Ningbo "third party" in marriage, can claim compensation- Zhiheng Law Firm

When a “third party” enters a marriage, many readers in Ningbo’s first reaction is: “Can I get compensation from him or her?” There’s no simple answer to this question; we must first divide the potential parties liable for compensation into two categories and examine them separately. Claiming damages from a spouse who has committed adultery has a clear legal basis, and there are numerous successful cases documented in publicly available court judgments; as for the third party who interferes with the marriage…"Third party"With regard to claims, China’s current laws do not contain direct or explicit provisions, and judicial rulings across different regions are highly inconsistent—some courts dismiss such claims outright, while others grant partial relief only in specific circumstances. Mistaking these two entities for one another is the most common misconception on the path to rights protection. Based on the Civil Code of the People's Republic of China and current judicial interpretations, and drawing on publicly available judgments and typical cases, this article clarifies the rules, boundaries, time requirements, and key evidentiary points of the two approaches, for reference by parties and case-handling personnel.

1. First, distinguish between the two objects; the applicable rules are completely different.

In adultery disputes, there may be two individuals who could be held accountable, but the law treats them very differently. Only by clearly distinguishing between these two objects can all subsequent questions be answered.

The first party is the spouse at fault. Spouses owe each other a duty of fidelity. If one spouse commits bigamy, cohabits with another person, perpetrates domestic violence, or abuses or abandons family members, or engages in other serious misconduct that leads to divorce, the faultless party may, in accordance with the law, seek damages. This approach is based on Article 1,091 of the Civil Code, and the relevant rules are relatively clear and predictable.

The second object isThe "third party" who interferes in a marriage. If a third party has an extramarital relationship with a spouse, whether it is necessary to directly bear the liability for compensation to the spouse without fault, there is no special "spouse right" infringement provision in our law, there are differences in theory and practice, and the results of the judgment vary greatly from place to place. Readers should be mentally prepared for the uncertainty in this section.

Different subjects of liability: the former concerns liability within the marital relationship, while the latter pertains to the liability of a third party outside the marriage.
The legal basis is different: the former has clear provisions such as Article 1091 of the Civil Code; the latter lacks the support of direct provisions and can only bypass general infringement or public order and good customs.
The certainty of success is different: the former has clear rules and predictable results; the latter highly relies on the facts of the case and the judgment tendency of the court of appeal.
The burden of proof differs: in the former case, it suffices to prove that the spouse has committed a legally recognized fault; in the latter, it is also necessary to prove the third party’s conduct, subjective fault, and the resulting damages.

Therefore, the correct question is not “Can infidelity be compensated?”, but rather “To whom should compensation be made, and on what grounds?” Separating these two lines is the first step in safeguarding one’s rights.

2. Claims to Wrongful Spouses: The Rule of 1,091

Article 1091 of the Civil Code stipulates that 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) abuse and abandonment of family members; (V) other serious faults. Compared with Article 46 of the original "Marriage Law", this article simplifies "cohabitation with others" to "cohabitation with others", and adds a "other major faults" clause, which significantly expands the compensation for divorce damages. Scope of application.

The specific meaning of the five situations

Bigamy: Having a spouse and then registering marriage with another person, or cohabiting with another person under the guise of a marital relationship without having registered the marriage. Bigamy may also constitute a criminal offence.
Cohabitation with others: This is one of the most misunderstood in practice. According to Article 2 of the "Interpretation (I) of the Marriage and Family Chapter of the Civil Code," "cohabitation with another person" refers to a married person living together continuously and stably with an unmarried member of the opposite sex without being recognized as husband and wife. In other words, casual extramarital sexual relationships or short-term flings do not automatically constitute “cohabitation.” To ensure confidence in making arguments, it is essential to distinguish between the two.
Domestic violence encompasses both physical violence, such as beating, binding, and restricting personal freedom, as well as psychological violence, including frequent verbal abuse, intimidation, humiliation, defamation, stalking, and harassment.
Abuse and abandonment of family members: Persistent and recurrent domestic violence constitutes abuse; failure to provide support for elderly, minor, or ill family members who lack the ability to support themselves constitutes abandonment.
Other significant faults: This is a newly added catch‑all provision in the Civil Code, designed to address complex and evolving circumstances in practice. For example, if one party commits adultery and bears a child with another person, even if this does not necessarily constitute bigamy or “cohabitation with another person,” the harm caused to the spouse’s feelings is substantial and may be recognized as a serious fault.

