Insights

Ningbo divorce proceedings witness to testify in court 5 notes

Ningbo Author：LuXu WANG

In divorce cases, many facts occur within the family, and it is difficult for outsiders to see them directly. Whether the relationship between husband and wife is broken, whether one party is at fault, who takes care of more children, and what is the source of family property, these issues often require witness testimony. However, witnesses testifying in court are not as simple as letting relatives and friends come to court to say a few words. Witness qualifications, testimony content, court procedures, and cross-examination response are all emphasized. Inadequate preparation not only does not help witnesses, but may weaken their own claims.

1. the Boundary of the Role of Witness Testimony in Divorce Cases

witness testimony is one of the types of legal evidence stipulated in the Civil Procedure Law, which is mainly used to prove facts that cannot be directly proved by written materials in divorce cases. However, the testimony of witnesses has the characteristics of strong subjectivity and easy to be affected by interests, and the court usually combines other evidence to determine it comprehensively.

limited probative power of witness testimony

compared with documentary and physical evidence, the probative force of witness testimony is usually weak, especially for witnesses who have a kinship, employment or other interest with a party, and whose testimony needs to be reinforced by other evidence in order to be accepted. Therefore, one or two witnesses cannot be expected to change the course of the case.

Facts Suitable for Witnesses to Prove

witness testimony is more suitable for proving the following facts: the time and reason of the separation of husband and wife, whether one party has domestic violence or infidelity, who takes care of the children at ordinary times, whether one parent helps to take care of the children for a long time, the purchase and contribution of family property, etc. These facts tend to occur in family life with less documentary evidence.

Circumstances in which a 2. may apply for the appearance of a witness

not all facts require the appearance of a witness. Whether to apply for a witness shall be decided according to the needs of the case and the evidence.

Emotional breakdown related facts

for example, if one party lives with others for a long time, often does not go home, commits violence to family members, and has bad habits such as gambling and drug taking, it can be proved by the testimony of witnesses such as neighbors, property personnel, relatives and friends.

Facts related to custody

when fighting for the custody of children, people who know the daily life of children can be invited to appear in court to prove that the children are mainly taken care of by their own side, have deep feelings with their own side, and have better conditions for their support.

Facts about the source of the property

for example, when buying a house, the parents' contribution, the purpose of the loan, the income of the family business, etc., can be testified in court through the then manager, relatives and friends or business partners.

5 Precautions for 3. Witnesses to Testify in Court

first, communicate with the witness in advance, but do not induce or abet the witness to commit perjury. Second, select witnesses who are directly related to the facts of the case and have no significant interest. Third, submit an application for the appearance of a witness to the court within the time limit for the presentation of evidence, setting out the identity of the witness, the content of the testimony and the purpose of the proof. Fourth, help witnesses sort out the timeline, location, people and events before the trial to ensure that the testimony is consistent. Fifth, remind witnesses to be truthful and avoid exaggeration, speculation or emotional language.

Normative Writing of Application

the application for a witness to appear in court should include: the applicant's information, the witness's name, ID number, contact information, the relationship with the parties, the facts to be proved, and the reasons for testifying. Failure to apply within the time limit for producing evidence may be rejected by the court.

Pre-trial preparation of witnesses

before appearing in court, witnesses should understand the discipline of the trial and know how to answer the questions of the judge and the opposing counsel. Witnesses can be allowed to organize the main points of the testimony in writing in advance, but witnesses should not be required to memorize them by rote, otherwise they will easily reveal flaws in cross-examination.

4. Witness Qualification and Recusal

the "the People's Republic of China Civil Procedure Law" stipulates that all units and individuals who know the situation of the case are obliged to testify in court. People who cannot express their meaning correctly cannot testify.

Minors testifying

minors can act as witnesses if they can correctly express the facts they perceive. However, the court will consider the age, intelligence and psychological endurance of minors, and protect their rights and interests by means of non-public inquiry when necessary.

Impact of stake

if the witness has a relationship with a party, such as relatives, employment, creditor's rights and debts, the evidence of his testimony will be reduced accordingly. Courts usually require that such testimony be supported by other evidence. Therefore, if possible, try to choose neutral or distant witnesses.

The Authenticity and Relevance of the Content of 5. Testimony

A witness does not appear in court to speak for one party, but to help the court ascertain the facts. The content of the testimony shall be true, specific and relevant to the case.

Avoid speculation and comments

witnesses should state their own personal experience and perception of the facts, to avoid the use of "I think" "I think" "he sure" and other speculative language. For the fact that you have not seen or heard, you should clearly answer "I don't know" or "I didn't see it with my own eyes".

Details enhance credibility

details such as specific time, place, characters, dialogue content, and surrounding environment can enhance the credibility of testimony. For example, witnesses who prove domestic violence should best describe the time of the incident, the location of the injury, the persons present at the time, and the handling of the incident.

6. Appearing Procedure and Response to the cross-examination

after the witness appears in court, it is generally necessary to go through three links: the applicant's inquiry, the other party's inquiry, and the judge's inquiry.

