Can Spouses Claim Damages against Each Other
Can Spouses Claim Damages against Each Other
Legal Grounds for a claim for damages between spouses
If either spouse is at fault for the alienation of their marital relationship, the other spouse who is not at fault, the innocent spouse, may claim damages against the spouse at fault based on the grounds stipulated in Article 1091 of the Civil Code. Such grounds include bigamy, cohabitation with a third person in the name of husband and wife, domestic violence, maltreatment or desertion of family members, or any other major fault of the spouse against whom damages are claimed.
A claim for damages may be sustained in a divorce case
A claim for damages is conditional on a claim for divorce. In principle, a claim for damages made by a spouse against the other spouse will not be sustained unless it is filed in a divorce case. This means that, if a spouse files a lawsuit claiming damages against the other spouse without a claim for divorce, the case will not be admitted or will be dismissed if it has been admitted.
Types of Damages in a divorce case
Damages that a spouse may claim against the other spouse based on the above legal grounds include economic damages and emotional distress damages. If such a claim is sustained by the court, the spouse making the claim may be granted ownership of all or a bigger portion of their community property and/or additional payment of damages by the spouse at fault. The specific amounts of the two types of damages will be determined by the court according to the SPC's Interpretations Pertaining to the Determination of Damages for Mental Distress, considering the severity of the tort of the spouse against whom damages are claimed, the means, place, mode, consequences, and other aspects of the tort, illegal profit (if any) obtained by the tortfeasor from the tort, the financial resources and income of the tortfeasor, and the average standard of the living of the place where the court is located.
Rules for claiming damages
1. Innocent spouse as the plaintiff.
If the innocent spouse is the plaintiff in a divorce case, the claim for damages against the spouse at fault who is the defendant should be made in the same divorce case. A claim for damages will not be sustained if it is made without a claim for divorce or divorce is not granted in the divorce case.
2. Innocent spouse as the defendant
If the innocent spouse is the defendant in a divorce case, and does not agree to divorce, he/she may choose to file a counterclaim for damages against the plaintiff in the same divorce case or file a separate lawsuit to claim damages.
If the innocent spouse, as the defendant in a divorce case, does not file a counterclaim for damages in the first instance, and does so in the second instance, the spouses may reach an agreement on damages through mediation by the court, failing which the innocent spouse may file a separate lawsuit to claim damages, or the court of second instance will adjudicate the case and make a decree if both spouses agree to the jurisdiction of the court of second instance.
Claim for damages after divorce registration has been completed
If both spouses have completed the divorce registration procedure at the marriage registration office of the civil affairs bureau, the innocent spouse may file a case to claim damages against the spouse at fault based on the grounds stipulated in Article 1091 of the Civil Code. But the claim for damages will not be sustained if the innocent spouse expressly waives the right to claim damages against the spouse at fault in the divorce agreement.
Robert Zhang 
Steve Li 