From the perspective of public cases, the role of "other major faults" as a bottom-up clause is emerging. In the divorce dispute case between Lu and Hu, heard by the People’s Court of Binjiang District, Hangzhou City, Zhejiang Province, the defendant maintained an intimate and ambiguous relationship with another person during the first divorce proceedings, and shortly after the divorce, remarried the same person and had children. Starting from the continuity of the behavior, the coincidence of the characters and the time node of remarriage and giving birth to children, the court determined that the degree of fault had reached the level of "other major faults", supported the plaintiff's mental damage compensation of 50,000 yuan as appropriate, and rejected the written apology, lawyer's fees and other requests. This indicates that, even if the conduct does not fully constitute bigamy or “cohabitation with another person,” serious extramarital misconduct may still be eligible for compensation, provided that the evidence is solid and the circumstances are sufficiently egregious.

Scope of compensation: material damages plus mental distress damages

Compensation for damages in divorce cases comprises two components: compensation for material losses and compensation for emotional distress. Material damage mainly refers to the property loss caused by the fault behavior to the non-fault party, not to the extent that the damage directly affects the property, including the reduction of positive property and the increase of negative property. In practice, the compensation for mental damage is determined by the court based on the degree of fault, the length of marriage, the local economic level, and the situation of the children. Public cases are mostly between thousands and tens of thousands of yuan, not "as much as you want to pay".

A key limitation: the party obligated to provide compensation is only the spouse.

It is important to note: compensation for damages in divorce cases...The right holder is limited to the spouse who is not at fault, and the party obligated to provide compensation is also limited to the spouse who is at fault. does not include any third parties outside the marital relationship. (I) Article 29 of the original Judicial Interpretation of the Marriage Law clearly states that the party bearing liability for damages is the spouse who is not at fault. Furthermore, if both spouses are at fault as stipulated in Article 1091, neither party shall have the right to claim damages in a divorce; such claims may not be reduced on a pro rata basis simply by offsetting the respective faults.

3. When can it be submitted: the timing and method are very important.

Even if you have a right to make a claim, you must assert it at the right time and in the proper manner; otherwise, your claim may be rejected. Be sure to remember the following key time points.

When the party not at fault is the plaintiff in a divorce action, the claim for damages should generally be brought concurrently within the divorce proceedings; it is advisable not to defer such a claim and file a separate lawsuit after the divorce has been finalized.
When the innocent party acts as the defendant, in principle, it should also be filed at the time of divorce; but if one party does not agree to the divorce and does not file a claim for damages, he can file a separate lawsuit within one year after the divorce.
No divorce is filed, nor is the marital relationship dissolved, Those who independently claim compensation for divorce damages are generally not supported. At this stage, the extramarital affair is an internal marital issue, as the prerequisite of “divorce” is absent. However, if there are acts of domestic violence or other torts, a separate lawsuit for personal injury compensation may be filed.
In the case of divorce by agreement, if it has clearly stated at that time that it will give up the claim for damages, the claim later will not be supported; if it has not given up, it can be put forward within one year after the divorce by agreement.

After the divorce, I just discovered marital misconduct—can I still seek compensation?

