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Fault in the divorce

(2011-03-22 12:20:35)
标签:

divorce

fault

mental

damage

compensation

杂谈

It is always a big problem that bothers me from time to time when my client comes to me, claiming the other party is cheating on her and how much mental damage she has suffered. Therefore, she is justified to claim mental damage compensation from the other party for his default. Whenever that happens, I always feel a little bit powerless as the claim for mental damage compensation will be hardly supported unless the four extreme situations prove to exist, no matter how serious the fault is to the party who gets cheated.

Pursuant to Chinese Marriage Law, article 46 Article 46 where one of the following circumstances leads to divorce, the unerring party shall have the right to claim mental compensation:

1. bigamy is committed;

2. one party who has a spouse cohabits with another person of the opposite sex;

3. family violence is committed; or

4. a family member is maltreated or abandoned.

The provision directly overrules my client’s claim for mental damage compensation as more often than not, the fault exists but the awareness of such fault

 does not necessarily mean the ability to prove such fault, to say nothing of the proof of bigamy or cohabiting. If there exists the proof of bigamy, the party who has fault can even directly file a criminal case for bigamy. Therefore, it is true in China, for now, the price for cheating under Chinese laws is not big and the conditions set for mental damage compensation are too harsh. To be exactly speaking, the fault in divorce case can only be found to exist if any of the four extreme situation occurs.

As per Interpretations of the Supreme People's Court on Several Issues about the Application of Marriage Law of the People's Republic of China part 1, the term "compensation for damages" as mentioned in Article 46 of the Marriage Law includes compensation for physical and mental damages. In addition, Article 30 under the Interpretation provides when the people's court accepts a case of divorce, it shall notify, in writing, the parties of the relevant rights and obligations as described in Article 46 of the Marriage Law. In the application of Article 46 of the Marriage Law, it shall differentiate the following circumstances:

(1)If the innocent party who meets the conditions in Article 46 of the Marriage Law, on the basis of this Article, wants to claim for compensation for damages in the people's court, he (she) shall do so when initiating the lawsuit of divorce;

(2)If the innocent party who satisfies the conditions in Article 46 of the Marriage Law, is the defendant in a divorce litigation case and if he (she) does not consent to divorce nor claim for any compensation under this Article, he (she) may initiate a lawsuit separately within 1 year after the divorce;

(3)In a divorce litigation case where the innocent party is the defendant, if the defendant, during the first instance, fails to claim for compensation according to Article 46 of the Marriage Law, but he (she) claims for compensation in the second instance, the people's court shall conduct a mediation. If the mediation fails, the people's court shall inform the parties concerned to initiate a separate lawsuit within 1 year after the divorce.

In a word, whether compensation for mental damage or for property loss is based on whether any one of the four extreme situations is proved to exist. Furthermore, how to prove the property loss that occurs out of such default remains a mystery.

Even the fault is found to exist, there remains a big question, how much will the court support the mental damage compensation. Chinese court is notorious for the low compensation and to get the compensation for the mental damage, the following factors will be considered by court in compliance with Interpretation of the Supreme People's Court on Problems regarding The Ascertainment of Compensation Liability for Mental Damages in Civil Torts, the extent to which the party commits the fault, the circumstances like the means, place to commit the act, how the act is committed and etc, how much the mental damage has been caused by the party who commits the fault to the other party with no fault, the economic capability for the party who commits the fault to bear the liability and the average local life level. As far as I am concerned, compensation for mental damage suffered by the victim party in a divorce case is rare and the amount is no more than 50,000 yuan RMB.

Yeah, it is really a pity the loyalty in a marriage is not worth much, is it?

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