages, the court shall determine that the wrong party compensates the innocent party for mental damage. Compensation for mental distress in divorce cases represents an extension of tort law into the realm of family law and constitutes an important mechanism for marital redress. According to\Article 86 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code and Article 1091 of the Civil Code \\The prescribed damages include material damages and moral damages. Where compensation for mental damage is involved, the relevant provisions of the “Interpretation of the Supreme People’s Court on Several Issues Concerning the Determination of Liability for Mental Damage in Civil Torts” shall apply. According to\Articles 1042, paragraphs 2 and 3, 1043, 1059, 1062, paragraph 2, of the Civil Code \\Both of them confirm the personal and property rights and obligations that husband and wife bear to each other. Both husband and wife should abide by them, be loyal to each other and care for each other. While enjoying rights, they must also perform their obligations in accordance with the law. During the subsistence of the marital relationship, any breach of such an obligation by either spouse inevitably constitutes an infringement upon the other spouse’s rights, thereby causing the latter to suffer both material and emotional harm. Therefore, according to\Article 1091 of the Civil Code \\and other relevant provisions, the fault party shall compensate the non-fault party for the damage suffered as a result of its illegal acts.

Determination of Compensation for Mental Damage in 2. Divorce

(I) Constitutive Elements

According to the provisions of Article 1091 of China's Civil Code and Articles 86, 87 and 90 of the (I) of the Supreme People's Court on the Interpretation of the Marriage and Family Code of the the People's Republic of China Civil Code, the following conditions shall be met at the same time:

  1. One party is at fault for divorce

One party's fault for divorce is one of the prerequisites for the non-fault party to file divorce mental damage compensation. First, it must be that the fault party has committed the damage act and is subjectively at fault. If the actor is not subjectively at fault, divorce damages are not applicable; second, it must be the fault of the fault party that leads to the divorce. If it is not the fault of the actor that leads to the result of divorce or the fault of the non-actor that leads to divorce, it does not apply to the moral damage compensation for divorce filed by the no fault party.

  1. The party at fault has committed an illegal act that endangers the marital relationship.

According to our country \\Article 1091 of the Civil Code\It is clearly stipulated that if there is bigamy, cohabitation with others, domestic violence, abuse, abandonment of family members or other major faults, resulting in divorce, the party without fault has the right to claim damages. Therefore, regardless of which of the aforementioned acts the faulting party has committed, the non-faulting party may bring a claim for compensation for mental distress in connection with divorce.

  1. The other party is not at fault.

According to Article 1091 of China's Civil Code, "the innocent party has the right to claim damages" and Article 90 of the Supreme People's Court's (I) for Interpretation on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code, "if both husband and wife have the fault specified in Article 1091 of the Civil Code, and one or both parties request divorce damages from the other party, the people's court will not support it, only the party who has not committed the wrongful act stipulated in the Civil Code has the right to claim damages and has the right to file a claim for damages for divorce. If both spouses have committed acts in violation of their marital or familial obligations, they do not meet the eligibility requirements for divorce-related damages and are not entitled to claim compensation or relief.

  1. The injurious act of the at-fault party caused the injurious result

According to Article 86 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code, only if the damage of the fault party actually causes material or moral damage to the non-fault party, the non-fault party can claim compensation, and if the damage result is not caused, no compensation is required.

  1. There is a causal relationship between the fault behavior and the damage result.

According to\Article 87 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 \\It is stipulated that the result of the damage must be caused by the fault damage act, that is, the fault party's behavior leads to the result of divorce, in order to produce the right of claim for divorce damages, no fault claims for divorce damages.

(II) specific circumstances

According to our country's...\Article 1091 of the Civil Code\It is stipulated that if one of the spouses has committed bigamy, cohabitation with others, domestic violence, maltreatment, abandonment of family members, or other major faults, resulting in divorce, the innocent party has the right to request damages.

  1. Bigamy.

Refers to the spouse and married to others, constitute bigamy.

  1. Living with others.

According to Article 2 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code, the situation of "cohabitation with others" refers to the continuous and stable cohabitation of a spouse and a heterosexual outside marriage, not in the name of husband and wife. However, cohabitation by a person who is already married with another person, even if not under the guise of marriage, likewise violates the principle of monogamy and constitutes an infringement upon the right to marital fidelity.

  1. Implementation of domestic violence.

According to Article 2 of the "Anti-Domestic Violence Law", domestic violence refers to physical and mental violations committed by family members by beating, binding, mutilating, restricting personal freedom, and frequent verbal abuse and intimidation. Domestic violence includes not only physical violence against family members, but also mental violence, also known as "cold violence".