Yes, but it depends on the specific circumstances. The case of Cai v. Ge in Yueqing, Zhejiang is a typical case: the defendant had an improper relationship with a third person during the marriage relationship and caused him to become pregnant. After the divorce, the plaintiff discovered the relevant facts and sued for an apology and compensation. The Yueqing Municipal People's Court ruled that the defendant should make a written apology to the plaintiff and compensate 10,000 yuan for mental damage. The court held that mutual faithfulness between husband and wife is both a traditional virtue and a legal obligation, and those who request compensation for damages after divorce should be supported in accordance with the law; at the same time, it has made an expanded interpretation of "cohabitation with others". The violation of the duty of loyalty and pregnancy is included in the treatment to protect the right of relief of the innocent party. The judgment in this case has taken effect.

However, one should also be wary of “repeated assertions.” In the case of Liu and Li in Zixing, Hunan, the divorce agreement between the two parties has agreed on "economic loss of 200,000 yuan". The court determined that the agreement is essentially compensation for mental damage to the fault of infidelity in marriage, so the plaintiff's claim for spiritual comfort after divorce is no longer supported. This indicates:If the compensation has already been clearly stipulated in the divorce agreement, any subsequent separate claim for damages is likely to be unsuccessful.

4. Claiming Compensation from a "Third Party": Current Legal Status and Two Tendencies

This is the part of the article that must be described accurately; readers should not be misled by “headline-style statements.”

There is no direct legal basis for a claim.

China’s Civil Code does not explicitly stipulate a “spousal right,” nor does it contain any specific provisions holding third parties liable for damages resulting from interference with another’s marriage. Article 1042 of the Civil Code stipulates that bigamy is prohibited, people with spouses are prohibited from cohabiting with others, domestic violence is prohibited, and abuse and abandonment among family members are prohibited; Article 1043 stipulates that families should Establish a good family style, and husband and wife should be loyal to each other, respect each other, and care for each other. However, the prevailing view holds that these provisions are of a principled and advisory nature and do not constitute definitive normative obligations that can be directly invoked as the basis for claims. Moreover, Article 29 of the Judicial Interpretation (I) of the original Marriage Law explicitly states: The party liable for damages in a divorce is the faultless spouse in the divorce proceedings—meaning it applies only to the spouse and not to third parties.

Majority of courts: Dismissed

In judicial practice, quite a number of courts hold a negative attitude towards the non-fault spouse suing the third party for compensation, on the grounds that: the marriage relationship is relative, and the duty of loyalty mainly binds both husband and wife; the non-fault spouse can claim compensation from the fault spouse, and the "internalized" relief for the marriage relationship has been able to make up for the damage to a certain extent; if the third party is easily identified as infringement, it may make marriage a shackle to personal freedom. Accordingly, such lawsuits are often dismissed on the ground of “lack of a basis for the claim.”

A minority of courts: in certain circumstances, they exercise discretion to grant support.

Some courts have also deviated from the established approach in individual cases; however, they typically do not directly recognize the infringement of “spousal rights,” but instead invoke general personality rights or public order and good morals as alternative grounds. For example, if a third party openly provokes or insults the original partner, the court may find that it has violated the original partner's personal dignity and make discretionary compensation with reference to the rules of compensation for mental damage; or on the grounds of violation of public order and good customs, it may find that the joint act of the third party and the fault spouse constitutes an infringement on the innocent party and order it to bear the corresponding responsibility. In the case of Cai v. Ge mentioned earlier, the plaintiff sought to have a third party also issue a public apology; however, the court did not grant this request, on the ground that only the spouse who is not at fault may be held liable for damages in a divorce proceeding. It is evident that even when third-party liability is recognized, the compensation typically amounts to only a small sum and is discretionary, based on the infringement of personal rights; this approach differs from the notion of “violation of spousal rights.”

The conclusion is: there is no stable expectation of winning the claim to the third party, and whether it can be established is highly dependent on the specific case and the adjudication tendency of the court of appeal, so it is not appropriate to place the hope on this road completely when claiming.

5. A more feasible alternative path

Rather than stubbornly confronting the uncertain path of “third-party infringement,” it is better to pursue the following more reliable avenues to safeguard your rights.

