Viewpoint | Determination of evidence of domestic violence in divorce proceedings
Published:
2022-04-01
Basic case In September 2012, Hu and Chen confirmed their love relationship. The two registered their marriage on May 20, 2013 and had a daughter after marriage. After being dismissed by the unit in 2015, Chen became more and more irritable. He often fought against Hu because of family chores, and he would be driven out of the house every time he finished playing Hu. During the Spring Festival in 2017, after being drunk, Chen threw a knife at Hu because he was dissatisfied with Hu's failure to clean up the housework in time. Chen's behavior made Hu completely disheartened, and he took his daughter back that night. At his parents' home, Hu sued the court for divorce. After receiving the summons from the court, Chen immediately rushed to Hu's parents' house to squat. As soon as he saw Hu, he smashed his head with a blunt object. Hu called the police and made an injury appraisal. The court of first instance determined that Chen's behavior constituted domestic violence based on the evidence in the case, and the relationship between the two parties had indeed broken down, and the judgment allowed both parties to divorce. Chen refused to appeal, the court of second instance rejected the appeal and upheld the original verdict. Legal provisions Article 1079, paragraphs 2 and 3, of the the People's Republic of China Civil Code on Marriage and Family stipulates: "Divorce shall be granted if the relationship has indeed broken down and mediation is invalid. Divorce shall be granted if mediation is invalid under any of the following circumstances: (2) Domestic violence or maltreatment or abandonment of family members;" Lawyer Analysis Numerous cases show that there is only a difference between zero and numerous domestic violence. After being abused for the first time, the parties often do not realize the seriousness of the problem, and may even be moved by the perpetrator's subsequent repentance and compensation behavior, and then connive at their next violence. It can be seen that tolerance is a double-edged sword, and the compromise of the parties to domestic violence may bring irreparable harm to themselves. Therefore, the lawyer advises the client to collect and retain evidence in time to prove the existence of domestic violence after suffering domestic violence, because the implementation of domestic violence is one of the legal reasons for divorce. In the case of invalid mediation, even if it is the first time to sue for divorce, the court should also grant divorce. However, if the evidence of the parties is insufficient to determine the fact of domestic violence, in the trial practice, for the first time to sue for divorce, and there is no sufficient evidence to prove that the relationship between the two parties has indeed broken down, the people's court will often stand in the maintenance of marriage and family From the perspective of stability, the general judgment does not divorce. The ways for the parties to collect evidence can be divided into the following: 1. After suffering from domestic violence, they should directly report to the public security organ or seek help from the neighborhood (village) committee, government agencies, women's federations, work units, etc. In the future litigation, the parties may request the relevant departments to issue relevant certification materials, especially to apply for the police record, warning letter and introduction letter of injury examination of the public security organ. 2, keep the diagnosis certificate, case book, medical expenses bills, etc. The parties injured in domestic violence should go to the hospital in time. In addition, they should take photos at that time and keep the photos. The parties may also go to the appraisal center or entrust the Women's Federation to handle the injury appraisal work. 3. Keep the original audio-visual materials and repentance written after domestic violence. If conditions permit, the party concerned can make audio or video recording when suffering from domestic violence. If there is an eyewitness, he can apply for the witness to testify in court. At the same time, he should pay attention to keeping the letter of repentance written by the perpetrator after domestic violence. The evidence collected in the first way, especially the police records, warning letters and injury appraisal opinions of the public security organs, is the most powerful to identify the existence of domestic violence. If the party only submits medical records or photos of injuries, if there is no other evidence to strengthen them, it is difficult to determine that the injury is caused by spousal violence if the other party denies it.
Basic case
In September 2012, Hu and Chen confirmed their love relationship. The two registered their marriage on May 20, 2013 and had a daughter after marriage. After being dismissed by the unit in 2015, Chen became more and more irritable. He often fought against Hu because of family chores, and he would be driven out of the house every time he finished playing Hu. During the Spring Festival in 2017, after being drunk, Chen threw a knife at Hu because he was dissatisfied with Hu's failure to clean up the housework in time. Chen's behavior made Hu completely disheartened, and he took his daughter back that night. At his parents' home, Hu sued the court for divorce. After receiving the summons from the court, Chen immediately rushed to Hu's parents' house to squat. As soon as he saw Hu, he smashed his head with a blunt object. Hu called the police and made an injury appraisal. The court of first instance determined that Chen's behavior constituted domestic violence based on the evidence in the case, and the relationship between the two parties had indeed broken down, and the judgment allowed both parties to divorce. Chen refused to appeal, the court of second instance rejected the appeal and upheld the original verdict.
Legal provisions
Article 1079, paragraphs 2 and 3, of the the People's Republic of China Civil Code on Marriage and Family stipulates: "Divorce shall be granted if the relationship has indeed broken down and mediation is invalid. Divorce shall be granted if mediation is invalid under any of the following circumstances: (2) Domestic violence or maltreatment or abandonment of family members;"
Lawyer Analysis
Numerous cases show that there is only a difference between zero and numerous domestic violence. After being abused for the first time, the parties often do not realize the seriousness of the problem, and may even be moved by the perpetrator's subsequent repentance and compensation behavior, and then connive at their next violence. It can be seen that tolerance is a double-edged sword, and the compromise of the parties to domestic violence may bring irreparable harm to themselves.
Therefore, the lawyer advises the client to collect and retain evidence in time to prove the existence of domestic violence after suffering domestic violence, because the implementation of domestic violence is one of the legal reasons for divorce. In the case of invalid mediation, even if it is the first time to sue for divorce, the court should also grant divorce. However, if the evidence of the parties is insufficient to determine the fact of domestic violence, in the trial practice, for the first time to sue for divorce, and there is no sufficient evidence to prove that the relationship between the two parties has indeed broken down, the people's court will often stand in the maintenance of marriage and family From the perspective of stability, the general judgment does not divorce.
The ways for the parties to collect evidence can be divided into the following: 1. After suffering from domestic violence, they should directly report to the public security organ or seek help from the neighborhood (village) committee, government agencies, women's federations, work units, etc. In the future litigation, the parties may request the relevant departments to issue relevant certification materials, especially to apply for the police record, warning letter and introduction letter of injury examination of the public security organ. 2, keep the diagnosis certificate, case book, medical expenses bills, etc. The parties injured in domestic violence should go to the hospital in time. In addition, they should take photos at that time and keep the photos. The parties may also go to the appraisal center or entrust the Women's Federation to handle the injury appraisal work. 3. Keep the original audio-visual materials and repentance written after domestic violence. If conditions permit, the party concerned can make audio or video recording when suffering from domestic violence. If there is an eyewitness, he can apply for the witness to testify in court. At the same time, he should pay attention to keeping the letter of repentance written by the perpetrator after domestic violence.
The evidence collected in the first way, especially the police records, warning letters and injury appraisal opinions of the public security organs, is the most powerful to identify the existence of domestic violence. If the party only submits medical records or photos of injuries, if there is no other evidence to strengthen them, it is difficult to determine that the injury is caused by spousal violence if the other party denies it.
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