Damages Claims for Divorce Cases
Prior to the filing of a case, a lawyer may inform the client of the options for claiming damages if the client fails to claim damages in the situations where the client is qualified for such damages, the situation includes scenarios under article 46 of China marriage law and other scenarios where the client could ask for more shares of property or life difficulties assistance. The lawyer may consult with the client about where such request shall be initiated.
In the case of the following circumstances, the aggrieved party may claim compensation for damages for divorce:
(1) The counterparty has a serious wrongdoing as stipulated in Article 46 of China Marriage Law;
(2) There is no fault of the party claiming for damages;
(3) The divorce results from the fault of the other party;
Compensation for damages for divorce, including compensation for physical damage and compensation for mental distress damage. The responsible party shall be the party at fault. The related provisions are as below:
(1) The non-fault party meeting the requirements of the provisions of Article 46 of the Marriage Law as the plaintiff's requesting for damages to the people's court based on the provisions of the article shall file for damages concurrently with the divorce complaint;
(2) If the plaintiff fails to claim damages together with the complaint or if the defendant disagrees with the divorce and there are no grounds for divorce, the aggrieved party may file for such damages in a separately proceeding within one year.
(3) If the aggrieved party is the defendant in the legal proceeding and he or she fails to claim damages in the first instance but claims damages in the appellate proceeding, the people’s court will mediate for such part claimed. If the mediation does not work, the court will inform the aggrieved party to initiate a separate proceeding regarding the damage claiming part within one year.
(4) The client should be advised of the judicial practice of compensation for damages based on the provisions of Article 46 of the Marriage Law. The lawyer shall review damages related evidences and wrongfulness related evidence collected by the client against the other party strictly and prudently.
needs to guide them on the investigation direction and purpose.