Recovering marital joint property that has been gifted to others: If the faulting spouse, during the course of an extramarital affair, unilaterally gifts marital property to a third party, such gift is invalid on the grounds that it violates public order and good morals and infringes upon the other spouse’s property rights. The case of Feng Mouhui v. Li in the case database of the people's court is clear: if one of the husband and wife violates the duty of loyalty and gives the joint property of the husband and wife to a third party outside the marriage without authorization due to extramarital affairs, the gift is invalid; if the husband and wife without fault sue the third party and request the return of the donated property, the people's court shall support it according to law. The certainty of this legal avenue is significantly higher than that of "infringement of spousal rights."
Claiming a larger share of the marital property in a divorce: When dividing the couple’s joint property, the court will take into account the interests of the children, the female party, and the party who is not at fault. The other party has a fault such as derailment, which can be used as a reason to request appropriate multiple points or compensation.
apply for personal safety protection order: if the other party or the third party has the behavior of beating, harassing, stalking, threatening and so on, they can apply for personal safety protection order to the court according to the law of the People's Republic of China against domestic violence, so as to stop the ongoing infringement in time.
Investigate the criminal responsibility of bigamy: if the other party constitutes bigamy, he can be investigated for criminal responsibility according to law, and at the same time, he can claim the corresponding rights and interests in the divorce.

6. How to collect evidence

No matter which path you take, evidence is the foundation. However, evidence collection must be lawful; otherwise, you may “win the argument but lose the case.”

It is not allowed to invade other people's houses illegally: breaking into the house and shooting at other people's houses in the so-called "catching rape" may constitute infringement or even crime.
It is prohibited to illegally install eavesdropping or surveillance devices., nor shall one obtain information about another person’s private space through illegal means.
Within the legal scope, the evidences that can be retained include: chat records such as WeChat, SMS, call records, etc.; photos and videos of common access and residence; transfer and consumption records; witness testimony of the insider; birth medical certificate of illegitimate children; written explanation, guarantee or agreement made by both parties on extramarital affairs, etc.
The audio-visual materials secretly recorded in private places are often excluded because of invasion of privacy. It is better to evaluate the legality before obtaining evidence.
Pay attention to preserving the original carrier of electronic evidence and notarize it when necessary to avoid the embarrassment of "screenshots don't count.

7. Common Misconceptions

“If you catch someone cheating, you can get a lot of money in compensation.”" Infidelity is not the same as a legally recognized marital fault. General extramarital affairs and accidental relationships may not be satisfied with "living with others" or "other major mistakes", and the compensation for mental damage is usually not high. Most of the public cases are several thousand yuan to tens of thousands of yuan.
The third party must bear responsibility." As mentioned above, the law of our country does not clearly stipulate that the third party should be liable for compensation to the spouse without fault, and most courts do not support it. Whether it can support it depends on the specific situation.
“An affair is just cohabitation.”" There is a strict definition of "cohabitation with others", which refers to continuous and stable cohabitation. Equating ambiguity and short-term relationships directly with cohabitation can easily lead to unmet expectations.
You can still file a separate claim as long as you don’t get divorced." The compensation for divorce damages is based on the premise of divorce, and those who claim separately without dissolution of the marriage relationship are generally not supported.

