Insights

Can Ningbo compensate for the derailment of the other party?

Ningbo Author：LuXu WANG

If you discover that your spouse has been unfaithful, can you claim compensation for emotional distress in a divorce? To answer upfront: yes, but the infidelity must reach a legally prescribed threshold. The circumstances for divorce-related damages compensation stipulated in Article 1,091 of the Civil Code include bigamy, cohabitation with another person, domestic violence, abuse or abandonment of family members, as well as “other serious misconduct.” In general, a single instance of adultery that does not constitute serious misconduct is unlikely to result in compensation; however, cases involving continuous cohabitation or bigamy are more likely to be upheld. Even a single instance of adultery may give rise to a claim if it causes severe consequences and is deemed to constitute “other serious misconduct.” The crux of a claim hinges on two key factors: the degree of fault and the admissibility of evidence. Whether the degree of fault is sufficient determines whether compensation can be awarded; whether the evidence is legally valid determines whether the claim will ultimately succeed.

Legal basis for 1.: legal circumstances and scope of damages

Article 1091 of the 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 another person; (III) domestic violence; (IV) maltreatment or abandonment of family members; (V) other serious faults."

Supporting rules dismantling:

  1. Scope of compensation for damages: Article 86 of the (I) on the interpretation of marriage and family stipulates that "compensation for damages" includes compensation for material damages and compensation for mental damages; compensation for mental damages shall be subject to the relevant provisions of the interpretation of the Supreme People's Court on Several Issues concerning the determination of liability for mental damages in civil tort.
  2. Subject and premise of responsibility: Article 87 of the (I) of interpretation stipulates that the subject of liability for damages is the spouse of the non-fault party among the parties to the divorce proceedings; the people's court will not support the claim for damages if the divorce is not allowed; the people's court will not accept the claim for damages if the marriage relationship does not sue for divorce during the period and claims damages alone.
  3. Timing of claim: if the no-fault party is the plaintiff, the claim for damages shall be filed together in the divorce proceedings (item 1 of article 88 of the interpretation (I)); If the claim is made after the divorce is registered by agreement, the court shall accept it, but if the request is clearly abandoned at the time of the divorce agreement, or if it is made more than one year after the divorce registration, it shall not be supported (article 89 of the interpretation (I)).

In a word: the right to claim damages is bound to "divorce", and you can't just claim compensation without divorce; if you don't mention it when you sue for divorce, your claim will be strictly restricted afterwards.

Criteria for Determining Statutory Fault Situations in 2.: Subdivision of Situations

Scenario 1: Bigamy. A person who is already married registers another marriage with someone else, or cohabits with another person under the guise of a marital relationship in a continuous and stable manner. Bigamy not only constitutes a statutory ground for claiming damages in divorce proceedings, but may also give rise to criminal liability (the crime of bigamy). Evidence typically includes marriage registration records, evidence of cohabitation, and the birth certificates of children. In a case heard by the People’s Court of Beilun District, Ningbo, the husband committed bigamy and fathered two children with another woman. The court upheld the non-faulting party’s claim for damages, reflecting the judicial stance that bigamy constitutes a legally recognized fault.

Scenario 2: Living with someone else. It refers to a situation where a person who is already married cohabitates with an unmarried member of the opposite sex in a continuous and stable manner, without assuming the status of husband and wife. To establish cohabitation, two characteristics must be met: “continuity” and “stability.” Brief hotel stays or multiple dates do not automatically constitute cohabitation. In terms of evidence, a chain of proof is required, including clues of shared residence (such as rental agreements, access control records, and neighbor testimony), travel and accommodation records, as well as photographs and videos.

Scenario 3: Domestic violence. Acts of physical and psychological abuse carried out through means such as beating, binding, maiming, restricting personal freedom, as well as frequent verbal abuse and intimidation. Police reports, injury assessments, warning letters, and personal protection orders constitute the core evidence.

Situation 4: Abuse and abandonment of family members.Persistent, regular abuse or refusal to support family members who are unable to live independently. Police and community records, as well as medical records, are crucial.

Scenario 5: Other major faults (cover clause).The new cover-up item in the Civil Code leaves room for acts that "do not reach the level of bigamy and cohabitation but have serious consequences. Whether a casual extramarital affair falls within the scope of this provision is typically determined in judicial practice by considering the following factors: the duration and frequency of the affair, whether any non-marital children were born as a result, whether the parties cohabited openly, the extent of the mental harm inflicted on the faultless party, and whether the affair led to divorce. Judicial standards vary across regions; the Ningbo courts also adopt a cautious approach, requiring a high standard of proof when “gross misconduct” is alleged based solely on a single, isolated instance of infidelity.