Responding to inquiries from the other party

the opposing lawyer may weaken the credibility of the testimony by asking questions about the relationship between the witness and the client, whether the witness's memory is clear, and whether there is a bias of interest. Witnesses should remain calm, only answer the facts they know, and not be irritated or induced by the other party.

Mutual evidence between witnesses

if there are multiple witnesses to prove the same fact, care should be taken to confirm each other in key details between the testimonies to avoid contradictions. If the content of the testimony is completely consistent, like recitation, it may cause the judge to doubt the authenticity of the testimony.

7. case proof

according to the rules of the same kind of adjudication, one party claims the existence of domestic violence in the other party and applies for the testimony of neighbors and community workers. Witnesses described hearing arguments and noises on a number of occasions and seeing a doctor after one of the parties was injured. The court held that the witness's testimony could be mutually corroborated with the alarm records and hospital medical records, determined that the fact of domestic violence existed, and gave appropriate care to the no-fault party while deciding the divorce. 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 the rules of the same kind of adjudication, in order to obtain custody of the child, the teacher who applied for the child and the grandparents who lived together appeared in court to testify that the child was mainly taken care of by the party and lived and studied in a stable manner. The court, taking into account the testimony of witnesses, school records and daily photographs, decided that the children should be brought up directly by the party, with the other party paying monthly maintenance and having the right to visit. 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.

8. Risk Alert

  • the application witness did not submit within the time limit for proof and was refused to appear in court.
  • The witness has a close relationship with the parties, and the testimony is weak and cannot achieve the purpose of proof.
  • The witness is induced or abetted before appearing in court, and the content of the testimony is inconsistent, which damages the credibility of the party.
  • When the witness testifies, he uses speculative language or emotional expression, which reduces the credibility of the testimony.
  • Only the testimony of witnesses and no other evidence to strengthen, the court is difficult to believe.

9. FAQ

do witnesses have to appear in court in divorce proceedings?

Not necessarily. Witnesses may submit written testimony, but the probative force of written testimony is usually lower than that of testimony in court. For key facts, it is recommended to apply for witnesses to appear in order to be questioned by the court and the opposing party.

Can relatives testify in court?

Yes, but the probative force of relatives' testimony is relatively weak and needs to be corroborated with other evidence. The court will consider the interests of the witness and the parties, comprehensive judgment of the credibility of their testimony.

Do witnesses need to apply in advance?

need. An application for the appearance of a witness shall be submitted to the court within the time limit for the presentation of evidence, stating the identity of the witness, the content of the testimony and the purpose of the proof. Late applications may not be granted.

What about perjury by the opposing witness?

Contradictions and irregularities in their testimony can be revealed through cross-examination and evidence to the contrary can be provided. If the opposing witness does commit perjury, the court may reprimand, fine or detain him, depending on the seriousness of the circumstances.

Practical Experience of 10. Lawyers

in divorce cases, what needs to be said by witnesses is mostly the fact that happened within the family and there is little written evidence-the time and reason of separation, whether one party did not go home for a long time or was at fault, and who took care of the children at ordinary times. Whether or not to invite witnesses and who to invite must first weigh how useful the testimony can be. The testimony of witnesses is highly subjective and has an interest relationship with one party, such as relatives and employment. The probative force is inherently weak and needs to be reinforced by other evidence. It is not realistic to expect one or two witnesses to reverse the overall situation. First, the position of the witness should be put right.

In the selection of candidates, priority should be given to those who have no obvious interests with both parties and can testify on specific facts, such as property, neighbors, and relatives and friends who have been in contact for a long time. The content of the testimony should fall on the specific time, place and what they have seen and heard, rather than a general conclusion that "they have bad feelings". Before the court, the witness should go through the facts to be proved and remind him to only speak about his personal experience and not to make a statement or guess on behalf of one party. Testimony of taking a stand and fighting with written evidence at the first opening of the mouth will not only not help, but may also bite one's own side.

Procedural, in order to submit an application for witnesses to appear in court within the time limit for proof, to write down the object of proof and the relationship between the witness and the case, the court's notice is required to explain in advance; If a witness does not appear in court without justifiable reasons, whether his written testimony can be accepted is often discounted. When it comes to cross-examination, the other party will probably face difficulties in terms of interests, accuracy of memory and consistency. You should prepare other evidence in advance to echo them. Generally speaking, one thing is to grasp: witness testimony is for reinforcement, not the main force. If you can rely on documentary evidence and material evidence to explain clearly, don't bet the victory or defeat on one mouth.

Witness testimony can play an important role in divorce cases, but its probative force is affected by multiple factors such as witness qualification, interest, and content authenticity. When applying for witnesses to appear in court, they should be standardized as soon as possible, choose witnesses who know the facts and have a relatively neutral relationship, help witnesses sort out key details before the court, but do not induce perjury. When appearing in court, the statement should be made around the specific facts of personal experience, avoid speculation and emotional expression, and try to form a confirmation with other evidence such as alarm records, medical records, chat records, photos, etc. Only by embedding the testimony of witnesses in the complete chain of evidence can the value of their proof be maximized.