Ningbo divorce: 5 types of fault can claim damages.

When the court decides to grant a divorce, the no-fault party often only pays attention to how to divide the property, but ignores another independent request-divorce damages. The Civil Code limits the types of fault that can claim compensation to five categories, each of which is different in terms of evidentiary standards and difficulty of proof. Whether you can get compensation and how much you can get depends on whether the basis of the right of claim and the legal elements are clearly corresponding at the time of prosecution.

The Basis of Claim for Damages in 1. Divorce

article 1091 of the Civil Code stipulates that if a divorce is caused by one of the following circumstances, the innocent party has the right to claim damages: bigamy, cohabitation with another person, domestic violence, maltreatment or abandonment of family members, and other serious mistakes. This article takes divorce as the premise of exercise, and simply claims compensation during the existence of the marriage relationship, which is generally not supported. A claim for compensation may either be filed together as an application in divorce proceedings or expressly waived or reserved in the event of a divorce by agreement.

The Dual Nature of Damages

divorce damages include both material damages and moral damages. Material damage is limited to actual losses, such as medical expenses, lost work expenses, property losses, etc. caused by domestic violence; mental damage is based on the degree of fault, the method of infringement, and the consequences caused. In judicial practice, the amount of compensation for mental damage usually fluctuates between 10,000 yuan and 100,000 yuan, and only in extreme cases will it break through even higher.

Parallel to the property division tilt clause

article 1091 damages and Article 1092 rules for hiding or transferring property are two separate tracks. If one party has both the fault act and the transfer of property, the no-fault party may claim both damages and property division tilt, but the factual basis and evidence of the two are not the same, can not be confused.

2. the specific boundaries of the five types of statutory faults.

Bigamy, cohabitation with others, domestic violence, abuse of family members, abandonment of family members, these five types of faults are not consistent in practice. Distinguishing them accurately is the first step in choosing the direction of evidence collection.

Bigamy requires the existence of a legal or de facto marriage

bigamy refers to the fact that a spouse has registered a marriage with another person, or has not registered but lives together in the name of husband and wife and is considered by the surrounding masses to form a de facto marriage relationship. Only extramarital sex or ordinary infidelity does not constitute bigamy. Proof of bigamy often requires marriage registration records, certificates of community cohabitation, testimony from neighbors, birth registration of children born together, etc.

Co-habitation emphasizes continuous and stable living together

living with the heterosexual outside marriage means that a spouse and the heterosexual outside marriage do not live together in the name of husband and wife, but continuously and steadily. Occasional opening records and single photos are usually not enough to prove; it is necessary to prove that both parties have lived together for a period of time, shared living expenses, and appeared as fixed partners.

Progressive Relationships of Domestic Violence, Abuse, and Abandonment

domestic violence focuses on physical, mental and other violations; abuse focuses on persistent and frequent torture and destruction; abandonment focuses on the refusal of the party with maintenance obligations to perform their obligations, and the circumstances are bad. The three have their own emphasis on the form of evidence: domestic violence values alarm records, injury identification and warning letters; abuse values long-term behavior records; abandonment values the objective plight of the abandoned party and the other party's refusal to perform.

The difference of proof between bigamy and cohabitation in 3.

Many people have mixed up evidence of bigamy and cohabitation, and the result has been pointed out in court as a logical break. The core difference between the two is whether to be external in the name of husband and wife.

Bigamy Evidence More Emphasis on Marital Appearance

if the goal is to prove bigamy, evidence that both parties live together in the name of husband and wife should be collected, such as the common household register, the records of parental relationship in the medical certificate of the birth of the child, the public pictures and texts of the self-proclaimed husband and wife in the circle of friends, and the materials registered by the unit or community in the name of husband and wife.

Evidence of cohabitation puts more emphasis on continued stability

proof of cohabitation does not require proof of the couple's name, but requires proof of continuity of cohabitation. For example, express receipt records at the same address, long-term performance of joint lease contracts, consistent records of water, electricity and gas payments, testimony from neighbors on the length of common residence, etc.

Identification of Domestic Violence, Abuse and Abandonment in 4.

Among these three types of faults, domestic violence has the highest frequency in divorce proceedings, but the proportion of failure to prove is also the highest. Because of the privacy of domestic violence, evidence fixation often lags behind, and it is more difficult to supplement the evidence afterwards.

The Complete Chain of Evidence of Domestic Violence

A relatively complete chain of evidence usually includes: alarm records and police return receipts, injury photos and hospital medical records, injury appraisal opinions, warning letters issued by public security organs, records of women's federations or community mediation, and repentance letters or guarantees written by the perpetrators afterwards. Only unilateral statements or testimony of relatives and friends, the proof is weak.

Objective Criteria for Abuse and Abandonment

abuse requires persistent, regular torture, such as long-term dietary restrictions, repeated insults, and long-term failure to provide necessary medical care. Abandonment requires one party to have the obligation to support old, young, sick or other family members who do not have the ability to live independently and refuse to support them, and the circumstances are bad. Occasional quarrels or short-term away from home generally do not constitute abandonment.

What factors determine the amount of 5. compensation

the law does not set an upper limit or a fixed formula for compensation, and in practice judges usually take into account the following factors: the degree of fault of the at-fault party, the duration of the fault, the consequences of moral damage to the non-fault party, the local average standard of living, the economic situation of both parties, and whether the at-fault party aggravates the damage to the other party by transferring property.

