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In what cases is the innocent party entitled to claim for damages according to the Marriage Law?

  • Time:2020-07-16
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According to Article 46 of the Marriage Law, the innocent party may file a claim for damages in case of divorce due to the other party's: (1) bigamy; (2) cohabitation with any third party; (3) domestic violence; or (4) maltreatment or abandonment of any family member.

In combination with the Supreme People's Court's judicial interpretations of the Marriage Law, attention should be paid to the following points in respect of the system of damages by the party at fault in divorce under the Marriage Law: (1) The liability for damages is the burden of the spouse at fault in the divorce proceedings, excluding any third party who causes damages to the marriage relationship. (2) The liability for damages is subject to the termination of the marriage relationship. During the existence of the marriage relationship, neither spouse may file a claim for damages against the other party at fault according to Article 46 of the Marriage Law without claiming for divorce. And the innocent party is not entitled to damages from the party at fault in a case where divorce is not granted by the people's court. (3) Damages include both damages for economic loss and damages for mental distress. (4) The innocent party has the right to claim for damages, whether in case of divorce by legal proceedings or by agreement. When accepting a divorce case, the people's court shall inform the parties in writing of their rights and obligations under the Marriage Law, such as the right of claim for damages, etc. If the innocent party claims for damages in divorce proceedings in which he/she is the plaintiff, he/she shall contain the claim for damages in the petition for divorce. If the innocent party neither agrees to the divorce nor files a claim for damages according to the provision above in divorce proceedings in which he/she is the defendant, he/she may file a claim for damages in a separate lawsuit within one year after the divorce. If the innocent party is the defendant and does not file a claim for damages in the first instance of the divorce proceedings but does so in the second instance, the people's court shall launch the mediation proceedings, and shall inform the defendant to claim for damages in a separate suit within one year after the divorce, if mediation fails. After the divorce registration procedure is completed at the marriage registration authority, either of the parties shall have the right to file a claim for damages with the people's court. However, the people's court will not support the claim if the claimant expressly waived the right to claim for damages under the divorce agreement or filed it one year after the divorce registration procedure is completed.

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