  1. Abuse, abandonment of family members.

According to Article 1 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code, persistent and frequent domestic violence against family members constitutes abuse. For old, young, sick or other people who do not have the ability to live independently, the act of refusing to support them while having the obligation to support them constitutes the crime of abandonment. In addition, maltreatment and abandonment of family members in serious circumstances constitute a criminal offence.

  1. Other major mistakes.

According to the Civil Code and its relevant laws and regulations, in addition to the above four situations, such as adultery, prostitution, whoring, gambling, drug abuse and other fault behaviors of the party at fault can also be recognized as major fault behaviors in marriage, and the party without fault also has the right to file compensation for divorce mental damage. The people’s courts will also, based on the specific circumstances of the case and taking into account factors such as the nature of the fault and the consequences of the harm, determine whether the party at fault bears significant responsibility.

The proposal of compensation for mental damage of 3.

(I) proposed subject

The subject who has the right to file for damages for divorce is the no-fault party of the marriage. According to\Article 1091 of the Civil Code and Article 90 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code \\It provides that only no-fault has the right to file a claim for damages for divorce. If both parties are at fault, if one party or both parties file a request for divorce mental damage compensation to the other party, the people's court will not support it.

(II) the proposed object

After the marriage without fault party makes compensation for moral damage, the spouse shall bear the compensation for moral damage, that is, the party who committed the fault. Article 87, Paragraph 1 of the "Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China" clearly stipulates that the party liable for damages as prescribed in Article 1091 of the Civil Code is the spouse of the non-faulting party in the divorce proceedings. Where the party at fault has committed an unlawful act that has caused damage to the non-faulting party, it shall, in accordance with law, provide appropriate compensation.

(III) raised time

Agreed divorce and litigation divorce are two different kinds of divorce situations. The time limit for the wrong party to make compensation for moral damages is also different.

  1. divorce by agreement

For divorce by agreement, the time for the non-fault party to file for divorce damages shall be within one year after both parties go through the divorce registration procedures at the marriage registration authority, and the premise is that the non-fault party has not waived the right to divorce damages at the time of the agreement divorce. Its legal basis is according to\Article 89 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 \\It is stipulated that "after both parties have gone through the divorce registration procedures at the marriage registration authority, one party shall take \\Article 1091 of the Civil Code\If a request for damages is made to the people's court on the grounds of the provisions, the people's court shall accept it. However, if the parties have clearly stated that they have given up the request at the time of divorce by agreement, or if they have made the request one year after going through the divorce registration procedures, the people's court will not support it."

  1. Divorce Proceedings

In the case of a lawsuit for divorce, the time for the no-fault party to file divorce damages as the plaintiff or the defendant in the lawsuit is also different. (1) For the party without fault who is the plaintiff in a divorce lawsuit, according to…\Article 88 Paragraph 1 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 \\Provisions: If the non-fault party who meets the provisions of Article 1091 of the Civil Code, as the plaintiff, files a claim for damages to the people's court based on the provisions of this article, it must be filed at the same time as the divorce proceedings. (2) For the non-fault party as a defendant in the divorce proceedings, according to \\(I) of Interpretation of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code, Article 88, paragraphs 2 and 3 \\Provisions: In a divorce litigation case in which the no-fault party is the defendant as stipulated in Article 1091 of the Civil Code, if the no-fault party does not agree to the divorce and does not file a claim for damages based on the provisions of this article, it may be divorced. A separate lawsuit was filed in this regard within one year. However, in divorce proceedings in which the innocent party is the defendant, the innocent party in the first instance did not file a claim for damages based on Article 1091 of the Civil Code. If the case is filed during the second instance, the people's court shall conduct mediation. If the mediation fails, inform the innocent party to sue separately. However, if both parties agree to hear the case jointly by the people's court of second instance, the people's court of second instance may make the judgment together, otherwise the party without fault shall sue separately.

