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Viewpoint | Determination of Evidence of Domestic Violence in Divorce Proceedings

Viewpoint | Determination of Evidence of Domestic Violence in Divorce Proceedings

(Summary description)In September 2012, Hu and Chen established a romantic relationship. The two registered their marriage on May 20, 2013, and they had a daughter after marriage. In 2015, Chen became more and more irritable after being dismissed by the unit. He often beat Hu with family chores, and every time he beat Hu, he would be kicked out of the house.

Viewpoint | Determination of Evidence of Domestic Violence in Divorce Proceedings

(Summary description)In September 2012, Hu and Chen established a romantic relationship. The two registered their marriage on May 20, 2013, and they had a daughter after marriage. In 2015, Chen became more and more irritable after being dismissed by the unit. He often beat Hu with family chores, and every time he beat Hu, he would be kicked out of the house.

Information

Basic Facts    

 

In September 2012, Hu and Chen established a romantic relationship. The two registered their marriage on May 20, 2013, and they had a daughter after marriage. In 2015, Chen became more and more irritable after being dismissed by the unit. He often beat Hu with family chores, and every time he beat Hu, he would be kicked out of the house. During the 2017 Spring Festival, Chen threw a knife at Hu after being drunk because he was dissatisfied with Hu's failure to clean up the housework in time. Chen's behavior made Hu completely disheartened, and he returned with his daughter that night. His parents' home, and then Hu sued the court for divorce. After Chen received the summons from the court, he immediately rushed to Hu's parents' house to stand guard. 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 found 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 granted the two parties a divorce. Chen refused to accept and appealed, and the court of second instance dismissed the appeal and upheld the original judgment.

 

Law

 

The second and third paragraphs of Article 1079 of the Civil Code of the People's Republic of China stipulates: "If the relationship has indeed broken down and the mediation is invalid, the divorce shall be granted. In one of the following circumstances, if mediation is invalid, divorce shall be granted: (2) committing domestic violence or abusing or abandoning family members; ”

 

Lawyer Analysis

 

Numerous cases show that domestic violence is the difference between zero and countless. The victim often does not realize the seriousness of the problem after being abused for the first time, and is even moved by the abuser's remorse and compensation behavior afterwards, and then condones his next abuse. It can be seen that tolerance is a double-edged sword, and the client's compromise to domestic violence may cause irreparable harm to himself.

 

Therefore, lawyers suggest that clients should collect and retain evidence in a timely manner after suffering domestic violence to prove the existence of domestic violence, because domestic violence is one of the statutory reasons for judging divorce. , the court should also grant divorce. However, if the evidence of the parties is insufficient, so that the fact of domestic violence cannot be determined, in the trial practice, for the first filing 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 defense of marriage and family. From a stable point of view, the general judgment does not grant a divorce.

 

The ways for the parties to collect evidence can be divided into the following: 1. After experiencing domestic violence, they should report to the police directly or seek help from the neighborhood (village) committee, government agency, women's federation, work unit, etc. in a timely manner. In future lawsuits, the parties may request relevant departments to issue relevant certification materials, especially the application for the police record, warning letter, and injury inspection introduction letter of the public security organ. 2. Keep the diagnosis certificate, case book, medical bills, etc. The parties injured in domestic violence should go to the hospital for treatment in time, and they should also take pictures at that time and keep the pictures well. The parties can also go to the appraisal center by themselves or entrust the Women's Federation to handle the injury appraisal work. 3. Retain the original audio-visual materials during domestic violence and the repentance letter written after domestic violence. If conditions permit, the parties may make audio or video recordings when they are subjected to domestic violence. If there are witnesses, they can apply for witnesses to testify in court. At the same time, pay attention to keeping the repentance letter written by the perpetrator after the domestic violence.

 

The evidence collected in the first way, especially the police records, warning letters, and injury appraisal opinions of the public security organs, are the most powerful in determining the existence of domestic violence. If the parties only submit medical records or photos of scars, if there is no other evidence to reinforce it, it is difficult to determine that the injury is caused by spousal violence even if the other party denies it.

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