Can I claim damages if I find out that my ex-husband cheated in marriage after divorce?

In marriage, husband and wife should be loyal and love each other. However, some people can’t resist the temptation and choose to leave after doing immoral things. In a broken marriage, can the cheater really get away with it? How should the innocent party protect its legitimate rights and interests?
Case review
Ex-husband cheated in marriage. Ex-wife asked for compensation
In July 2019, Xiao Zhang and Xiao Li divorced due to emotional breakdown agreement. In August 2019, Xiao Zhang remarried with others. After the divorce, Xiaoli and Xiao Zhang’s parents live in the same community. On this day, Xiaoli accidentally discovered that a child seat was added to Xiao Zhang’s parents’ bicycle, which made her feel puzzled. Later, she found that Xiao Zhang and his current wife had a son in March 2020, and it was still the marriage duration of Xiao Zhang and Xiao Li. Xiao Li felt that this had a great impact on her psychology. In February 2022, Xiao Li was diagnosed as anxiety and depression by the hospital. Therefore, Xiaoli sued Xiao Zhang to the court. Xiaoli believed that Xiao Zhang violated the duty of loyalty, cohabited with others and had children during the marriage relationship, which seriously damaged his legitimate rights and interests and caused great mental damage. Therefore, he asked Xiao Zhang to pay himself compensation of 100,000 yuan for mental damage.
Regarding his ex-wife’s claim, Xiao Zhang argued that on the one hand, as far as the facts are concerned, the two divorced because of their incompatible personalities and could not continue to live together. During the marriage, they either rented a house outside or went back to their parents’ house, and there was no cohabitation with others. At the same time, Xiao Zhang thinks that the conditions of Xiaoli’s divorce agreement are very harsh, and he also accepts and basically fulfills them. On the other hand, Xiao Zhang thinks that Xiaoli didn’t file damages until more than two years after the divorce, so the law at that time, namely the provisions of Judicial Interpretation II of Marriage Law, should be applied. scheduled period, who filed a lawsuit more than one year after two years, should not pay compensation herself. The two argued endlessly about this.
Court hearing
Evidence of infidelity is conclusive. Ex-husband pays 100 thousand
The second paragraph of Article 1043 of the Civil Code stipulates that husband and wife should be faithful to each other, respect each other and care for each other; Family members should respect the old and love the young, help each other and maintain equal, harmonious and civilized marriage and family relations.
Article 1091 of the Civil Code stipulates that if one of the following circumstances leads to divorce, the innocent party has the right to claim damages: (1) bigamy; (2) Living with others; (3) committing domestic violence; (4) maltreating or abandoning family members; (five) there are other major faults.
The court found through trial that Xiao Zhang and Xiao Li agreed to divorce on July 25, 2019, and their daughters were raised by Xiao Li. Xiao Zhang paid her daughter’s living expenses of 6,000 yuan per month after the divorce, and the tuition, medical expenses and insurance fees were paid separately. On August 7, 2019, Xiao Zhang registered marriage with others. After the marriage, the two parties had a son Xiaoming on March 5, 2020. According to the first registration form of the Birth Medical Certificate issued by a hospital in Beijing, Xiaoming was born on March 5, 2020, and his gestational age was 40 weeks and 1 day. In addition, on February 14, 2022, according to the court’s investigation order, Xiaoli entrusted a lawyer to the police station to issue a certificate letter, which proved that Xiao Ming was the son of Xiao Zhang and the date of birth was March 5, 2020. In addition, on February 9, 2022, Xiaoli went to a hospital for anxiety and depression. According to the case records of the psychiatric outpatient department of the hospital, Xiaoli complained of irritability, depression and poor sleep, and was diagnosed as insomnia, anxiety and depression.