The Compensation Standard of 4. Divorce Mental Damage Compensation

According to Article 86 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Section of the the People's Republic of China Civil Code and Article 1091 of the Civil Code, damages include material damages and moral damages. Where compensation for mental damage is involved, the relevant provisions of the “Interpretation of the Supreme People’s Court on Several Issues Concerning the Determination of Liability for Mental Damage in Civil Torts” shall apply. According to Article 10 of the Supreme People’s Court’s “Interpretations on Several Issues Concerning the Determination of Liability for Mental Damage in Civil Tort Cases,” the amount of compensation for mental damage shall be determined based on the following factors: (I) the degree of fault of the tortfeasor, unless otherwise provided by law; (II) the specific circumstances such as the means, occasion, and manner of the infringement; (III) the consequences caused by the tortious act; (IV) the tortfeasor’s profit situation; (V) the tortfeasor’s financial capacity to bear responsibility; (VI) the average living standard in the jurisdiction of the court hearing the case. Through the China Judgments Online database, the author conducted a search on cases involving claims for compensation for mental distress in divorce proceedings across various regions. Case 1: Court: People’s Court of Laiwu District, Jinan City, Shandong Province; Case No.: (2021) Lu 0116 Min Chu 1948 Civil Judgment. In this case, both parties confirmed in their divorce agreement that the wife had engaged in an improper relationship with a third party, which led to the breakdown of the marital relationship. The defendant’s conduct caused the plaintiff mental trauma and emotional suffering. The plaintiff requested compensation for mental distress, and the court granted this request. However, the amount claimed by the plaintiff was deemed excessive. Taking into account the defendant’s degree of fault, her financial capacity to bear responsibility, and the local average standard of living, the court, in its discretion, awarded RMB 10,000. Case No. 2: Court—Panzhou People’s Court of Guizhou Province; Case Number—(2021) Qian 0281 Minchu 12771 Civil Judgment: As Jiang Mou2 is not the plaintiff’s biological child, this has caused emotional harm to the plaintiff. Taking into account the defendant’s degree of fault, their financial capacity to bear liability, and the extent of the plaintiff’s mental suffering, the court awards compensation for non‑pecuniary damage in the amount of RMB 20,000. Case 3: Court: Fuyong District People’s Court of Shenzhen City, Guangdong Province; Case No.: (2021) Yue 0304 Min Chu 47905 Civil Judgment. The defendant acknowledged in the divorce agreement that his unfaithful conduct during the marriage led to the breakdown of the relationship between the parties and ultimately resulted in their divorce, thereby causing the plaintiff certain emotional distress. Taking into account the terms of the parties’ agreed divorce and the defendant’s wrongful conduct, this Court, in its discretion, determines that the defendant shall compensate the plaintiff RMB 10,000 as damages for emotional distress. Case Four: Court: Intermediate People’s Court of Chenzhou City, Hunan Province Case Number: (2021) Xiang 10 Min Zhong 2775 Civil Judgment In this case, Huang claimed that Jiang should compensate her RMB 100,000 for damages arising from marital fault, which compensation includes compensation for the injury to her finger allegedly caused by Jiang’s violence. Huang filed a criminal action with a concurrent civil claim against Jiang for the crime of intentional injury, seeking compensation for both material and emotional damages resulting from the physical injuries. Therefore, filing another lawsuit in this case for the same losses would constitute a repetitive litigation. During the subsistence of the marital relationship between Jiang and Huang, Jiang maintained an improper relationship with another person outside the marriage. This wrongful conduct not only violated the legal obligation of spouses to be faithful to each other, to respect one another, and to care for each other, but also caused significant emotional and psychological harm to Huang. Taking into account the extent of Jiang’s fault, the specific circumstances of the case, the parties’ respective financial capacities to bear liability, and the fact that Jiang was not awarded any marital property in the divorce judgment, the court of first instance appropriately ordered Jiang to pay Huang damages in the amount of RMB 20,000, which is neither improper nor unreasonable. Therefore, based on the foregoing analysis, the amount of compensation for non-pecuniary damage is not a fixed sum; rather, it is determined on a case-by-case basis through a specific assessment of the particular circumstances. For cases involving serious circumstances and where the infringer has the financial capacity, higher damages may be awarded; conversely, in less severe cases, damages may be reduced, ranging from a few thousand yuan to tens of thousands, hundreds of thousands, or even millions of yuan. As for compensation for emotional distress in divorce cases, the parties may first negotiate the amount; if no agreement is reached, the court shall make a comprehensive determination based on the specific circumstances of each party and the particulars of the case.

Evidence Collection of 5. Mental Damage Compensation

(I) collection of evidence of bigamy and cohabitation

In the case of a legal marriage that has been issued a marriage certificate, the evidence that may be provided is the registration of the marriage or the forging of the marriage certificate or the birth certificate of the child born to another person. Collectible evidence includes forged marriage certificates, marriage registration certificates, and the like. Evidence that may be collected in cases of bigamy arising from a de facto marriage formed through cohabitation under the guise of a marital relationship includes: (1) surveillance footage from the residential community where the at-fault party and the third party reside together. (2) Witness testimony from nearby residents. (3) A certificate issued by the residents’ committee or the village committee confirming that the at-fault party is cohabiting with a third party. (4) The birth certificate of the child born to the at-fault party and the third party, as well as the medical consent form. (5) A guarantee or letter of repentance issued by the party at fault to the party not at fault, containing an admission that they have been cohabiting with a third party under the guise of a marital relationship. (6) Photographs and audio or video recordings of the party at fault living together with a third party. (7) Intimate WeChat chat logs, text messages, and other communications between the at-fault party and the third party.

