The Applicable Conditions and Amount Determination of Compensation for Divorce Damage in Ningbo

A woman consulted: her husband was cohabiting with others in marriage, and she wanted to sue for divorce and claim compensation. She has heard that the non-fault party may claim compensation for emotional distress, but she cannot clearly explain what conditions must be met, how much compensation can be awarded, or when such a claim should be filed to be effective. Conclusion First: Divorce damages are only applicable to legal circumstances such as bigamy, cohabitation with others, domestic violence, abuse and abandonment of family members and "other major faults" stipulated in Article 1091 of the the People's Republic of China Civil Code. The amount of compensation is determined by the court's comprehensive fault degree, damage consequences, economic capacity of both parties and local living standards, and both material damage and mental damage can be claimed. It is particularly important to note that this request is subject to strict procedural requirements regarding the timing of its submission; failure to comply with these requirements, whether by missing the deadline or by using an improper procedure, may result in the loss of rights. This paper systematically combs the four dimensions of applicable conditions, proposed time, amount determination and evidence preparation.

1. Conditions of application: five statutory faults and four elements.

Article 1091 of the the People's Republic of China Civil Code stipulates: "If one of the following circumstances leads to divorce, the innocent party has the right to claim damages: (1) bigamy; (II) cohabitation with others; (III) domestic violence; (IV) maltreatment and abandonment of family members; (V) other serious faults. "Article 86 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 clarifies that the damages include material damages and mental damages; if mental damages are involved, the relevant judicial interpretation of mental damages applies. Provisions. To dismantle the establishment requirements, four points must be met at the same time: first, the fault is legal-it must be the situation listed in article 1091. general infidelity, ambiguity, one-night stand, etc., if it does not constitute "cohabitation with others" or is not recognized as "other major faults", it is difficult to obtain support; "Cohabitation with others" means that the spouse and the heterosexual outside marriage do not live together continuously and stably in the name of husband, occasional and one-off improper relationships usually do not meet this definition, but can be claimed according to the "other major faults" clause. Second, causality-fault behavior must lead to divorce, and there must be a direct connection between fault and marriage breakdown. Third, the subject is qualified-the subject of the claim right is the fault-free party, which can only be claimed to the spouse of the fault party, not to a third party; Both parties are at fault (if both parties are cheating), neither party can claim damages; fourth, divorce is the prerequisite-Article 87 of the Interpretation (I) stipulates that the request for damages shall not be supported in cases where the divorce is not allowed by the judgment; during the existence of the marriage relationship, the people's court shall not accept the request for damages without filing a lawsuit for divorce. In addition, Article 4 of the (I) of Interpretation clearly states that if the parties bring a lawsuit only on the basis of Article 1043 of the Civil Code (husband and wife shall be faithful to each other), the people's court will not accept it. If it has already accepted, it will be ruled to reject the lawsuit-"duty of loyalty" cannot be used as the basis for claim alone, and must fall into the legal situation of Article 1091.

2. proposed time: three kinds of identity three kinds of rules

The timing of exercising the right to claim damages directly determines whether the right can be realized; in practice, there are three scenarios:

1. No-fault party files divorce proceedings as plaintiff: It must be raised concurrently with the divorce proceedings (Interpretation (I), Article 88, Paragraph 1); it cannot be asserted through a separate lawsuit after the divorce judgment has been rendered.
2. No-fault party as defendant in divorce proceedings: If it does not agree to divorce and does not claim for damages, it can bring a separate lawsuit for this; If it is not brought up in the first instance and is only brought up during the second instance, the court shall mediate first, and if the mediation fails, it shall be informed to sue separately, except that both parties agree to hear the case together by the second instance (paragraphs 2 and 3 of Article 88 of the (I) of Interpretation).
3. Claim after divorce by agreement: If the parties request for damages on the grounds of Article 1091 of the Civil Code after divorce registration in the marriage registration office, the court shall accept it, but those who have clearly expressed their abandonment of the request will not support it (Article 89 of the (I) of Interpretation). In particular, it should be noted that the original judicial interpretation of the Marriage Law (II) stipulated that divorce by agreement must be filed within one year. In the era of the Civil Code, the "one-year" limit has been deleted. Now, according to the general rule of three-year limitation of action, it is counted from the date when the right is infringed or should be known. If the agreement explicitly waives it, it cannot be claimed.

Practice tips: no matter what kind of identity you claim, you should fix the request as early as possible before and after the start of the divorce procedure to avoid the loss of rights due to the timing error of the procedure; at the same time, you should pay attention to keeping the evidence of "not giving up the right" to prevent the other party from explicitly giving up the claim.

