Husband Adulterous During Marriage and Has Illegitimate Child, Denies Paternity, and Wife Also Alleged to Have Adultery, Can the Wife's Claim for Compensation for Mental Damage Be Supported?

The Daohua Family Law Firm  The husband committed extramarital affairs during the marriage, has an illegitimate child, but denies being the father, and the wife also has an extramarital affair. Can the wife's claim for compensation for mental distress be supported?

Case Summary

Husband Liu Wei and a third party had an extramarital child during the marriage, but he refused to acknowledge himself as the father. The couple's relationship deteriorated, and he also claimed that his wife, Tan Mou, had affairs as well. Both parties engaged in a round of confrontation. Can the wife obtain compensation for emotional damage?

Case analysis

Liu某 on May 16, 2019, went through court mediation with Tan某 to divorce. Subsequently, less than a month later, on××××year××month××day, he/she registered a concluded marriage with a person named Zhan某某. Zhan某某 gave birth on××××year××month××day, delivering a baby. Liu某 admitted that he/she had a sexual relationship with Zhan某某 in March 2019, but argued, "I still can't be sure if the child is mine." At the same time, Liu某 neither provided evidence to confirm that the baby born on December 24, 2019, by Zhan某某 was not his/hers, nor applied for a paternity test. Therefore, it should be presumed that Tan某's claim is valid, namely, that the baby has a paternity relationship with Liu某.

And Liu Nong claims that during the existence of the marriage relationship, Tan Mou engaged in infidelity, both parties have faults that should be mutually offset, and there is no need to pay compensation for mental damage. The submitted audio and video content failed to clearly identify Tan Mou's conversation partner. Although it is claimed that the audio and video materials of Tan Mou's conversations with the conversation partner, as well as the call records, show that Tan Mou has an average monthly call duration of over 800 minutes with this object, which exceeds the normal communication level of friends, the factual basis is insufficient, and it cannot be determined that Tan Mou engaged in infidelity. Liu Nong's claim is not established.

Liu You and Tan You had sexual relations with a third party, Zhan Mou, during the course of their marriage, which constitutes fault. As a result, the couple's feelings broke down, leading to divorce. According to Article 46 of the Marriage Law of the People's Republic of China, Liu You should pay Tan You alimony for the divorce damage.

Liu You claims that according to Article 30, item (ii) of the "Interpretation (I) on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China" by the Supreme People's Court, if the party without fault as defined in Article 46 of the Marriage Law files a divorce lawsuit as the defendant and the defendant does not agree to divorce nor file a claim for damages based on the said provision, the defendant can file a separate lawsuit for damages within one year after the divorce. However, Tan Mou expressed agreement to the divorce in the divorce case, therefore Tan Mou has no right to file a lawsuit for post-divorce damages.

Liu You's above reasons are not valid. According to Article 30, item (ii) of the Interpretation (I) of the Supreme People's Court on Certain Issues Concerning the Application of the Marriage Law of the People's Republic of China, Tan You does not have the right to claim compensation for damage after divorce. However, the applicability of this provision is subject to the premise that the innocent party knew about the guilty party's wrongful conduct at the time of divorce (but did not raise the claim for compensation at that time), whereas in this case, Liu You concealed his wrongful conduct at the time of divorce, causing Tan You to be unaware of Liu You's extramarital improper sexual relationship at the time of divorce, and therefore unable to raise the corresponding claim. Hence, the above provision does not apply to this case.

According to Article 28 of the "Interpretation (I) on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China" by the Supreme People's Court: "The 'compensation for loss' stipulated in Article 46 of the Marriage Law includes compensation for material loss and compensation for mental distress. Where compensation for mental distress is involved, the relevant provisions of the Supreme People's Court's "Interpretation on Several Issues Concerning the Determination of Civil Liability for Mental Distress Caused by Civil Infringement" shall apply."

Article 1, Paragraph 1 of the "Interpretation on Several Issues Concerning the Determination of Civil Liability for Mental Damage Caused by Tort" stipulates: "If a natural person is illegally infringed upon the following personal rights and interests and sues the People's Court for compensation for mental damage, the People's Court shall handle it in accordance with the law: (1) the right to life, the right to health, and the right to physical integrity; (2) the right of name, the right of portrait, the right of reputation, and the right of honor; (3) the right to personal dignity and the right to personal freedom."

In this case, Liu Wei had an improper sexual relationship with a person outside of marriage before his divorce from Tan Wei, which violated the ethical and moral norms of marriage and family, breached the obligation of fidelity between husband and wife, severely damaged Tan Wei's personality and mental health, and also went against the core socialist values. He should pay compensation for mental distress.

August 2019

Dao Hua Marriage and Family Law Firm Team