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Part Ⅰ In what conditions will the court make a divorce judgment?
Generally speaking, judges will adhere to unwritten but commonly-used rules in making judgment, which means under the precondition that there are no specific laws and regulations and the defendant resolutely opposes to divorce, the court shall not presume the breakdown of marriage and approve divorce. To every plaintiff who seeks professional help through the court, they expect to get divorced for only one time. So, what kind of evidence is essential to reach the object of getting divorced in the first instance?
At present, criteria used by most judges in divorce cases around the world are the fact “whether both parties are faced with breakdown of marriage.” So, what kinds of circumstance belong to this scope? Pursuant to Article 32 of Marriage Law of P.R.C, there are 5 possibilities that the court shall make the judgment of divorce.
1. Bigamy or cohabitation with a married person
2. Implementation of family violence, abuse or desertion of family members
3. Habits of gambling or drug-taking and refusal to mend his ways despite of repeated admonition
4. Separation for two years because of emotionally disharmony
5. Other instances causing breakdown of marriage
Besides, in case one party absconds, the other party has the right to apply for divorce.
Pursuant to the above-mentioned laws and regulations, as long as one party of the marriage proves to be involved with bigamy, cohabitation with a married person, implementation of family violence, abuse or desertion of family members, bad habits of gambling or drug-taking and unwilling to mend his ways despite of repeated admonition and separation for two years, in the event that the court’s mediation is invalid, the court should grant the divorce request. Please note that the wording used herein is “should grant divorce” instead of “may grant divorce”. Therefore, it is the essential legal ground for the court’s judgment of divorce. The following is the detailed analyses concerning this:
1. Bigamy or cohabitation with a married person.
Bigamy is a legal concept, which refers to the offense of getting married with a married person or remarrying in the married status. Generally speaking, bigamy can be classified into two parts:
1) Registration for marriage with a married person or remarrying in the married status at the civil affairs bureau.
2) Without marriage registration, the person involved cohabits in a long-term state with a married person in the name of couple. For instance, both parties call each other with the titles of wife and husband or their behaviors are believed to be the conjugal relation in the eyes of neighbors for a successive period of time (usually at least several months), thus, bigamy is committed. Bigamy not only seriously violates Marriage Law, but also Criminal Law , pursuant to the relevant laws and regulations, offense of bigamy can be sentenced to fixed-term imprisonment for two years or below or detention.
Although the penalty of bigamy is comparatively more severe, yet it is hard to collect the evidence that can testify the bigamous behavior of the other party. Generally speaking, if the party concerned denies the bigamous behavior, sufficient evidence concerning this should be provided, such as the evidence or evidence issued by his neighbors or the residential committee where the party concerned lives or other mutual proofs between the other party and the lover, such as the correspondence between the parties concerned who committed bigamy. Relatively speaking, it is extremely difficult to collect evidence concerning bigamy; that is why plenty of meticulous work is required.
Difference between cohabitation and bigamy lies in that cohabitation doesn’t form conjugal relations, but both parties live together for a successive period without calling each other as husband or wife in public. Actually, it is not true that an illegitimate child can be regarded as evidence for bigamy, because cohabitation must last for a period of successive time of living together, while a sexual behavior out of the wedlock may lead to the birth of an illegitimate child. Therefore, the illegitimate child cannot be the crucial evidence for the commitment of cohabitation.
Proving the commitment of cohabitation is a tough job. First, evidence should be provided that both parties live under the same roof for quite a long period of time, such as two months or three months.
Relevant case
Mr. Zhu and Ms. Peng got married on March.3.2002. After marriage, they have no issue. Since the beginning of 2004, both parties separated owing to emotionally disharmony. Peng lived alone in the house located around Fafuazheng Road, which was purchased jointly after their marriage, while Zhu rented a flat outside. In May 2004, Peng heard that Zhu cohabited with his female co-worker, so she asked for a person to track Zhu secretly. After a span, Peng found that the female co-worker of Zhu, called Mrs. Jiang (Pseudonym), frequently came in and out of Zhu’s rented flat, so she tried to shoot situations of their being together. On a night of July 2004, at about 1 o’clock midnight, Peng, with her parents, elder brother and friends, altogether 6 people, intended to break into Zhu’s flat. However, Zhu refused to open the door, so Peng reported to the police. Ten minutes later, the policemen came, but they thought they couldn’t break the door by force. Afterwards, Peng’s brother kicked the door open regardless of others’ dissuasion, and they found Zhu and his female co-worker sitting in the room. Both parties came to blows in face of the situation. The policemen came to the spot for mediation again, and finally both parties were brought to the police office to take down in writing.
Before long, Peng brought a divorce case to the court and requested compensation for spiritual damage.
Peng claimed that she married Zhu in March 2002. After the Spring Festival of 2004, both parties separated owing to the emotionally disharmony. On June.12.2004, the defendant, Zhu, was caught on scene for cohabiting with the other person, with the policemen’s written record for proof. The plaintiff maintained that their marriage breakdown was caused by the defendant’s extramarital affairs, so subject to Article 105 of The Civil Procedure Law of P.R.C and Article 46 of Marriage Law, she went to law for the divorce and requested for 50,000 Yuan as the compensation for spiritual damage.
Zhu argued that he broke down with the plaintiff due to emotionally disharmony. It was the plaintiff’s hot temper and suspicion that led to continuous conflicts between each other. So, the defendant agreed to get divorced, but he didn’t admit cohabitation with the other person, so the request for compensation for spiritual damage couldn’t be accepted.
The evidence collected by the plaintiff Peng to the court:
1) The marriage certificate of the plaintiff and the defendant to testify their conjugal relation.
2) The written record of the policemen as the proof for the defendant’s cohabitation with the other person.
3) A set of witness evidence with a description about the course of the event at the defendant’s flat on July.12.2004.
The evidence collected by the defendant Zhu to the court:
1) The defendant’s lease contract, testifying the flat doesn’t belong to common property. So, the plaintiff’s elder brother’s break-in by violence was not legal.
2) The lease contract of the defendant’s colleague, Ms. Jiang, testifying that she has her own dwelling.
3) A set of witness evidence, testifying that the defendant and Ms. Jiang are colleague relation.
The court’s adjudication after hearing the case: after the plaintiff and the defendant got married in 2002, their marriage broke down due to emotionally disharmony with constant conflicts and disputes and the plaintiff’s frequent suspicion for the defendant’s extramarital affairs. Both parties agreed to get divorced by mutual consent. Evidence presented by the plaintiff couldn’t manifest that the defendant conducted cohabitation. So, her request for compensation for spiritual damage cannot be granted. The main clauses for the court adjudication are:
1) Both parties are sentenced to get divorced.
2) The premises purchased after their marriage belong to the female party, while she should, within 30 days after the written judgment takes effect, pay 520,000 Yuan to the male party as the housing depreciation payment for the premises.
2. Implementation of family violence, abuse or desertion of family members.
In accordance with the judicial interpretation of China Supreme Court concerning Marriage Law of the People's Republic of China (implemented on Dec 25th 2003), family violence refers to the behaviors that the doer causes physical or mental damage to the family members by assault and battery, binding, cruelly injuring, or restricting personal freedom or any other means. The continual or regular family violence constitutes the act of abuse.
Family violence seems to be more and more frequent nowadays, however, not all the maltreatments or quarrels constitute the act of family violence. The legal requirements for family violence are that such maltreatments must have caused physical or mental damage to the family members. For example, several slight contusions of the soft tissue or the temporary flesh wounds cannot be defined as family violence by the court, unless the assault and battery has caused damage above the degree of a light injury.