3. Amount determination: There is no "fixed price"; only a comprehensive discretionary determination.

The law does not prescribe a fixed amount or percentage for damages in divorce cases. Material damages are calculated according to the facts, such as medical expenses, lost work expenses, nursing expenses, reasonable expenses arising from evidence collection, etc., which are claimed by the bill: the degree of fault of the at-fault party (bigamy, cohabitation and general infidelity are obviously different), the means and occasions of infringement, the duration and consequences of the fault, the economic capacity of the at-fault party, the average living standard of the place where the court is sued, and the degree of moral damage caused to the non-fault party. In judicial practice, the common range of compensation for mental damage ranges from several thousand yuan to tens of thousands of yuan, and it is also common in Ningbo area to have a higher judgment when the circumstances are serious; a very small number of cases causing serious consequences (such as extramarital childbirth, public humiliation, leading to mental illness) may reach a higher level. The parties should have reasonable expectations: arbitrarily claiming hundreds of thousands in compensation for emotional distress is unlikely to be fully upheld without supporting evidence. It should also be noted that damages and property division are two sets of systems: property division applies the principle of "taking care of the rights and interests of children, women and the innocent party" (article 1087 of the Civil Code), and damages are an independent remedy for statutory fault, both go hand in hand, but neither can be a tool for "letting the other party out of the house.

4. Key points of evidence presentation and list of evidence

The burden of proof regarding the facts of negligence is the core difficulty in such cases. It is suggested to classify and fix the evidence around the legal situation: for bigamy and cohabitation-living together, living records, water and electricity payment, witness testimony of neighbors, photos and videos of participating in activities in the name of husband and wife, birth certificates of births outside marriage, etc.; for domestic violence-alarm records and public security warnings, hospital medical records of injuries, photos of injuries, women's federations and community mediation records;Regarding general adultery as “other serious misconduct”-WeChat chat records (keeping the original carrier), ambiguous photos, hotel room opening records (applying for court investigation order), transfer records, etc., need to form a chain of evidence rather than a single point of evidence; for abuse and abandonment-witness testimony, grass-roots organization records, living vouchers during the abandoned period. The legality of evidence is equally important: Evidence obtained through unlawful entry into another person’s residence, the installation of eavesdropping or surveillance devices, or the theft of account credentials may be excluded on the grounds that it seriously infringes upon the legitimate rights and interests of others (Article 106 of the Interpretation of the Civil Procedure Law). Upon completion of evidence collection, the evidence shall be categorized, numbered, and listed; it shall then be submitted within the prescribed period for presenting evidence, with an explanation provided for each item regarding its relevance to the facts to be proven.

5. Common Misconceptions

Myth 1: As long as the other party cheats, you can claim hundreds of thousands in compensation. Positive explanation: it must constitute a statutory fault situation, and the amount is determined by the court's comprehensive fault degree, economic capacity and local living standards, which usually does not give high support; generally, it is difficult to reach the threshold of compensation for ambiguous chat.

Misunderstanding 2: No compensation is mentioned when divorce is agreed, and you can sue at any time afterwards.Correct answer: After a divorce by agreement, one may still assert the claim (the one-year limitation in the old judicial interpretation has been deleted in (I)), but it must be raised within the three-year statute of limitations, and the party must not have explicitly waived this claim in the agreement.

Misunderstanding 3: You can only sue for damages without divorce.Correct answer: Compensation for damages in divorce is premised on the dissolution of the marriage; if a party does not file for divorce but instead brings a separate claim, the court will not accept the case. Remedies for fault during the marriage are primarily pursued through other means, such as marital property agreements or division of property within the marriage.

The connection between 6., housework compensation and financial assistance

Divorce relief is more than one track of damage compensation, which is often advocated in parallel with other two systems in practice: First, compensation for housework-Article 1088 of the Civil Code stipulates that if one spouse bears more obligations due to raising children, taking care of the elderly and assisting the other spouse in his work, he has the right to claim compensation from the other party during divorce. The specific measures shall be agreed by both parties, and the court shall decide if the agreement fails. In the divorce case of Beilun Meishan Court, the innocent party received 150000 yuan in economic compensation in addition to the damages, that is, the application of this article. Second, economic assistance—Article 1090 of the Civil Code provides that, upon divorce, if one party is experiencing financial hardship, the other party who has the capacity to provide shall render appropriate assistance. The positioning of the three systems is different: compensation for damages and punishment for faults, compensation for housework and balanced payment, and financial help for difficulties. They do not conflict with each other. They can be listed separately in one case, but each must have corresponding evidence-fault evidence, payment evidence and difficulty evidence. What needs to be reminded is that the subject of the right to claim damages is limited to the no-fault party, while housework compensation and financial assistance are not based on the fault of the other party, and advocate a wider path-do not only focus on "how much to compensate" when divorcing, but omit "how much to compensate and how much to help".