The court held that regarding the application of the law to the dispute between the two parties, according to the provisions of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of the Marriage Law of the People’s Republic of China (II), if a party filed a claim for damages to the people’s court on the grounds of the provisions of Article 46 of the Marriage Law after going through the divorce registration formalities at the marriage registration office, the people’s court shall accept it. However, if the parties have explicitly given up the request when they agreed to divorce, or put it forward one year after the divorce registration, it will not be supported. According to Article 89 of the Supreme People’s Court’s Interpretation on the Application of Marriage and Family Compilation in the Civil Code of People’s Republic of China (PRC), "if a party files a claim for damages to the people’s court on the grounds of Article 1091 of the Civil Code after going through the divorce registration formalities in the marriage registration office, the people’s court shall accept it. However, the parties have clearly stated that they will give up the request when they agree to divorce, and the people’s court will not support it. " The specific infringement facts in this case can be determined that the pregnancy time of Xiao Zhang’s son born with others occurred during the marriage relationship between Xiao Zhang and Xiao Li, that is, Xiao Zhang had sexual relations with others during the marriage relationship with Xiao Li, according to the first registration form and the Birth Medical Certificate issued by a Beijing hospital in Beijing. According to the certificate letter issued by Xiaoli’s police station and the psychiatric outpatient cases of a hospital,It can be concluded that Xiaoli only learned of Xiao Zhang’s infringement in early 2022, that is, the infringement result occurred after the implementation of the Civil Code. According to the provisions of the Civil Code on tort liability, the infringement occurred before the implementation of the Civil Code, and the infringement damage result occurred after the implementation of the Civil Code, so the legal provisions of the Civil Code should be applied.
Therefore, Xiao Zhang had sexual relations with others during the marriage relationship with Xiao Li, and gave birth to children, which was in line with the provisions of Article 1091 of the Civil Code for damages. Xiao Li’s request for ordering Xiao Zhang to pay him 100,000 yuan for mental damages was justified and in line with the law. Regarding Xiao Zhang’s reply, there is no factual and legal basis, and the court will not accept it. In the end, the court ruled that Xiao Zhang paid Xiaoli 100,000 yuan for mental damages.
Judge’s prompt
How to exercise the claim for divorce damages?
Divorce damage compensation refers to a legal system in which the spouse’s major fault leads to the breakdown of the marriage relationship, and the fault party should compensate the innocent party for the loss. Divorce damages include material damages and mental damages, and the amount of compensation can be agreed by the husband and wife. If the agreement fails, the court will determine it as appropriate. The system of divorce damages is a kind of relief given by law to the innocent party in marriage at the time of divorce. On the basis of the Marriage Law, the Civil Code has added "other major faults" as the bottom clause that can be applied to divorce damages, and included some situations that did cause serious damage to the other party into the scope of damages, further improving the divorce damages system. "There are other major faults", that is, other behaviors that violate marriage and family obligations in marriage, such as adultery, drug abuse, gambling and whoring, are generally determined by the court according to the circumstances of the case.
Judge Zhou Tao of the Juvenile Family Court of Xicheng District People’s Court said that according to relevant laws and regulations, the subject of the claim for divorce damages can only be the innocent spouse. It is proposed by the innocent party to his legal spouse, that is, the guilty party. The third party who commits bigamy, cohabitation, adultery and other acts with the fault party is not the subject of compensation obligation in the divorce damage compensation system, and the fault-free party cannot claim compensation from the "third party" in divorce proceedings. If both husband and wife are at fault, neither of them can claim damages. In the case of divorce proceedings, if the innocent party, as the plaintiff, files a claim for divorce damages to the people’s court, it must be filed at the same time as the divorce proceedings. If the innocent party, as the defendant, does not agree to the divorce and does not file a claim for divorce damages, he can file a separate lawsuit for divorce in the future. In view of the case of divorce by agreement, if the divorce registration formalities have been completed in the marriage registration office, the people’s court may still file a claim for divorce damages with the court, but the people’s court will not support it if the request has been explicitly abandoned at the time of divorce by agreement.
During the marriage relationship, the violation of loyalty obligations by either spouse will often constitute an infringement of the other spouse’s rights, causing the other spouse to suffer both material and spiritual damage. It is the need to promote equal, harmonious and civilized marriage and family relations, and also the protection of social public interests to make the wrong party punished for the damage and the innocent party compensated and relieved for the damaged rights.
Text/Tian Jing Ma Jiakai (Beijing Xicheng Court)
