To prove the occurrence of family violence, we hope the persons involved, especially the feeble female party, should increase the ideology of collecting relevant evidence. After the occurrence of family violence, submitting to humiliation by holding the psychology of “ Do not wash your dirty linen in public” is not appreciated. The outcome of such forbearance will lead to more furious and more unbridled family violence, just like the plots in the TV Drama 《Do not speak to strangers》. Therefore, in face of the occurrence or the impending family violence, you’d better instantly turn to the policemen or staff in the residential committee for help. From our experience, if there is family violence, generally, the policemen will come to the scene if you dial 110, which is their responsibility. The person involved should insist, if the policemen are unwilling to go to the scene. As for seeking help from the residential committee, in Shanghai, the staff will directly turn up for mediation or offer help. In the relevant cases in Shanghai, nearly all the residential committees are willing to offer witness and mediation assistance.
Abuse or desertion of family members are relatively rare, up to now, I haven’t met with a case of this kind, so I am not going to elaborate more.
Relevant case
Ms. Zhang and Mr. Liu registered for marriage in 1992 in Jiangsu Province. In 1997,Liu, with his wife Zhang, transferred to work in Shanghai and both of them transferred their registered permanent residence to Shanghai. In 1994, they gave birth to a daughter called Liu, who is now 11 years old. On September 2004, Zhang appealed for divorce at the People’s Court of XYZ District in Shanghai.
The plaintiff Zhang claimed that the defendant Liu and she got to know each other when they were in childhood. In 1992, they got married in their hometown through relatives’ introduction. At that time, Liu was a cadre of the regiment rank in a certain military unit of P.L.A. And they moved into the army barracks soon. Liu was easygoing and outward, but at home, he exposed his hot temper completely. He often vented his anger on her by beating or scolding, if things did not go as he wished, often making his daughter crying. She had turned to hospital for treatment due to the serious conditions of injury for several times. Taking account of the little daughter, she had not brought forward the request for divorce. But now she couldn’t endure any more, otherwise, she had no choice but to die if maintaining the marriage full of pains and tears. So, she appeals to the court for the divorce.
The defendant Liu argued that: the plaintiff Zhang and he got to know each other since the childhood and got well along with each other since then. After they married in 1992, he actively applied for the plaintiff’s stay in army barracks and went through the relevant procedures, in order to avoid separation. After that, he landed jobs for the plaintiff through friends. At last, the plaintiff had a relaxed and decent job as an accountant in the tertiary company affiliated to the original army. Owing to the defendant’s job functions, a non-civilian officer, he was easy to lose patience or acted violently, but he had changed his temper a lot since he was transferred. Before the plaintiff’s appeal for divorce, they quarreled due to some family trifles, and he unwittingly knocked the plaintiff down, causing a slight cerebral concussion, which was absolutely not on purpose, including those wounds on face and arm and the bruise on head caused by hit. Now, the defendant has realized his mistakes, so he begs the court to give him another chance to repent and start anew.
Evidence afforded by the plaintiff Zhang:
1) Two sheets of wounds examination on March.7.2004 and August.21.2004 issued by the certain hospital in Pudong District－The conclusion: contusion of soft tissue and slight brain concussion.
2) Evidence of the witness Liu－It proves that the plaintiff was beaten up by the defendant with his own eyes.
Evidence afforded by the defendant Liu:
1) Letters between the plaintiff and the defendant from 1987 to 1992 before marriage－It proves that their marriage had a better foundation.
2) Evidence of the witness Hua, an officer in a certain army－It proves that the defendant made great effort for the family reunion.
3) The defendant’s record for treatment for several contusions on August.21.2004－It proves that the wounds were caused by a hand-play with the plaintiff.
The court’s judgment－The plaintiff and the defendant got to know each other since their childhood, so they had a better matrimonial foundation. After marriage, both parties quarreled for family trifles rather than substantial discrepancy. Furthermore, the defendant has showed his regret for his violent attitudes for the plaintiff. In the principles of mutual respect and understanding between the couple, the plaintiff should cherish the family. As for evidence concerning wounds and seriousness caused by family violence provided by the plaintiff, the count cannot accept owing to insufficiency. So, the court adjudicates that the plaintiff’s request for divorce cannot be supported.
3. Habits of gambling or drug-taking and refusal to mend his ways despite of repeated admonition.
The court may adjudicate divorce based on one party’s incorrigible habits of gambling or drug-taking, at least two or three times of education with sufficient evidence. In other words, the court has relatively serious standards concerning this aspect. Slight gambling, such as gambling for recreation at one’s leisure time without serious influence on work or life shall not be recognized as gambling.
As for drug-taking, the standard is even more serious. The party addicted to drug has been sent to the drug rehabilitation center for more than two times but in vain and the party has brought about great negative influence on the family. Under such circumstance, the other party’s request for divorce shall be supported by the court.
Relevant case
Ms. Hua and Mr. Chen got married in 1987. In 1997, Hua was laid off and embarked on the job of taxi-driving. Since the beginning of 2002, influenced by the surroundings, Hua had addicted to gambling, from small gambling of 3 or 5 Yuan per stake to the situation that 3000 or 4000 Yuan’s monthly income could not afford her gambling once. Therefore, Chen and her daughter (born in 1989, 16 years old, a Grade 2 student in a senior high school) dissuaded her mother from gambling, and even the officers from the residential committee had mediated for many times, but all in vain. Since the later half year of 2003, Hua sold family possession for bets and even used up her daughter’s tuition fees. During the Spring Festival in 2004, Hua was arrested by a certain police station of XYZ District in Shanghai on gambling gathering for 10-day detention. However, after the release, Hua began to gamble again in not more than a month, making her family live under the threat from the persons who urged for debts every day. So, in September 2004, Chen brought the divorce case to court. The court adjudicated the divorce because Hua’s incorrigible liking for gambling led to the breakdown of marriage. Chen shall bear the responsibility of child custody of their daughter, while Hua should pay him 300 Yuan per month as the costs of aliment. After the first instance, both parties didn’t lodge an appeal.
4. Separation for two years because of emotionally disharmony.
Living together is the basic right and obligation to the couple; otherwise, it can only be called marriage nominally. Hence, pursuant to the relevant laws and regulations, in case both parties separate for two full years because of emotionally disharmony, the court shall grant divorce. But please note, such kind of judgment for divorce must satisfy the following three conditions:
1) Separation. The couple doesn’t live in one room and doesn’t have sexual life even if they live under one roof. Of course, such fact should be supported by evidence or the defendant’s admission. For example, the other party’s lease contract for another flat. In other words, it is hard for the court to recognize separation if the couple lives under one roof or in one flat.
2) Separation because of emotionally disharmony. For example, one party lives abroad for 4 years, while the other party lives in the mainland; or one party lives in Shanghai, while the other lives in Beijing, therefore, the party unwilling to get divorced may argue that their emotional problems are not caused by emotionally disharmony but jobs, which brings about difficulty for the court to adjudicates divorce. So, relevant evidence that convinces the court of factors in emotionally disharmony should be submitted.
3) Separation for two full years. The legal ground for judgment upon divorce should be two years from the verified separation to the lawsuit. Pursuant to 《the Supreme People’s Court’s Judicial Interpretation concerning the Recognition of Marriage Breakdown》, originally the legal ground for divorce should be three-year separation, while the current Marriage Law has amended it to two-year separation, which is more personalized in modern society.
Relevant case
Mr. Ou and Ms. Mei registered for marriage in 1993 in Jiangsu Province. In 1995, Ou went to U.S.A for further study and Mei went there in 1997 to accompany him while studying. In 1999, Ou returned to China for his business, but Mei entered into American citizenship in 2000 and stayed in U.S.A. Both parties gave birth to a daughter called Outing in 1998 in U.S.A, so their daughter acquired American citizenship and studied in U.S.A as well. Now Mei brought a divorce case to the certain people’s court in Shanghai.
