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Evidence, evidence and evidence, part 1

(2014-10-30 14:48:06)
标签:

evidence

divorce

When a divorce is coming, a female client will always have so many stories to tell and always believe what she tells is the truth and all the truth. When I ask her about what to support her stories and more often than not, she will feel hurt and wonder why I just can not believe her.

Yes, I trust my client and I will never choose a client that I do not trust. However, it is in China. No judge will give attention to your story unless you submit qualified evidence to prove what you are telling or unless you acknowledge what is against you. Of course, the evidence has to be valid and acceptable to the court. Sometimes, the clients just show you piles of piles documents with nothing useful for the case. It is up to the lawyer to help the client sort out what are useful evidences and what are not. But it is up to the client to collect the evidences necessary for the coming lawsuit with the lawyer’s guidance as the evidences involved in divorce are hardly accessible to the lawyer even with a court order like the bank account information. I will prepare a series of articles which will give you a basic idea about what are necessary evidences in a divorce case. As cases vary and what clients are looking for in different cases differ, hope these articles will give you some hint where to start when you decide to go the divorce step or when you are served out of the blue the divorce papers from the court.

As divorce is about three issues, divorce or not divorce, child custody and the division of community assets, this part elaborates on what is the evidence necessary about the first divorce issue..

Divorce or not divorce.

Under Chinese Marriage Law, the only reason to grant the divorce by the court is that feelings between the two are totally broken and the mediation fails. There are five extreme situations if proved to be available which will be qualified for a divorce judgment. (1) One commits bigamy or the married person cohabits with a third party; (2) One commits domestic violence or maltreats or abandons the family member; (3) One has addiction to gambling, drugs and remains unchanged;(4) There exists separation of two years because of the broken feeling between the couple; (5) There exists other situation that leads to the broken feeling of the couple. If one party is declared disappearance at court, the other party will be granted a divorce judgment if she or he files the lawsuit.

Well, the feelings between the two are totally broken is a very subjective criteria and without the other party’s approval, a quick divorce in China is almost impossible if any of the five extreme situations is missing.

In real life, the separation seems to be the only practicable reason to the clients to get a divorce judgment at court. Take care, in China, there is no automatic divorce even the separation lasts two or more than two years. So what is the qualified evidence to prove a separation.

1.      A lease contract between you and the landlord to prove you are renting the place for some time which is different from the place your wife or husband is living in.

2.      A statement from the local neighborhood community that you are living alone in the same place for some time. Local neighborhood community in China is in charge of population registration and management. Therefore, statement issued by such an organ will most probably be accepted by court as true and valid.

3.      A statement from the property management unit that you personally have been living the same place for some time. Such a statement has to be stamped instead of being signed by some individual.

4.      A signed separation agreement between the couple which fixes the date of separation and the reason of separation.

5.      A signed divorce agreement between the couple which makes clear when the separation starts.

6.      Statement from a third party like a friend with whom you are sharing the apartment. However, given the relation between you and the third party, the truthfulness of the statement will be greatly doubted, thus the validity of such a statement will be greatly discounted.

7.      Any other documents which can prove you are living apart from the other party for some time.

Points have to be made out: 1. Separation exists because feeling between the couple is broken. Separation because of work, study, illness will not be accepted as a valid separation at a divorce court. 2. Living under the same roof but in different rooms is not a valid separation. 3. Separation has to be absolute instead of in between which means if the other party proves that you two are living together during the separation even if only once or twice, your separation evidence will probably be destroyed.

That you have the separation evidence solid and valid does not necessarily mean you will get the divorce judgment for the first time when a divorce lawsuit is initiated by you if the other party says no to the divorce. It is well known divorce in China is time consuming even if there is no marriage that can not be divorced. However, in first or second or even third divorce lawsuit, separation between the two is a must and is continuous. Otherwise, a divorce judgment is almost impossible.

Nowadays, domestic violence is becoming one of the main marriage killers apart from the extra marital affair and with proved domestic violence, the court will give the divorce judgment even if it is the first time the victim files for divorce. But domestic violence needs strong evidence to prove and the chance for court to identify the existence of domestic of violence is quite small given the difficult to collect the domestic violence evidence. In the article from Jiang Su Court website,  Analysis about the divorce cases involving domestic violence,

http://www.jsfy.gov.cn/llyj/xslw/2014/10/23160514740.html, among the 33 cases involving domestic violence, no domestic violence is identified and 7 couples are granted divorce while divorce to the other 26 couples is denied. In the 33 cases, only 7 victims submit the evidences of domestic violence while the other 26 victims have only oral statement of domestic violence. For the 7 cases, the evidences come from police reports and hospital medication records. Police reports and records are too simple and far more enough to prove the existence of domestic violence. In real life, when domestic dispute occurs unless there are serious circumstances like bodily injury, the police bureau will solve the issue through mediation and if the mediation fails, the victims will be advised to go to court. For hospital medication records, they only prove the victims go to the hospital for treatment of wound but can not prove that wound is caused by domestic violence. Also, two or three police records or medication records can not prove domestic violence as violence has to be continuous, repeating and causing certain harm. The burden of proof is just too heavy for the victim. With the whole society’s ever increasing attention to domestic violence, change will take place about the rule of proof for domestic violence and victims may have more remedies like person protection order, restraining order and etc.

If you take a close look, extra marital affair is not a solid reason for divorce even though it is the No. 1 killer in Chinese marriage. Extra marital affair only proves you two have some problem with the marriage and only bigamy or cohabiting with a third person is the legal valid reason for a divorce judgment. But bigamy needs to be identified by a criminal court while cohabiting with a third person needs you to have a continuous access to where the husband or wife and the mistress or the boyfriend lives. That needs resources and most clients give up half way.

My advice is always to get separated before a divorce lawsuit is initiated and get a separate agreement if possible.

 

 

 

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