The Winning Logic of 3. Compensation Claims: The Degree and Consequences

Whether the derailment claim can be supported is roughly divided into three levels in practice:

  1. Bigamy or continuous cohabitation: is a clearly listed statutory situation, compensation claims are easier to support, the amount is usually in the thousands to tens of thousands of yuan range (local discretion, mental damage compensation no uniform standard);
  2. Occasional derailment but "other major fault": It must be proved that the infidelity is serious, has a significant effect on the breakdown of marriage and the mental damage of the no-fault party, has a large space to grasp the case and is likely to be supported;
  3. Only suspicion, no evidence, or slight crossing of the line: difficult to assert. Mere frequent chatting and ordinary interactions with other members of the opposite sex do not constitute a legally recognized fault, and the court will not uphold such claims.

Need to remind: the amount of damages to "fill in the damage and moderate punishment" as the orientation, the amount in practice is not high, many parties to the "amount of compensation" has too high expectations. Compared with compensation, another impact of derailment in divorce is the division of property-the innocent party can claim to take care of the division of common property (Article 1087 of the Civil Code), and the property spent by the other party for extramarital relations (such as large transfers, purchase of houses and car gifts to others) can also be taken into account for recovery and multiple points. Including the money in the property division is often more practical than simply seeking compensation.

Two different lines of relief should also be distinguished: the damages in article 1091 of the civil code are aimed at "fault acts" (bigamy, cohabitation, domestic violence, abuse and abandonment, other major faults), and the obligor of compensation is the party at fault; The economic compensation in article 1088 is aimed at "contribution to domestic work"-if one party bears more obligations for raising children, taking care of the elderly and assisting the other party in work, he has the divorce has the right to request, whether the other is at fault. The two mechanisms serve different functions and can be applied concurrently: In a bigamy case heard by the People’s Court of Beilun District, Ningbo, the court awarded both damages and a discretionary economic compensation, thereby demonstrating the parallel application of these two avenues of redress. When making your case, present the evidence for each claim separately: use evidence of fault—such as adultery or cohabitation—to support a claim for damages, and use evidence of contributions—such as long-term care for children and elderly relatives, or sacrifices made to one’s career—to support a claim for economic compensation; this will prevent you from neglecting one aspect in favor of the other.

The List of 4. Evidence and the Boundary of Legitimacy

The evidence of derailment is organized from strong to weak according to the proof force, and the formation of chain is better than single point evidence:

  1. Self-confessed evidence: letter of repentance, letter of guarantee, chat record and recording of admitting infidelity-strong proof is the first choice; Note that the letter of repentance should specify specific facts and time, and the general "I was wrong" has limited proof.
  2. Documented evidence and records: hotel room opening records, joint rental contracts, air tickets, shopping and transfer records (large transfers to extramarital objects), photos of living together.
  3. Electronic evidence: WeChat chat records, circle of friends content, etc., must keep the original carrier such as mobile phone, through notarization or in-court demonstration fixed; Only screenshots prove weak (Yinzhou Court White Paper suggests that electronic evidence has many defects in proof and is difficult to adopt).
  4. Witness testimony: testimony of neighbors, colleagues, relatives and friends on living together and communicating openly.
  5. Public power records: alarm records, police station inquiry records, marriage registration records involving bigamy, birth certificates of children born out of wedlock.

The red line of legality of evidence collection: evidence obtained by secretly photographing and stealing other people's private space, invading the other party's mobile phone or social account, and illegally tracking may be excluded due to invasion of privacy, and if the circumstances are serious, it may also bear tort liability. The boundaries of lawful evidence collection are “photography in public spaces, recording with the individual’s consent, and inquiries through publicly available channels.” When these boundaries are uncertain, priority should be given to self-admitted evidence and official records.

The organization of evidence follows the hierarchical logic of "self-recognition priority, documentary support and chain finality": repentance and acknowledgement chat records have the highest probative force and should be used as the backbone of evidence and the original should be properly kept; Documentaries such as bank transfer, hotel and travel records, rental contracts, etc. are used to fix the "continuous and stable" cohabitation characteristics; Photos, videos and witness testimony are used for reinforcement. With respect to electronic data such as chat records, it is recommended to have them notarized by a notary office or secured using a trusted timestamp, and to bring the original storage media to court for on-the-spot demonstration. As for information held by third parties—such as cohabitation records or hotel check-in records—such evidence may be obtained during litigation through a court‑ordered investigation or an investigative order; under no circumstances should it be collected by unlawful means. The timeline of evidence must be coherent—covering the stages from initial acquaintance, through money transfers and cohabitation, to publicly presenting oneself as a married couple or romantic partners. The more complete this timeline is, the stronger the support it provides for establishing either “cohabitation” or “material fault.”

5. Advocates Timing and Procedural Points

  1. At the time of divorce, it is claimed that if the no-fault party is the plaintiff, the claim for damages must be filed at the same time as the divorce lawsuit; If the defendant does not agree to the divorce, he may sue separately after the divorce (pay attention to the time limit).
  2. Claims after divorce by agreement are limited: those who have not explicitly given up at the time of divorce by agreement can be claimed after divorce registration, but those who have been put forward for more than one year will not be supported.
  3. Consequences of the decision that divorce is not allowed: if the court decides that divorce is not allowed, the claim for damages will not be supported.
  4. Simultaneous claims with property division: Incorporate damages, property division (including multiple claims), and custody ownership into the claim to avoid missing items that can be supported.