The plaintiff Mei claimed that both parties got married in 1993 and they studied abroad in U.S.A in 1995 and 1997 respectively. In 1999, Ou returned to China, so both parties began to separate. Since 2002, Mei returned to visit with her relatives for the last time and they hadn’t seen each other since then. Now the plaintiff had made up her mind to live in U.S.A with the American citizenship, and both parties had separated for more than two years, so she brought a divorce case to the court and applied for the child-care right.
The defendant Ou argued that he fell in love with Mei on free will and after marriage, they went to U.S.A for study together for the same aspiration. Through their efforts, Ou obtained qualification for a certain well-known institute of commerce in U.S.A and then he was granted a signature loan for $50,000 from National City Bank of America as the tuition fees, which contributed to Mei’s study in U.S.A. Under the support of Ou, the plaintiff studied while working and was finally recruited by the same institute. After that, under the Mei’s support, the defendant Ou returned for his own business development other than emotionally disharmony. Besides, both parties communicated with each other through emails, though they hadn’t seen each other for two years. Hence, the defendant thought that there was a good chance of reconciliation for both parties and he had made up his mind to promote exchanges between each other and he even planned to have a family reunion with the plaintiff in U.S.A.
After the trial, the People’s Court of XYZ District in Shanghai made the following judgment: The plaintiff and the defendant got married on free will and they gave birth to a daughter in U.S.A. The main problems of both parties were that they had to live in two countries owing to jobs, so they had less and less exchanges between each other. In other words, their separation was not caused by emotionally disharmony. The couple should have more mutual understanding and affections to enhance exchanges between each other. So, the court rejected the plaintiff’s request for divorce. After the judgment for first instance, both parties didn’t lodge the appeal.
5. Other instances causing breakdown of marriage.
This is the complementary article, granting the judge the power of free adjudication. In other words, the judge can make kind of judgment lake of relevant legal grounds based on his own conscience. Generally speaking, other instances causing breakdown are summarized in the following:
1) One party is a sex offender, so the other party requests for divorce.
2) One party has frequent extramarital affairs including physical and psychological betrayal, so the other party requests for divorce.
3) One party’s moral character extremely corrupts.
Part Ⅱ In what conditions may the court make a divorce judgment?
Detailed Suggestions concerning How to Recognize Marriage Breakdown for the People’s Courts in Divorce Cases issued by the Supreme People’s Court in November 1989, has no substantial conflicts with Marriage Law of P.R.C revised in 2001, so it is also regarded as legal grounds for the court judgment in practice.
Pursuant to Detailed Suggestions concerning How to Recognize Marriage Breakdown for the People’s Courts in Divorce Cases, the People’s courts shall use criterion on whether both parties’ marriage has really broken down for the judgment of divorce. The court shall make a comprehensive analysis on marriage basis, relations after marriage, and reasons for divorce, the state quo and possibility of reconciliation and so on. In accordance with the relevant regulations of Marriage Law of P.R.C and practical experience in trials, the court shall approve divorce in line with laws under one of the following situations, in case one party resolutely requests for divorce or they cannot reconcile through mediation:
1) One party suffers from the diseases that legally prohibit him from getting married, or one party is physiologically incapacitated or for other reasons one party loses sex instincts, which is difficult to cure.
2) Both parties got married without due care and mutual understanding, so they are difficult to live together.
3) Before marriage, one party conceals his history of mental disorder, which cannot be cured after marriage; or one party suffers from mental disorder and cannot recover through long-time treatment during the family life.
4) One party cheats the other party or plays tricks on marriage registration in order to get the marriage certificate.
5) After the marriage registration, both parties separate and cannot reconcile any more.
6) Through arranged marriage or mercenary marriage, one party requests for divorce soon after the marriage or both parties cannot build affections through several years’ family life.
7) Both parties have separated for three full years owing to emotionally disharmony and there is no chance of reconciliation for them; or both parties separate for another one year after the court’s judgment of dismissing request for divorce.
8) One party commits adultery or illegal cohabitation and refuses to mend his faults despite repeated admonition. No matter which party requests for divorce for another time, unimpeachable or impeachable, the court shall judge divorce if there is really no chance of reconciliation.
9) One party commits bigamy.
10) One party is much too indolent to do any household chores or forms bad habits like gambling, so both parties are hard to live together.
11) One party is sentenced for long-term imprisonment or his/her offenses have seriously hurt the conjugal relation.
12) One party has been unaccounted-for for 2 full years. In case the other party brings a divorce case to court and the party cannot be found through public announcement, the divorce shall be adjudicated.
13) One party is abused or deserted by the other party, maltreats or is maltreated by the other party’s relatives. The impeachable party refuses to mend his/her faults despite repeated admonition or cannot be tolerable by the other party.
14) Other reasons leading to marriage breakdown.
Relevant case
Ms.Yu and Mr. Xiao got to know through their parent’s introduction in December 2003 and registered for marriage in May 2004. They held their wedding ceremony on May.18. 2004 and Yu brought a divorce case to the certain people’s court in Shanghai.
Yu claimed that both parties got to know through introduction in December 2003 and registered for marriage in May 2004. They didn’t sleep together until the end of their wedding ceremony on May.18.2004. At that night, they didn’t have sexual intercourse, but Yu didn’t care more about it, as she guessed he was too tired due to the marriage. However, in the following one week, they still didn’t, so Yu told her mother about the situation. Learning about that, Xiao’s parents took him to the certain hospital in Changning District. The doctor’s diagnosis was that Xiao’s temporary physiological incapacity was caused by his over-long prepuce, but after the operation, Xiao still couldn’t conduct a sex instinct act. After that, through several hospitals’ treatment, they made nearly the same diagnosis that Xiao’s disease can be cured by taking medicines, but all the efforts sounded no effect at all. The plaintiff maintained that the defendant concealed his physiological incapacity, which cause mental suffering to the plaintiff, however, the defendant and his mother didn’t show sympathy for the plaintiff but unscrupulous blame and offensive words, which led their controversy towards deterioration. So, the plaintiff brought a divorce case to court.
The defendant argued that his physiological incapacity was caused by his psychological stress and the plaintiff didn’t cooperate well. Besides, The hospital testified that the defendant had no sexual dysfunction.
Therefore, the court rejected the plaintiff’s divorce request, as unsuccessful sexual intercourse may be out of various reasons and both parties lived together not for quite a long time. Furthermore, the judge suggested both parties should take joint efforts to overcome the difficulty, for example, the plaintiff should give the defendant more time to get with the obstacle, while the defendant should take active measures to nurse himself physically and mentally.
Part Ⅲ How many kinds of evidences are there in the divorce lawsuits?
The basic principle of the court in conducting divorce cases is to give more care to the party without any faults. That is one of the main benefits to collect evidence concerning the other party’s offense. In practice, offence herein refers that the other party commits such behaviors as extramarital affairs, family violence, bad habits, malevolent transfer or concealment of common property and false evidence.
Although divorce cases mainly consist of three parts: evidence concerning marriage breakdown, child custody and common property division; the party involved feels hard or perplexed to collect relevant evidence of the other party’s offense. In case the party cannot offer favorable evidence for his or her argument within the time limit of evidence collection, usually the party has to bear due consequence or the party’s request may be rejected by the court. Therefore, it is especially necessary for the party involved and the lawyer to collect relevant evidence in divorce cases, in particular, the other party’s offense, for the purpose to obtain more benefits.