8. Frequently Asked Questions

Question 1: If a spouse commits adultery, will I definitely be entitled to compensation in a divorce? Not necessarily. It must be determined whether the case falls within the statutory circumstances enumerated in Article 1,091 of the Civil Code, and whether there is supporting evidence. Generally, an extramarital affair may not be sufficient grounds; bigamy, cohabitation with another person, domestic violence, abuse or abandonment, or “other serious misconduct” are more likely to succeed.
Question 2: Can I sue only the third party and not seek compensation from my spouse? You can file a lawsuit, but the outcome is uncertain. Chinese law does not directly stipulate that a third party bears liability; most courts dismiss such claims on the ground that there is no legal basis for the claim.
Question 3: If compensation was not raised during the divorce, can it still be claimed afterward? It depends on the identity. As a defendant who did not agree to divorce at that time and did not make compensation, he may sue separately within one year after the divorce; if he did not give up the claim for compensation at the time of divorce by agreement, he may also file within one year after the divorce.
Question 4: After signing a divorce agreement, can you still file a claim for damages? If the agreement already contains provisions regarding compensation, the court will generally deem the matter of compensation to have been resolved and will not allow a duplicate claim.
Question 5: Can money given to a “third party” be recovered? Sure. If one party unilaterally gifts marital joint property to a third party, such gift is invalid, and the non‑faulting party has the right to demand that the third party return the property.
Question 6: What should you do if the other party and the third party are engaging in harassment or threats? Report the incident to the police promptly and preserve evidence; where necessary, apply to the court for a personal protection order to stop the abuse.

9. Practical Insights from a Lawyer

When the client asks "can the third party lose money" with the chat record, what the lawyer usually has to do first is to split the problem into two halves: to claim compensation for divorce damages from the cheating spouse, there is a clear legal basis for the right of claim, as long as the other party has legal circumstances such as bigamy and cohabitation with others, which lead to divorce, the innocent party will have the opportunity to get compensation; and claim compensation from the third party who intervened, there is no direct and uniform basis for the current law to support the high reliance on the facts of the case and the attitude of the court of appeal. Only by recognizing this distinction can you avoid misdirecting your efforts and prevent the frustration of unmet expectations regarding a third party from hindering your ability to assert your rights with your spouse.

The timing of filing a claim and the specific wording used are often the most easily overlooked aspects, yet they frequently determine whether compensation can actually be obtained. Compensation for divorce damages should generally be claimed together with the divorce. If only the divorce is filed and omitted, it is often difficult to file a separate claim afterwards. If the agreement for divorce generally states "not to pursue each other" and "give up all requests", it may also be regarded as giving up the right to compensation. In practice, a more prudent approach is to include the claim for compensation, along with the relevant facts and evidence, in the divorce complaint and during the court hearing, thereby avoiding reliance on verbal assurances. If the other party proposes a “package‑deal” settlement during mediation, first verify whether the proposal includes any compensation; do not sign any waiver clauses without fully understanding their implications.

Evidence is the cornerstone of cases of this type, but there are limits to evidence collection; one must not cross the line in pursuit of “irrefutable proof.” The materials can be fixed in a legal way around the other party's approval, correspondence records, objective traces of common residence, etc., but the contents obtained through illegal intrusion into the house, illegal installation of equipment, disclosure of the other party's privacy, etc., may not only not be adopted, but may also make oneself passive. In practice, it is advisable to first work with a lawyer to assess whether the existing evidence can establish statutory fault, and then decide whether to supplement it, rather than conducting a broad‑scale collection of evidence first and subsequently screening it. Emotionally, you should also stay composed and focus on practical demands such as child custody, property division, and compensation—these are far more meaningful than endlessly dwelling on the third party’s moral responsibility.

If you look at the question apart, the answer is clear: to claim compensation from the cheating spouse, there is a clear basis such as Article 1091 of the Civil Code, and the premise is that it conforms to the legal situation, the evidence is sufficient, and it is put forward in the right way at the right time;"The Third Party"Regarding claims for compensation, Chinese law does not provide explicit provisions; there are significant discrepancies in judicial practice. Most courts do not grant such claims, while a minority may, on a case-by-case basis, uphold them under the frameworks of personality rights or public order and good morals. Therefore, it is safer to fix the evidence first, give priority to claiming compensation for divorce damages from the spouse, strive for more property in the divorce, recover the common property of the donated third party and other more certain paths, and take "suing the third party" as a supplement rather than the only option. The law protects the legitimate rights and interests, and also requires those who claim the right to choose the right path, prepare the evidence and keep the legal boundary.