6. Common Misconceptions

Myth 1: If the other party derails, he must be compensated.Positive solution: the legal level of bigamy, cohabitation with another person or "other major fault" must be reached. Infrequent instances of infidelity with no evidence and no serious consequences are unlikely to be upheld.

Myth 2: The amount of compensation will be high enough to "punish" the other party.Positive solution: compensation for moral damages is mainly discretionary, and the practical amount is usually not high.

Misunderstanding 3: the most "hard" evidence is secretly recorded ".Positive solution: invasion of privacy, evidence obtained by illegal means may not be accepted, and even lead to tort liability. A letter of apology, public records, and original electronic evidence from the source device constitute a reliable combination.

Myth 4: It's not too late to claim slowly after divorce.Positive solution: there is a strict limit on the timing of claims: divorce proceedings must be filed together; those claimed after divorce by agreement shall not be supported for more than one year or those who have expressly given up.

7. Frequently Asked Questions

Can the other party have to pay for cheating? How much can I ask?

The degree of bigamy, cohabitation or "other major fault" must be reached, which is occasional and difficult to support without evidence. The amount is determined at the court’s discretion, typically ranging from several thousand to tens of thousands of yuan. More practical than claiming damages is asserting the principle of favoring the faultless party during the division of marital property and seeking reimbursement for the other party’s expenditures on extramarital affairs that constitute joint marital assets.

How do you prove "living with someone else"?

Provide evidence of common residence (rental contract, access control and monitoring records, neighbor testimony), continuous and stable travel and accommodation records, photos and videos, repentance letters, etc. to form a chain. A single instance of renting a room is generally insufficient to establish cohabitation.

Is it useful for the other party to write a letter of repentance and admit cheating and then deny it?

It's useful. A letter of repentance is a form of self-authenticating evidence that carries significant probative force; as long as it reflects the true intent of the author and sets forth specific facts, subsequent denials by the opposing party will not affect its evidentiary value. It is important to retain the original document and, where necessary, supplement it with corroborating evidence such as chat records to establish a coherent chain of evidence.

After the agreement was divorced, it was discovered that the other party had cheated. Can you still claim compensation?

If the claim for damages is not explicitly waived at the time of divorce by agreement, the claim may be sued within one year after the divorce registration; if it is more than one year or has been explicitly waived in the agreement, the court will not support it.

8. Practical Insights from a Lawyer

When they found out that the other party was cheating, the first reaction of many people was "he must compensate". Whether compensation can be awarded hinges on the severity of the misconduct: casual, isolated instances of infidelity are unlikely to result in damages, whereas persistent cohabitation with a person outside the marriage or bigamy may provide a stronger basis for seeking compensation. Moreover, if the extramarital affair has led to serious consequences, those may also be considered when making a claim. So don’t rush into a fuss just yet. First, clearly determine which category your current actions fall into, and then decide whether to make a claim and, if so, to what extent—keep the pace in your own hands.

Another line of claim is that the evidence must be legal. Common effective materials include written words that the other party admits, records that can reflect the specific time and object, records formed by public authorities, etc. What should be avoided is to invade other people's private space and illegally obtain the contents of other people's accounts. Materials from incorrect sources may not be used again. When organizing evidence, categorize it by time and factual details to create a coherent, continuous chain of proof. This approach is more persuasive than presenting a large collection of scattered screenshots all at once, and it better withstands the other party’s explanations and rebuttals.

Claims for compensation are generally claimed together with divorce, so the timing should not be delayed until divorce is completed, which is often very passive. During negotiations, you can consolidate compensation and the overall allocation into a single package rather than haggling over each sum separately. If the other party is most concerned about their employer finding out or losing face, these pressure points can sometimes be more effective in prompting concessions than the monetary amount itself. There must also be reasonable expectations: the amount of compensation is usually limited, and it is regarded as a card in the overall game, rather than the entire goal, so as not to delay greater benefits for it.

The other party's derailment claim, the winner and loser in the "degree of fault + legal evidence + claim time": the degree is not enough, do not compensate. It is advisable to promptly and legally preserve evidence as soon as any signs of wrongdoing emerge—gathering confession letters, original chat records, police reports, and evidence of cohabitation, leveraging the strengths of each to create a coherent chain of evidence. When making claims, consider compensation for damages together with property division and the recovery of marital expenses incurred outside the marriage; do not focus solely on the amount of compensation. Raise these issues in litigation, and if opting for an amicable divorce, be mindful of the one-year statute of limitations. It should be noted that claims for damages arising from adultery and the division of marital property are two distinct avenues of legal recourse: the former hinges on legally recognized fault, while the latter is governed by the principles of contribution and care. Only by pursuing both avenues simultaneously can one effectively safeguard one’s rights and interests. If the other party expresses remorse and is willing to resolve the matter in writing, entering into a written agreement under a professional legal framework—covering compensation, property division, and arrangements for the children—is often a more efficient way to limit losses than pursuing litigation.