How to prove separation in a divorce case?

Separation due to incompatibility is one of the major grounds for a couple to file for divorce and for a court to grant a divorce. In China, the legal basis for a divorce is as follows:

Article 1079 of the Civil Code states:

Either spouse intending to divorce may apply for mediation before a competent entity or directly file a petition with the people's court for divorce.

In a divorce trial, the people's court shall mediate first and grant a divorce if the mediation fails due to loss of affection between the spouses.

A divorce shall be granted if the mediation fails in the case of:

…

(4) the spouses' separation for up to two years due to incompatibility; or

A divorce shall be granted if either spouse files a petition for divorce for a second time after their separation for one year since the date of the decree to reject their petition for divorce made by the people's court.

However, it is not easy for the petitioner to prove separation since separation is the nonexistence of a fact, i.e., marital life. In practice, the petitioner may shift the burden of proof to the other spouse and request him/her to prove the contrary, i.e., they have been living together as husband and wife.

Specifically, if you filed a lawsuit for divorce, you may ask your spouse to provide evidence to prove your marital life. Of course, you don’t need to request any specific evidence because this is not your burden.

So as the petitioner, you only need to claim that you and your spouse have been living separately since a specific time point. If necessary, you may introduce witnesses, such as relatives, neighbors, roommates, etc., in court to prove that you have been living separately from your spouse.