7. Frequently Asked Questions

What evidence is needed for the determination of domestic violence? Can the police station prosecute if it didn't deal with it at that time?

Alarm records, warning letters, injury examination records and medical records, injury photos and witness testimony can all be used as evidence of domestic violence; whether the police station issues warning letters or administrative punishment decisions does not affect the civil determination of domestic violence, and the court can make a comprehensive judgment based on the evidence in the case. If you failed to report the incident to the police in a timely manner, you should promptly obtain a medical assessment of your injuries and retain your medical records; the more recent the documentation, the stronger its evidentiary value.

what is the difference between "cohabitation with others" and common derailment?

The legal "cohabitation" requires the spouse and the heterosexual outside marriage not to live together continuously and stably in the name of husband and wife, emphasizing the continuity of time and the stability of life; one or several occasional infidelity does not constitute cohabitation. Although the latter cannot fall directly into the (II) of article 1091, it may be claimed to be "other major faults" in the light of the circumstances, or to claim to take care of the innocent party in the division of property on the grounds of fault.

If you forget to mention damages in divorce proceedings, can you remedy it?

It depends on the status: if the plaintiff fails to propose in the divorce proceedings, he will lose the opportunity to claim in the case in principle; if the defendant fails to propose in the first instance and proposes in the second instance, he may require the court to mediate, and if the mediation fails, he may sue separately; if the divorce is agreed, he may sue separately within the three-year limitation period except for the explicit waiver.

If both parties have been unfaithful, can they still claim damages?

No. The damage compensation system protects the no-fault party, and if both parties have a statutory fault situation, neither party has the right to claim damages.

Can one simultaneously claim both damages and a larger share of the property?

Sure. Damages are an independent claim granted by article 1091 of the Civil Code, and the division of property is a balance of interests under article 1087, and the two go hand in hand; the claim and the basis are set out separately to avoid confusion.

8. Practical Insights from a Lawyer

Compensation is not automatically awarded simply because the other party was at fault. The law lists only a few cases: bigamy, continued and stable cohabitation with another person, domestic violence, abuse and abandonment, and other serious wrongdoing. One‑off extramarital affairs or ambiguous relationships, if they do not reach a level of sustained stability, often fail to gain support. When the parties involved expend considerable effort gathering evidence only to find it fruitless, it is usually because they have pursued the wrong approach. Therefore, you should first categorize the situation and assess whether your case is likely to hold up before deciding whether to invest the time and resources required for compensation.

Another easy place to stumble is the proposed time point. If the plaintiff sues, the claim for compensation shall be filed together in the divorce proceedings; as the defendant, it may also be claimed together in the proceedings. If you wait until after the first instance judgment, you will be very passive in procedure and may even lose this right. Therefore, when preparing the litigation materials, include all claims—divorce, child custody, property division, and compensation—in one go; do not treat compensation as a secondary matter that can be addressed later. This article does not involve complex judgments, it is purely don't forget, don't leak.

There is no fixed standard on the amount, which depends on the degree of fault, the consequences, the economic capacity of both parties and the local living standard. It is unrealistic to expect a fixed number. Therefore, the focus of proof is to make the fault appear specific and verifiable: alarm and medical records, time and residence clues, guarantees or acknowledgments written by the other party, relevant transfer and consumption records. In addition, don't forget that in addition to compensation, there are also arrangements that can be claimed together, such as compensation for housework and financial assistance. They are aimed at different situations. If you count the several items that can be claimed together, the overall interests will not be easily missed.

Compensation for divorce damages is the legal relief for the party without fault, but the realization of the relief is based on two premises: the fault falls into the legal situation and the request is put forward at the right time. In practice, the common causes of failure are precisely focused on this-insufficient evidence is found to be "general fault", or the procedural timing error leads to the expiration of rights. For the party to be claimed, it is suggested to take three steps: first, evaluate whether the fault is "qualified" (cohabitation, bigamy, domestic violence, etc., rather than emotional "he is not good to me") according to the identity of the party to be claimed (the plaintiff must file with the divorce lawsuit, the defendant can file a separate lawsuit, and the defendant can claim it within three years after the divorce is agreed); Finally, collect evidence systematically around the legal circumstances and keep the original carrier. Only by rationally setting compensation expectations and professionally preparing the chain of evidence can this system truly fulfill its role in protecting the non‑faulty party.