Pursuant to Article 63 of Civil Procedure Law of the P.R.C, the following kinds of evidence are applicable to civil lawsuits:
1) Written evidence
2) Material evidence
3) Audio and visual materials
4) The witness’s evidence
5) The party’s Evidence
6) The expert conclusion
7) Written notes of inquisition
Generally speaking, the above-mentioned kinds of evidence are widely used in divorce cases, especially in the aspect of the other party’s offense, however, some parties involved hold wrong opinions in collecting and using evidence, as they maybe just browse through relevant laws on marriage or inquire some lawyers or experienced friends in this aspect in face with the divorce lawsuit. Besides, some parties involved maybe quote the relevant laws and regulations out of context or only care about those articles favorable to themselves. Furthermore, some wrong-headed versions spreading in society may mislead the parties, causing invalid efforts and unnecessary expenses, such as who sues first has to suffer losses; The party enjoying the child-care right may possess more common property; If one party opposes to get divorced, the judge is sure to dismiss the other party’s request for divorce for first instance; The party is sure to obtain compensation with the evidence concerning the other party’s extramarital affairs and so on.
Part Ⅳ Is it worth one party’s effort and money to investigate the other party’s adultery ?
In divorce cases we’ve dealt with up to now, nearly half of them are caused owing to the third party’s intervention. Some parties without any faults may spare no expense to collect the other party’s offense by hiring private detectives or so, but neglect the importance of investigation on common property and property insurance. So, from our personal viewpoints, if the other party’s offense doesn’t relate to the several situations elaborated in Article 46 of Marriage Law, such as bigamy or cohabitation, it is unnecessary to spend too much money and time collecting evidence concerning the other party’s extramarital affairs. Because it is really difficult to obtain direct evidence and the court may not recognize the extramarital affair even the party has much indirect evidence. In addition, even though the party obtains the evidence of the other party’s extramarital sexual behaviors, such evidence is just regarded as a proof for the party without any faults to possess more common property, not enough to apply for compensation for spiritual damage in line with Article 46 of Marriage Law of the P.R.C. The party without any faults enjoys the edge in property division only in quantity rather than in quality.
Part Ⅴ What should be done to collect the evidence concerning after-acquired community property?
In more than 40,000 divorce cases in Shanghai per year, only 40% go through divorce proceedings. Anyway, no one is willing to take a legal action and nearly all of them going to law cannot reach agreements on property division. The plaintiff should have make good preparation before the lawsuit, as in Shanghai, generally the courts may offer the plaintiff a time limit of evidence collection, pursuant to the Supreme People’s Court’s relevant regulations (The time limit for simple procedures may last for 15 days to 70 days, while for the ordinary procedures, it may last for one month). In case the plaintiff cannot afford evidence within the time limit, he or she may get into dilemma or lose the chance of property division, as usually the court shall not notice the plaintiff that he or she has lost the right to give evidence, in spite that some experienced lawyers may remind their clients of the time limit in time. Furthermore, try to exercise your right to apply for the court investigation. In divorce cases, a great deal with evidence concerning common property can only be obtained by court. For instance, bank deposits or stock scripts can only be investigated by the court or be collected by the lawyer with the letter of judicial investigation; even some companies may require the judicial letter for offering their employee’s salary information. Other expertise reports, such as price evaluation and paternity test and the like, should be authorized by the court initially. Therefore, it is of great importance to exercise your right to apply for the letter of judicial investigation.
In applying for the letter of judicial investigation, the party involved should not be afraid of two things: one is that the party should feel free from some judges’ impatience for troublesome matters. It is reasonable that judges like to deal with simple cases, because as for a relatively complicated case, the lawyer may have to request for the letters of judicial investigation or apply for the letter of judicial investigation again and again. However, the party involved who enjoys such right needn’t care too much about the judge feelings, as the final adjudication may influence your whole life. Even though some individual lawyers, who have come into contact with the judge for many times, may spare the judge’s feelings at the expense of the client’s benefits. Therefore, I’d like to remind that a lawyer, who holds on his or her principle or stands up the most for the client’s rights and interests, is of great importance to the client, even if the expenses may be a bit higher. Of course, most judges are very dedicated to their profession. Once we dealt with a divorce case concerning property division in Pudong New area, Shanghai, we altogether applied for the letters of judicial investigation for more than ten times, but the judge never complained at all, better safeguarding the client’s legal benefits.
Relevant case
Mr. Zhao and Ms.Liu got married in 1995 and both parties registered for divorce at civil affairs bureau of XYZ District in Shanghai, as Zhao committed extramarital affairs. Both parties came to the following agreements in their divorce agreement:
① Both parties got divorced by mutual consent.
② The daughter born in wedlock is brought up by Liu, while Zhao should pay 1000 Yuan per month as the costs of aliment.
③ The premises located at Room 22, Lane XYZ, Siping Rd, in Shanghai belong to Liu.
④ Stocks under Zhao’s name are possessed by Zhao himself.
In November 2004, Zhao remarried with Ms. Qian. However, in February 2005, Zhao died of illness, thus a dispute concerning legacies occurred. In dealing with Zhao’s legacies, Liu found that Zhao concealed a great deal of common property during their divorce, with several premises, bank deposits, enterprise equities and insurance, etc. Liu tried her best but collected indefinite information about the direction of premises and the insurance company only.
So she commissioned a lawyer to investigate, the whole process of which needed more than 10 letters of judicial investigation for three times. Because in this case, clues for property were too complicated and new clues turned up without end. To our joy, the judge in charge of the case was very kind and cooperated after listening alternatively to the lawyer’s reason for the application. With the court’s support, we helped our client find out at least some millions of new common property.
Part Ⅵ What are the points should we pay attention to in the evidence collection?
1. Written evidence.
Written evidence refers to written materials in the form of characters, signs and pictures to testify the facts. In divorce cases, written evidence is widely used. For instance, the marriage certificate, a letter of notarization, a warrant, a testament, a receipt for a loan, love letters and the like. However, such written evidence has internal defects.
① Defects on forms. Take the marriage certificate as an example, some individual parties’ marriage certificate was registered by relatives or friends rather than the parties themselves; or the marriage certificate was purchased in terms of cash without legal validity. Thus, a series of problems may incur in divorce cases, but at present, such situations mainly occur in the middle or small cities or villages in the hinterland, while in Shanghai such situation has never happened.
② Defects on contents. For instance, in divorce agreement, normally, the divorce agreement should consist of three parts: consensus on divorce, property division and the child-care right, with definite and detailed contents and easy to execute. However, some parties involved neglect the integration and feasibility of the basic contents, leading to invalidity of the divorce agreement. For example, in a divorce agreement, it puts that common property should be divided equally. Such words imply many problems. To be specific, the amount of common property, kinds and amount of bank deposits, ways of division on furniture and domestic appliances, etc. are not clearly illustrated in the divorce agreement. In case one party hides common property on purpose, it is quite difficult to prosecute the party for his responsibility. Another example, some parties stipulate that in case one party is unfaithful to the other, the other party should possess all the common property. But what’s the definition of “unfaithful”? Such articles may be invalid owing to its unclear interpretation. Thus, the party with faults may escape from his or her due punishment.
2. Material evidence.
Material evidence boasts higher objectivity and authenticity, as it is not easy to be impacted by subjective factors and proceedings surroundings. However, in divorce cases, such material evidence is quite a few, and few parties are aware of its value to reserve at that time. So, common material evidence used in divorce cases is hair, photos and presents, etc.