Division of Proof of Material Damage and Mental Damage

medical expenses, lost work expenses, property losses, etc. require objective documents such as invoices, salary flow, maintenance documents, etc.; mental damage is indirectly proved through fault circumstances, treatment records, psychological assessment reports, etc. At the time of the prosecution, it is recommended that the two requests be listed separately to facilitate their review by the Court.

Can I claim it again after the divorce by agreement?

If the parties expressly agree to waive the claim for damages in the divorce agreement, they can usually no longer claim; if the agreement does not involve and meets the statutory fault circumstances, the innocent party can still file a lawsuit within one year after the divorce. Therefore, whether to include a waiver clause in the agreement needs to be treated with caution.

6. case proof

according to similar judgment rules, one party registered marriage with another person and had children during the existence of the marriage relationship, and the other party sued for divorce and requested compensation for damages. The court found that bigamy was constituted, and the divorce was granted and the no-fault party was supported to compensate 100,000 yuan for mental damages. At the same time, the common property was distributed in an inclined manner in the division of property in combination with the principle of taking care of the no-fault party. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

According to similar judgment rules, one party claimed that the spouse had domestic violence, submitted only unilateral statements and two photos, and failed to provide alarm records, injury identification or warning. The court held that the evidence was insufficient to prove the fact of domestic violence and did not support the claim for damages. However, if the other party submits complete alarm records, hospital medical records and public security organ warning, the court will determine that domestic violence is established and decide to compensate 30,000 yuan. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

7. Risk Alert

• confusing ordinary infidelity with legal fault: only chat records and opening records are usually not enough to prove cohabitation or bigamy, and the wrong choice of the basis of the claim can lead to loss.
• The fixed lag of domestic violence evidence: no timely alarm, no hospital medical records, no warning, it is difficult to supplement the evidence afterwards, and it is difficult for the court to determine.
• The claim for compensation is overdue: the agreement is not claimed within the statutory period after divorce, or the agreement has been expressly waived, and the right may be extinguished.
• The amount of compensation for mental damage is expected to be too high: in the range of tens of thousands of yuan in local judicial practice, there is often no basis for claiming hundreds of thousands of yuan.
• Ignore property division tilt: only claim compensation and ignore the fact that the other party transferred property, may miss a greater degree of property protection.

8. FAQ

can you claim damages for divorce if you cheat but don't live together?

generally cannot. The statutory faults listed in the Civil Code do not include general derailment, and only major faults such as bigamy, cohabitation with others, domestic violence, abuse and abandonment fall within the scope of compensation. Occasional derailment can be used as a reason for emotional breakdown, but usually cannot directly trigger damages.

How much can divorce damages generally be compensated?

Material damage is calculated according to the actual loss; mental damage compensation is determined by the court according to the degree of fault, the consequences of damage, local living standards and other factors. The common range in Ningbo and Zhejiang is from thousands to 100,000 yuan, and some cases with particularly serious circumstances may be even higher.

No compensation was mentioned during the divorce agreement. Can I sue later?

If the divorce agreement does not explicitly waive the claim for damages and meets the statutory fault circumstances, the innocent party can still sue within one year after the divorce.

Domestic violence only has photos and no alarm records. Can you confirm it?

Only the photographs prove weak. A more complete chain of evidence should include alarm records, hospital medical records, injury identification, warning letters, mediation records, etc. It is recommended to call the police and seek medical treatment as soon as possible when suffering from violence, and keep all communication records.

Practical Experience of 9. Lawyers

many innocent parties only fought for property in court and missed an independent request for divorce damages. This compensation is premised on divorce, and the types of fault are limited to several categories, not "the other party did wrong" can be claimed. Therefore, before prosecuting, one must first match one's own claims and evidence to the elements of these types of faults, rather than saying in general terms that the other party is "sorry to me". Only if the facts meet the requirements, the claim for compensation will stand up, otherwise it will be a waste of time and may distract you from the division of property.

The difficulty of proving different faults varies greatly. Bigamy and cohabitation with others need to reflect a continuous and stable relationship, and scattered ambiguous clues are often not enough. Domestic violence should fall on the materials that can prove "repeated violence" such as alarm, medical treatment, injury and warning. Abuse and abandonment should reflect the state of long-term non-performance of obligations. Material damage is limited to actual loss and needs to be supported by a bill, while moral damage is determined by the court's comprehensive degree of fault, mode of infringement and consequences, so a higher amount depends on the completeness of the evidence, not the weight of emotion.

Operationally, the claim for compensation can be filed together with the divorce petition, or it can be explicitly reserved or waived at the time of divorce by agreement. Once the waiver is signed, it is usually difficult to claim it again. You must think clearly before signing. When collecting evidence, we should pay attention to the legality and authenticity, and do not use the means of invasion of privacy, otherwise the loss outweighs the gain. In the negotiation, the amount of compensation itself may not be very large, but it is an effective bargaining chip for pressure-once the fact of fault is settled, it can often affect the proportion of property division and the arrangement of maintenance. It is easier to talk about the overall plan that is beneficial to oneself than to focus on one item.

Divorce damages are not emotional comfort money, but the right to have strict legal requirements. Before the prosecution, it is necessary to confirm which of the five types of faults the other party's conduct belongs to, and then collect evidence around the legal constituent elements of such conduct, and list the requests for material damage and moral damage separately. In practice, the fixed time node of evidence is often more important than the content of the evidence itself. It is suggested to call the police, seek medical treatment and fix the scars as soon as possible when domestic violence, abuse and other situations occur, so as to avoid getting into the dilemma of proof afterwards. At the same time, we should also pay attention to the parallel claim of compensation and property division tilt, to prevent only focus on compensation and ignore the greater property rights and interests.