(II) collection of evidence of domestic violence and abuse

For the collection of evidence of domestic violence:(1) It is best to have evidence of seeking help from public security organs, neighborhood committees, and women's federations to keep written materials, such as police records. (2) Audio and video recordings made during the domestic violence incident, as well as witness statements from family members and neighbors, may be used as evidence. (3) Keep the photos of your injuries (make sure your face is visible in the photos to confirm that it is you). (4) Evidence of medical examination (medical records issued by a physician, specifying the cause of injury) and injury assessment (an assessment may be conducted by a specialized institution). (5) If you have previously sought help for domestic violence, be sure to keep all relevant records.

(III) for gambling, drug evidence collection

(1) Collect audio and video recordings of the wrong party gambling and taking drugs. (2) Use recorded conversations and written affidavits as evidence of the at-fault party’s gambling or drug use. (3) The fact that the party at fault has previously been subject to administrative or criminal penalties for gambling or drug use may be submitted as evidence. (4) Evidence of the at-fault party’s gambling or drug use may be established through debts incurred as a result thereof, such as promissory notes, records of receipts, and transaction transfer records. However, the debts incurred by such party shall not be ratified, so as to avoid being subsequently recognized as joint debts. (5) Witness testimonies attesting to the faulting party’s drug use or gambling, as well as audio and video recordings of relatives and friends advising the party to quit gambling and stop using drugs, together with corresponding witness testimonies, may all be used as evidence to prove such gambling behavior. The stability of a marital relationship depends on the mutual fidelity, respect, and care that each spouse shows toward the other. If a spouse’s gross misconduct causes the breakdown of the marital relationship, the faulting party shall compensate the non-faulting party for any losses incurred. By requiring the payment of a certain amount in compensation for emotional distress arising from divorce, this constitutes a legal remedy for the party who was not at fault in the marital relationship. To a certain extent, it can alleviate the harm caused by the breakdown of the marriage and provide emotional solace to that party. For the party at fault, being required to pay a sum in connection with their wrongful conduct serves as both a sanction for their actions and a form of redress for the injured party, while also imposing a measure of restraint on their behavior. In this sense, the system helps maintain the stability of marriage and the family, safeguards human rights, upholds the principles of fairness and justice under the law, promotes adherence to public order and good morals, and further advances the development of a civilized family ethos within the framework of socialism.

Practical Experience of 6. Lawyers

In making this request, the misunderstanding is concentrated in two places: one is that as long as the other party is at fault, it will automatically be compensated; the other is that the amount can be called out by emotion. In practice, for a claim to succeed, it is generally necessary to satisfy several conditions simultaneously: the other party must have committed a legally recognized fault; that fault must be causally linked to the divorce; and the claiming party must not have engaged in similar misconduct. Simple incompatibility of personalities or a decline in affection does not qualify as such grounds. Therefore, first calmly assess whether the facts at hand constitute bigamy, cohabitation with another person, domestic violence, abuse, abandonment, or other serious misconduct, and then decide whether to raise them as separate claims in your lawsuit, rather than simply demanding “an explanation” in a vague manner.

The success or failure of this request is almost entirely dependent on evidence. It is suggested to sort it out in three categories: evidence of fault behavior itself, such as alarm and warning materials, medical treatment and injury records, rental and image materials of long-term stable cohabitation; Identity and relationship evidence, used to explain who the object is and how long it lasts; Consequence evidence, including records of separation, medical treatment and life affected. When preserving electronic evidence such as chat logs, transfer records, and travel itineraries, ensure both completeness and verifiability of the source—don’t just screenshot a few snippets that favor your case. Evidence collection must also be lawful; materials obtained through unlawful entry into someone’s residence or by other illegal means are likely to be excluded and may even lead to additional legal complications.

This request has a strict time point: it is usually the safest to sue together as a non-fault party. If you are in the position of defendant, do not agree to divorce and do not file it together, you will often be limited to file a separate lawsuit in the future, so you should think clearly in advance at which link to file it. There is no fixed standard for the amount; the court will determine it based on a comprehensive assessment of the degree of fault, the duration, the consequences, and the financial circumstances of both parties. Do not use the “market rates” circulating online as a basis for negotiation. The most effective leverage is rarely about shouting it from the rooftops; rather, it lies in its weight when it comes to securing a swift divorce and influencing the custody outcome. Using it judiciously is far more effective than making loud demands.