3. Audio and visual materials.
From the point of evidence, audio and visual materials refer to pictures and sounds by means of sound recording, video, CD, film and computer materials to testify the fact. With the technological development and the party’s awareness of evidence collection, more and more audio and visual materials are used by the party involved, such as recording by means of mobiles, MP3 or recording pens. Such evidence features the following characters:
① Direct perceptibility. Video or sound recording normally contains the party or other witnesses’ evidence; especially the party’s self-narration may be regarded as confession in divorce cases. The party should have to give strong counterevidence to reverse such evidence. Hence, audio and visual materials are better kinds of evidence, as they can reflect the objective facts vividly and obviously.
②Uncertainty of the time when such evidence is collected. In divorce cases, similar evidence is obtained by secret means, so you may not get the key points of the party by listening to the sound recording for half an hour or even more time.
③A limited period of time for collecting such evidence. Generally, such evidence may only be collected during the divorce proceedings or before raising the request for divorce and undoubtedly, such evidence focuses on the other party’s faults. So, it is hard to obtain such evidence, if the party is on the alert.
4. The evidence of witness.
The evidence of witness refers to the witness’s statements to the court and the party, based on his or her own understanding about the fact. Evidence of the witness features the following characters.
①Privacy.
Privacy of the conjugal life restricts persons in the know, usually among relatives and friends. Due to intimacy with one party or both parties, their evidence often has a certain inclination. Although relevant regulations in 《Civil Procedure Act》stipulate that any insiders have the duty to tell the truth, such evidence has relatively low effect.
②Subjectivity.
Due to different living environment, every one may hold different moral ethics and different understanding about matrimonial or family disputes. In collecting witness’ evidence, it is better to avoid the witness’s subjective assumption or wordings with certain sentiment to keep the evidence objective and authentic. Of course, the witness’s appropriate personal opinions toward the marriage of the plaintiff and the defendant are advisable to add in the end of evidence notes.
③Not personal perception.
The exclusive character of conjugal life leads to the evidence of witness comes from the party’s statement. Statement itself is provided with strong sentiment, so to some extent, the authenticity is discounted. Such evidence is usually called “hearsay evidence”, which needs other complementary proof to testify its authenticity.
④Dependence.
As a matter of fact, it is quite difficult to collect evidence in matrimonial cases, especially that about marriage breakdown. Therefore, quite a few parties place their hope on the evidence in the court and some lawyers may suggest that the party involved submit “the bill of private prosecution” after or during the trial. However, in matrimonial cases, the party’s evidence lacks enough legal effect. Subject to 《The Supreme People’s Court’s Certain Provisions concerning Evidence of Civil Actions》, the party’s evidence cannot be regarded as legal ground to testify for the case alone but with other complementary proof.
5. The expert conclusions.
The expert conclusions refer to conclusions made through expertise and analysis by qualified experts concerning the evidence submitted by the party involved. In matrimonial cases, common expert conclusions are: the proof for wounds and disability, the proof for treatment, the proof for mental conditions, paternity test, Report on housing price evaluation. To be specific, the proof for wounds and disability and the proof for treatment are mainly used in cases concerning family violence, while paternity test is mainly applied for if one party has doubts on the kinship with the kid. At present, Shanghai Blood Center is responsible for paternity test in Shanghai, the expenses of which are 2000 Yuan to 3000 Yuan or so. Generally speaking, paternity test needs the court’s authorization, but now one party can commission the lawyer to apply for paternity test. The conclusion may arrive at in 2 weeks or so, and the rate of accuracy can reach up to 99.99%. In other words, the expert conclusion of paternity test belongs to the kinds of evidence highest adopted by the court.
Relevant case
Mr. Mao and Ms. Liu got married in 1999 in Shanghai. In 2001, Mao transferred to Germany for work and Liu intermittently went to Germany to visit her relatives during 2002 and 2003. But Liu brought a divorce case to the people’s court in XYZ District in Shanghai in December 2004, and their son in wedlock, Mao was in less than one year old. Mao returned in person for the divorce proceedings, as he had doubts whether Mao was his own son and he thought that Liu requested for divorce, as she was afraid of the exposure of illegitimate son. Therefore, Mao applied for the court’s paternity test, but the court maintained that paternity test must have the plaintiff’s consent and cooperation. In the end, Mao had no alternative but to turn to a blood center in Shanghai with the child less than one year old alone. After half of month, the report showed that Mao was Mao’s own son for 99.99%. In face of such fact, Mao strongly opposed to divorce in the court session. Finally, the court didn’t adjudicate divorce for first instance.
Part Ⅶ Is it illegal for one party to collect the evidence through filming or photographing the other party without informing him or her ?
Generally speaking, lots of people may consider the photos or the videos collected secretly to be improper for the usage of evidence 。 According to the reply by the Supreme Court published in 1995, the photos or the videos obtained secretly may not be acknowledged by the court, in other words, we can only use the photos or the videos as evidence when these materials are gained under the permission of the opposite party. In fact, nobody shall be willing to allow their opposite parties to take these evidences. However, according to the regulations concerning the evidences in civil procedures implemented by the Supreme Court on April 1st, 2002, the materials above may be acknowledged by the court although they are obtained without the permission of the opposite party.
In accordance with the Article 68 of the regulations concerning the evidences in civil procedures implemented by the Supreme Court, the evidences shall not be acknowledged by the court if they are gained through illegal process. For instance, the access to these evidences invades other parties’ legal rights or violates the laws. In this sense, whether the evidences are applicable to the court depends on whether the way to obtain them is lawful. Take collecting evidences concerning adultery for example, if one party breaks into a third party’s house to get the evidences above, these evidences will be illegal and shall not be applicable to the court while if the evidences collection is in his or her own house, they shall be acknowledged in the court. However, if one party injures the third party on purpose after the evidence collection, he or she may commit a crime. Collecting evidences by voice recording equipment in one’s own house shall be a lawful act while it shall be illegal in a third party’s offices. Anyway, as long as the way to obtain these materials is lawful, the photos and videos shall be acknowledged by the court as evidences.
Part Ⅷ Are short messages in the mobile phone valid in the lawsuits?
Evidence such as short messages is quite popular in divorce cases. For instance, such evidence will be used to testify that the other party has extramarital affairs or relations to property rights and so on. However, courts haven’t made a common consensus concerning the validity of short messages, and some courts in the hinterland don’t treat them as persuasive evidence in the judgment. With the popularity of mobile phones, the courts have to stipulate relevant laws and regulations and think over issues on how to put into practice for such evidence as short messages. Short messages are different from emails, as the former boasts authentic, objective, difficult to modify or attack and private features. What’s more, ordinary mobile phones have no function to modify the contents of short messages, the connection of which can mainly indicate in two aspects: i.e.: ①The short message sent via mobile phone has only one phone number, with the specific time, contents, or even the owner’s name, some of which can be investigated through phone numbers. ② Short messages are sent and received between two definite phone numbers. However, short messages adopted by the court as effective evidence should be legal, which means that the owner of the mobile must go through legal procedures of entering into the net and uses it legally.
First, don’t delete the short messages but keep them intact in the mobile.
Second, extract the words in written form and notarize them at the public notary office. Mostly, the court shall adopt such evidence that has been notarized.
Third, submit the notarized short messages to the court during the trial. Please note that information such as mobile model, brand, to testify that short messages in the mobile cannot be modified.
Electronic Signature Law of People’s Republic of China (hereinafter Electronic Signature Law) , effective on April.1.2005, stipulates that electronic signature in digital texts has legal validity. Article 2 puts that “digital texts refer to information made, sent, received or saved by means of electronic, optical, magnetic technology or so.”; Article 7 puts that “digital texts cannot be refused to be evidence because that the evidence is made, sent, received or saved by means of electronic, optical, magnetic technology or so; Article 5 puts that digital texts satisfying the following conditions should be regarded as legal scripts: 1) The extracted contents of the digital texts are expressive and can be investigated at any time; 2) The digital texts can be guaranteed that the contents are kept intact all the way. Endorsement, data exchanges, any change on the form of saving and displaying the digital texts shall not exert influence on the texts’ integration. Hence, Electronic Signature Law provides relevant legal ground for the use of short messages as legal evidence. We think such evidence may be more and more popularly used in judicial practice later.
In a tort dispute that happened in Beijing, the court made a direct recognition of the short messages, which maybe has some effect for your reference in divorce cases.
Relevant case
The court in Jiuxianqiao, Zhaoyang District, Beijing, just adjudicated a tort case concerning sexual harassment by means of short messages. The plaintiff Mrs. Min’s husband was an intimate with the defendant Mr. Qi, his colleague of the same company. On December.22.2003, Mrs. Min received Mr. Qi’s short message, inviting her to go shopping with him and his wife. After Mrs. Min arrived at his home, she found only Mr. Qi was in. After that, Mr. Qi frequently sent short messages to Mrs. Min, from apologies to salacious harassment. In the trial, the plaintiff showed 8 pieces of short messages with salacious and minacious contents, which were especially compiled against the plaintiff. The defendant Mr. Qi admitted that these 8 pieces of short messages were sent by him just out of jokes, as he thought she was as closed as his own sister-in-law. So, he didn’t agree to compensate but apologize, because his acts didn’t constitute an act of tort, though his wordings were too much immoderate.
The court thought that the defendant sent short messages with salacious and mendacious contents to the plaintiff against her free will, causing adverse sentiments in the plaintiff’s heart. The defendant harassed the plaintiff’s right to happily enjoy normal sexual life, so his acts had constituted a sexual harassment. Therefore, the court adjudicated that the defendant should stop such harassment, make apologies and pay the compensation for spiritual damage for 1000 Yuan to the plaintiff, as the defendant’s sexual harassment had to some extent hurt the plaintiff and her families.
Part Ⅸ Are e-mails valid in the lawsuits?
The use of emails as evidence is subject to the relevant regulations of Article 11 of Contract Law, and it was initially adopted by a court in Shanghai concerning e-commerce by 8848 in 2002. This is the first time the notarized emails have been treated as legal ground in a case.
Although any email address consists of the only user name, the only account name and the only code, any person with a certain registered user’s user name and code in hand, can send, receive or delete emails in this mailbox on any computer connected to the Internet at any time, therefore, the authenticity of emails often turns to be a controversy between both parties.
Generally speaking, the receiver cannot revise the contents of emails, which are read-only files. The emails with detailed information such as the email addresses of the sender and receiver, the specific time and so on, can be recognized as effective evidence with other complementary evidence.
In addition, I suggest the person involved notarizing the specific emails before submitting them as evidence to the court. The party should notarize the whole process from opening to printing the email contents and then submit the notarization to the court or hand in the soft disk saving the emails to court and then open the email in the presence of the judge and both parties, etc. At present, Shanghai No.1 Intermediate People’s Court and No.2 Intermediate People’s Court and the court in Pudong District have relevant experiences of adopting emails as effective evidence. What’s more, public security organs have mastered the expertise of identifying whether the original email has been revised.
Relevant case
Shanghai No.1 Intermediate People’s Court closed a case concerning e-commerce disputes recently, initially recognizing the legal validity of emails. From then on, digital evidence, followed by the 7 traditional forms of evidence, turns to be a new kind of effective evidence.
A Commercial & Trading Co. in Beijing set up an online shopping platform called “8848 website”. Customers can buy or sell via electronic orders or emails via this website. In August 2000, a certain Technology Development Co. in Shanghai reached a contract of ordering a variety of computer products worth of 700,000 Yuan by recharging to the online stored value account of “8848 website” to replace loans via emails. However, the Technology Development Co. didn’t pay off according to the contract after receiving the computer products, so the lawsuit was ignited between two companies from then on.
The court for first instance adjudicated that the Technology Development Co. in Shanghai should pay off 700,000 Yuan for loans to The Commercial & Trading Co. in Beijing. But The Technology Development Co. lodged an appeal that in their contract, both parties agreed to recharge 140,000 Yuan to the Commercial & Trading Company’s online stored value account to replace the loans. The company submitted relevant electronic orders, emails extracted from the Internet under the supervision of the public notary office.
The court for second instance held the opinion that emails provided by the Technology Development Co. authentically and objectively indicate the agreement concerning settlement of accounts. Pursuant to 《Contract Law》, email is one of legal forms of contract in China, as the contract transmitted to the other party via email cannot be revised. In the end, the No.1 Intermediate People’s Court amended the judgment that the Technology Development Co. should make 550,000-Yuan payment of goods to the plaintiff.
The judge’s analysis:
The legal validity of emails testifying the fact of trading relations between both parties is indisputable, so whether the process of extracting emails from the computer is just, objective and legal are the key points. In the above-mentioned case, the emails as the evidence are extracted under the supervision of the public notary office, so they are authentic, objective and legal.
Part Ⅹ Are faxes valid in he lawsuits?
Although more and more people question the legal validity of faxes, for faxes have two scripts, with the sender and receiver each having one script at the same time. The specific time of a certain fax can be easily checked at the Telecom Department. So, both parties have the right to submit two scripts to the court, and any modification can be clear and definite at a glance. In case the fax contents are in relatively clear handwriting, generally any modification can be recognized. But as for blurred handwriting or basically printed characters, it may be more difficult to identify.
Some scholars point out that the fax document is not the original script, so the legal effect of the fax document should be considered in the following aspects: 1) First, verify authenticity of the fax document based on the facts like the fax No., the specific time, and the registering No. with the original script. In case the fax document is regarded as one of the legal ground for fulfilling the contract, in case any temporary modification occurs, the original script should be placed on file and the relevant information about the fax should be registered at the same time. Otherwise, any modification is executed based on the fax document without verification from the receiver afterwards or doesn’t comply with the above-mentioned situations, thus the fax document should not be recognized as legally effective. Second, in face of unexpected urgency, the change should be instantly handled by fax, in order to keep the evidence intact, the fax sender has the duty to send the original script to the receiver at the same time and the receiver has the responsibility or duty to remind the fax sender of his due duty in the process of verification or execution. Third, in case both parties communicate about issues regarding signing or amending the contract via a series of faxes, including other written evidence to testify their continuity, especially when faxes between both parties are closely interlinked, the legal effect of faxes shall be recognized. Fourth, please note that the fax document that can be adopted as effective evidence must be submitted with other direct or indirect auxiliary evidence. As for evidence insurance, especially for contracts, any party who neglect the importance of keeping evidence intact should bear the responsibility of the failure in the lawsuit.
Relevant case
Mr. Chen and Ms. Hu got married in 2000 and have no child after marriage. On September.13.2004, they went through the procedures of divorce registration. Both parties have reached the following consensus in their divorce agreement:
1) Both parties get divorced by mutual consent.
2) Without issue after marriage.
3) The premises located at Lane XYZ, Fushan Rd, in Shanghai purchased by both parties after marriage, are possessed by the female party and the male party releases the claim to the property right.
4) Within 10 days after divorce, Chen shall pay off 50,000 Yuan to Hu as the economic aids.
On April.11.2004, the plaintiff Hu brought a divorce case to the people’s court in XYZ District in Shanghai, requesting Chen to pay off 50,000 Yuan as the economic aids.
The plaintiff Hu argued that both parties registered for divorce on September.13.2004. Based on the divorce agreement, the defendant should have paid off 50,000 Yuan to the plaintiff as the economic aids, but up to now he didn’t fulfill his responsibility. So, the plaintiff took the legal action.
For this reason, the defendant Chen afforded a fax document to the court, the main contents of which are listed as follows:
In case Chen can cooperate Hu with the transfer procedures of the property right, Hu will release her claim for another 50,000 Yuan.
The plaintiff Hu admitted she faxed to Chen at that time, but she held an objection to the fax contents, as she thought the defendant had revised the fax contents. So, she submitted the original script to the court:
In case Chen can cooperate Hu with the transfer procedures of the property right, Hu will release her claim for another 50,000 Yuan, but Chen must go through relevant procedures before October.15.2004, otherwise the request become invalid.
The plaintiff Hu maintained that Chen might copy the fax contents with the copy machine again with the same pattern and the same tissue of fax paper in order to delete the final sentence.
The key point of this case is the authenticity of the original fax script. The judge had requested the plaintiff Hufang to apply for identification of the fax document and the original fax script, but the lawyer of the plaintiff refused the judge’s suggestion, for the reason that the plaintiff should not bear the responsibility for evidence collection. Finally, the defendant accepted the judge’s suggestion of applying for identification. The case is in the course of trial now.
Part Ⅺ Are the evidences collected by the private eye valid in the court?
It is obviously impossible for the party to collect evidence in person concerning faults or property conditions of the other party, because even if the party has sufficient time and energy or specific experience in evidence collection, it is unrealistic for the party to do so in a misery and furious mood. So do relatives of the party. Besides, lawyers themselves are not sure to be experts on evidence collection but on laws and regulations, some of whom maybe even don’t know the basic skills for such investigation. Under such circumstance, “private detective” comes with the tide of fashion.
Although at present the legal validity of evidence collected by private detectives is questioned by people in different circles, the market has a huge demand. No matter what kind of titles the similar institutes hold, a consulting company or an investigation firm, they provide such services as tracking, shooting or recording clues to the party’s faults or the property conditions.
Since the party involved holds the right to afford evidence for the statement he or she argues, including commissioning agents to investigate evidence, any relevant evidence should be regarded as effective as long as it is obtained via legal means and equipment. The judge will give final recognition of effect upon evidence, so it is kind of necessary for some parties involved to hire private detectives to investigate evidence for their maximum benefits at present.
Part Ⅻ What the common methods for a private eye to collect evidences?
（1）Tracking.
Under the commission, the private detective may track the target in order to learn about the party’s regular life patterns from his or her work and life, which should not be regarded as illegal conducts. Normally, for the purpose of collecting evidence of the party’s faults, the process of tracking consists of three parts.
① Targeting the target. The target’s photos, videos or other materials should be provided to private detectives.
② Tracking the target. Generally, the period of tracking lasts for 2 weeks, focusing on the target’s living and working situations, because one or two days are hard to learn about one’s regular life pattern or find out something unusual.
③ Concluding. The agent may analyze the places and persons the target often visits and draws a conclusion in the form of reports to the client with relevant evidence after the period.
（2）Shooting.
Private detectives may shoot the suspected persons who may have ambiguous relations or intimate actions with the target or the situations where the target may cohabit or date with the other opposite sex with a multi-focus camera or common camera.
（3）Recording.
As for sound recordings on a medium of tape, they are not easy to modify. Therefore, as long as sound recordings are obtained via legal means and equipment, the legal effect may be of a relatively high grade, however, sound materials recorded by means of digital equipment such as MP3, recording pens, may be difficult to be trusted by the judge, because such recording materials are more likely to be copied or edited and the other party is easy to deny. Anyway, little is better than none. If the sound recordings with certain connection to the case are collected by means of common recording equipment instead of restricted ones (like a spy camera) and in appropriate venues, like public places instead of private places, such evidence has legal validity.
Part ⅩⅢ In what conditions should we hire some person to collect evidences for us?
As for ordinary divorce cases without a great deal of controversial property or the party involved just has average economic conditions, we won’t suggest the party commissioning private detectives for investigation, as it takes more time and more workload or even with certain risks. In addition, expenses for such commission may be relatively high, especially when equipment worth of great value (like several automobiles) is used for investigation. In other words, if both parties possess a great deal of common property, the evidence concerning the other party’s faults may be of great importance, so it is relatively worthwhile to commission such agents for investigation. In my personal opinion, it is unnecessary to hire a private detective for investigating evidence concerning extramarital affairs and property in ordinary divorce cases.
Part ⅩⅣ Does the evidence of extramarital affairs play an important role in the divorce lawsuits?
“Extramarital affairs” have turned to be the biggest killer for today’s couples. Statistics from such cases we dealt with in 2004 show that “the third party’s intervention” amounts for more than 60% of the total divorce cases. Extramarital affairs or extramarital sexual behaviors are the ultimate reason for not continuing holding together. One party’s extramarital sexual behaviors will deeply hurt the other party emotionally, even may lead to suicide.
If one party’s extramarital affairs lead to divorce in the end, the other party is sure to try every means to collect relevant evidence of the party’s faults, for the purpose to obtain psychological consolation and the maximum benefits on common property division, even just out of kind of psychical balance. Therefore, in many big cities like Beijing, Shanghai, Guangzhou, Shenzhen, a variety of detective agencies mushroom around our life. Some parties involved may do everything possible to collect evidence concerning the other party’s extramarital affairs regardless of means and costs. But what kind of role can such evidence obtained with difficulties play in divorce case?
Pursuant to the current laws and regulations, including trial experiences, the judge is not bound to support the request for compensation for spiritual damage, even if the party involved has grasped direct evidence concerning the other party’s extramarital affairs.
In accordance with Article 46 of Marriage Law of the P.R.C the party without any faults has the right to request for compensation for spiritual damage under the following circumstances in divorce cases:
① Committing bigamy.
② Cohabiting with the other people in the married status.
③ Conducting family violence.
④ Abusing or deserting family members.
Subject to the current laws, the judge may stand for the request for compensation for spiritual damage by the party without any faults, but there is slim chance only based on the fact of extramarital sexual behaviors. Pursuant to Item 2, Article 23 of The Supreme People’s Court’s Provisional Regulations concerning Implementation of Marriage Law of P.R.C in civil trials, the people’s court shall not stand for the request for compensation by the party without any faults, in the event that the other party’s faults do not conform to the four situations in line with Article 46 of 《Marriage Law》through the court investigation. “The divorce case of Zhangjianfeng and Zhudeyang” judged by the people’s court in Huangpu District, completely followed out the Supreme People’s Court’s judicial spirit. In the case, the judge rejected the defendant’ request for compensation for spiritual damage owing to the plaintiff’s extramarital sexual behaviors, which was published in the Select case-book in courts of Shanghai as an example.
Why did the court in Huangpu District reject the request for compensation in that one party committed extramarital sexual behaviors or failed to fulfill the faithful commitment? Based on the legal framework in Mainland China, the judge should adjudicate the case subject to the relevant laws and regulations rather than “the principles of good faith” or the judge’s own judgment and conscience in the trial. Only four situations listed in Article 46 of Marriage Law, of the P.R.C excluding any bottom line articles, shall be applicable to the compensation for spiritual damage. Hence, the request for compensation for spiritual damage may be hard to obtain the judge’s support, even with the evidence concerning extramarital sexual behaviors.
In fact, the evidence concerning extramarital sexual behaviors cannot testify the party’s cohabitation with the third party, as “cohabitation” and “adultery” are not the same legal concepts. To be specific, cohabitation refers to a continuous and stable common life during a period of time, especially more than three months between two parties, while adultery may happen within an hour. In other words, cohabitation and adultery are widely divergent in the aspects of time, means or manner. However, in most people’s eyes, the birth of illegitimate child implies the cohabitation with the third party. This is a kind of misunderstanding, as pregnancy may be caused by “n” times of sexual behaviors or only once with the third party. So, such evidence cannot testify the fact of cohabitation, which does not essentially link up with the compensation for spiritual damage.
Part ⅩⅤ Is it necessary for one party to collect the evidence concerning the other party’s extramarital affairs?
Although such evidence is not sure to be helpful to obtain compensation for spiritual damage, it can testify the party’s improper sexual behaviors with others, the benefits of which are listed as follows:
First, pursuant to regulations in The Supreme People’s Court’s Detailed Interpretation of Issues concerning Division of Common Property in Divorce Cases , the judge shall adjudicate the case in the spirit of caring for the party without any faults in the division of common property, though such care basically reflects in quantity other than quality. Therefore, more evidence is better than none if the costs for evidence collection are not quite high.
Second, with a view to tactics in the divorce proceedings, evidence concerning extramarital affairs may be helpful for the party without any faults to win the initiative or to force the other party to make more compromise in the division of common property during the mediation and the trial, making the party without any faults obtain kind of comfort from the quantity of property.
Part ⅩⅥ If one party wants to collect the evidence of the other party’s extramarital affairs, need he or she to hire a professional investigation company?
It is a better choice to commission a private detective or a lawyer for such evidence collection, if the amount of common property is quite huge or the party involved is hard or inconvenient to collect such evidence in person, because to the party involved with the family possessions of more than million, “five-to-five” or “four-to-six” division has at least 200,000 Yuan’s gap.
Another reason for hiring a private detective is to seek for psychical balance. Some parties involved don’t take the material care to heart but a kind of psychical balance. They may try every means to testify the spouse’s faults in order to seek for own psychical comfort. If economic conditions permit, such motivation is reasonable.
Part ⅩⅦ Which kinds of evidences concerning adultery are valid in the court?
(1) Photos concerning the extramarital sexual behavior taken in one’s own house.
Photos concerning the extramarital sexual behavior on the bed of the party’s own home are legal and effective, especially taken when breaking into the house.
As for the divorce proceedings between Luoling and Mr. Wu, Wuxiaofang, the judge of the Supreme People’s Court makes such analysis: Luoling’s act of breaking into the her own house to take the photos concerning her husband’s extramarital sexual behavior with Ms. Sun is legal, in case such evidence is only submitted to the court or the concerning departments in the divorce proceedings, for the purpose of testifying her husband’s faults and protecting her own legal benefits. Under such circumstance, Ms. Sun’s other rights and interests, such as the right of fame, can be discussed later.
Qilihua, the president of civil court of the No. 2 Intermediate Court in Beijing holds such opinions: The people’s legal rights shall be protected by laws, regardless of gender or position, with no exception to the third party. As for Luoling’s act of taking such photos, in case Ms. Sun sues Luoling for infringe on her legal rights, such as the right of fame, shall not be supported by the court, as her right of fame has been ruined by herself. Although Luoling’s act may be a bit impetuous, as long as she doesn’t intent to insult Ms. Sun subjectively or to publicize the affair on purpose, from the angle of the law, such act doesn’t constitute a tort on personal rights and interests.
Therefore, such evidence concerning extramarital affairs as photos, taken at the party’s own home without impetuous behaviors, is more likely to be adopted by the court, in case the evidence is only used for the trial other than to insult the third party.
In 2001, the people’s court of Nanhui District in Shanghai put a similar case on trial.
Owing to emotional disharmony, Mr. Chen sued his wife, Mrs. Cheng for divorce. During the trial, Mrs. Cheng learnt that her husband lived with the victim, Mrs. Zhang at the rented house in County Hangtou of Nanhui District, so she, with her relatives, three males and three females, broke into the third party’s house for the evidence concerning extramarital affairs. Mrs. Cheng shot photos of Mr. Chen sleeping with Mrs. Zhang, slapped and forced her to sleep in bed. Meanwhile, Mr. Wang and Mrs. Cheng’s relative tried to take off Mrs. Zhang’s underpants as a kind of revenge. In the process of quarrels with Mrs. Cheng and Mr. Wang, Mrs. Zhang’s bottom revealed, so Mrs. Zhang sued Mrs. Cheng and Mr. Wang for apology and compensation for spiritual damage of 50,000 Yuan for their insults.
The court made such adjudication: As every citizen enjoys the right of fame, which should be protected by the law. Mrs. Cheng’s intent to collect evidence concerning her husband’s extramarital affairs is reasonable, but her act should be in line with the relevant laws and regulations. Therefore, Mrs. Cheng and Mr. Wang’s acts of breaking into the house rented by Mrs. Zhang have violated Mrs. Zhang’s right of human dignity, which fits in with the spiritual damage, so they have to bear the civil liability. The reasons are that “evidence collection” should feature three characters, i.e.: objective, integrated and legal, including means of collecting evidence, otherwise, even if the evidence reflects the fact, it may not be adopted by the court.
(2) Photos concerning the extramarital sexual behavior on the third party’s bed remain uncertain in terms of legal validity.
Because such photos taken in the third party’s home or a hotel may not be adopted by the court, as the third party may reflect upon the tort lawsuit.
(3)The legal validity of evidence collected in public places like a park.
Nowadays more and more people may embrace, lead by hand or kiss in public, though only a small part of persons may have a sexual behavior outdoors or in the park. In case such behavior occurs in public, privacy in a narrow sense loses, as the doer gives up the right of privacy, so such evidence is more likely to be adopted by the court.
Part ⅩⅧ If one party has signed a contract with the other party concerning property division because his or her adultery fault, will this contract be valid in court?
In face of the fact of extramarital affair, the party without any faults may often force the party with faults to write down the letter of guilt or something similar and sign on the scheme for property division prepared beforehand. As for the effect of such agreements, the court is less likely to adopt them, as they are not signed in the principle of equity and free will.
Relevant cases:
In October 2000, in the city of Beihai, Mr. Yuan was caught of having extramarital sexual behavior at home by his wife. In order to gloss things over, Mr. Yuan was forced to sign an agreement concerning division of family property, in which Mr. Yuan promised to release the claim to the property.
In October this year, Mr. Yuan brought a divorce case to court for their marriage has broken down, requesting to have the child-care right of his son and to divide the common property equally. In the meantime, his wife submitted the agreement of property division written by her husband that year in the hope that she is provided with the total property and the child-care right.
The people’s court in the city of Beihai, adjudicated that the agreement of property division signed by Mr. Yuan in an embarrassed occasion, had no legal effect, so the court shall not stand for the defendant’s request.
Compared with laws in some European and American countries, due to different legal framework, legal awareness and national conditions in China, different countries may hold different opinions, as for the party’s legal liability for committing adultery.
For instance, as for evidence concerning “improper relationship”, courts in China may recognize the fact of extramarital sexual behavior based on direct and obvious evidence, while in some states in U.S.A, both sexes stay at hotel together for some time, such as several hours, the judge may adjudicate they have improper relation.
In addition, as for the liability for adultery, pursuant to laws in Mainland China, the party without any faults may only obtain more care, while in some countries such as U.S.A, Singapore, Japan and H.K. China, the party without any faults can ask the other party for compensation, even in some other countries, the party may be charged with criminal responsibility.
Part ⅩⅨ Is the existence of a bastard able to support one party’s cohabitation with any third party?
In common views, if their spouses have bastards, there’s cohabitation between their spouses with third parties. However, this proves to be a mistaken concept. The existence of a bastard shall not support the relationship of cohabitation necessarily. The existence of a bastard may be the result of just once or several times of extramarital sexual behavior. In this sense, the existence of a bastard may not be able to support one party’s cohabitation with a third party and the opposite party may not get the compensation for sure accordingly. |
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