“Compensation for divorce damage (离婚损害赔偿，mentioned as “CDD”)”was introduced in 1980 PRC Marriage Law in order to protect the innocent parties (normally women) in divorce. 

The idea of “fault”is to provide a moral framework for marriage and act as a restraint on the parties’ behaviour – whoever is at fault should pay a price.

This article aims to explore two questions(1)Why does it seem so important to have CDD in PRCMarriage Law?(2) whether it is sufficient to protect the innocent party?

The role of “fault” in PRC Marital Law

In the Article 46 of the PRC Marriage Law, four kinds of “faults” are listed as grounds for an innocent party to apply for CDD, a sum of pecuniary award:

a. bigamy;

b. cohabitation between a person who has a spouse but co-habitats with a third person;

c. domestic violence;

d. maltreating or deserting any family member.”

If we look into the “basic principles” of PRCMarriage Law, it probably makes some sense to connect “compensation” with “fault”. 

By targeting bigamy, adultery, domestic violence and maltreating, CDD accords with “principle of monogamy” in Article 2 and “principle of protecting women, children and the elder” in Article 4. 

It provides the innocent parties with a legal right to call for justice and get material and mental relief after being hurt by their ex-spouses.

Let us compare the factors regarding fault divorce in PRC to the counterpart in Hong Kong.

What factors is relevant to the importance of CDD?

First, according to the respective provisions in PRC and HK divorce law, there are differences in the subjects who have the right to initiate a contested divorce(namely petitioner).

In Hong Kong law, only the innocent parties can petition for divorce. 

It is stipulated in 11A MCO Cap 179 that the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies one or more of the following facts-

(a) that the respondent has committed adultery …;

(b) that the respondent has behaved in such a way that… ;

……

However, to initiate a divorce law suit in mainland China one need not be the innocent party. It is said in Article 32 of PRC Marriage Law that divorce shall be granted if any of the following circumstances occurs and mediation fails:

a. either party is a bigamist or a person who has a spouse but co-habits ……;

b. there is family violence or maltreatment or desertion of any family member;

c. either party is indulged in gambling, drug-abuse ……;

The rules in Art.32 make it possible that a faulty party petitions for divorce and render an innocent party to be respondent in the law suit, which means that she may bear a double damamage: 

not only the damage caused by the misconduct by her spouse but also the damage casued by the divorce which she does not expect.

Therefore,if CDD was removed from Marriage Law, the parties would find out that there was little cost for divorce with almost no price to pay for their own fault, so that they  would divorce their spouse without fear of being punished by law. 

As law in China is regarded to have the function of leading the social value, such freedom can cause a failure to educate people to cherish their spouses and even encourage the party at fault to desert their spouses as long as they do not have affection on them any more.

Second, PRC Marriage Law lacks not only a series of fair standards applied to the  division of marital property, but also the duty of “maintenance” for a ex-spouse. 

In Hong Kong MPPO, Section 7 points out some standards in making an order for ancillary reliefin divorce proceedings, such as financial resources, needs,standard of living before divorce, age, disability, and contribution of each party（各自的贡献）. 

However, it is hard to find such standards not only in PRC Marriage Law itself but also in the related judicial interpretations. Also, in a divorce in PRC, one is unlikely to get a share of the other’s future income as “maintenance”.

But in Hong Kong divorce case law, normally a periodical payment will be granted to the financially weak party to maintain his/her life after divorce.

Indeed, PRCMarriage Law does regulate something like “contribution” and “needs” ——

“Article 40. In the case both husband and wife agree to separately own the property they respectively obtain during the existence of their marriage and either of them has spent considerably more effort on supporting children, taking care of the old or assisting the other party in work, etc, this party shall be entitled to demand the other party to make compensations at the time of divorce, and the requested party shall make compensations.”

It is easy to notice that the compensation mentioned in Art.40 is ONLY applied in “separate property regime（分别财产制）”, which is not a common case in mainland China. To some degree the Art.40 acknowledges that taking caring of children and the old and other homemaker’s work should be equally respected as monetary contribution. But in real life, seldom will a judge take that facrot into consideration when division of marital assets is concerned.

Also see Article 42.“If, at the time of divorce, either party has difficulties in life, the other party shall render appropriate assistance from his or her personal property like house, etc. ”

In this article, a word “assistance” is used instead of “compensation” or “maintenance”, which makes it more like a moral obligation but not a legal obligation. 

In fact, unlike HK divorce law, the maintenance of spouse is not an emphasis in PRC Marriage Law. Many divorced women suffer poverty if they act as “homemaker” before divorce. It is simply ironic that only in the eyes of divorce, women are asked to be “economically independent”, regardless of that their abilities to have economic independence have been taken away during the marriage as they contribute all their time to child bearing, raising and homework.

When there is no “maintenance” and no other periodical payment granted according to PRC law, CDD becomes the last resort for the exploited women to get some compensation.

And it is undeniable that without a clear standard like“standard of living” and “contribution” to benefit weaker parties (normally women) in division of property, the disadvantaged innocent parties(normally the wives) tend to continue their reliance on “faults” and CDD，which is yet far from enough to cover what they deserve like their the contribution to the marital family,the upbringing of children after divorce and the loss of chance in their own career.

Is CDD effectivein protection of the innocent party?

In the former parts of this paper, several factors are mentioned to explain the importance of CDD and people’s reliance on it. However, isit effective enough to protect the innocent party in a divorce law suit?

The first way to assess its effectiveness is whether CDDis widely applied in divorce cases. In a research conducted by a basic people’s court in Eastern China, between January of 2010 and May of 2013, only 2% of 1377 divorce cases were granted with CDD.

As there is a quite narrow scope of grounds for CDD,it is no wonder that CDD was applied in such a tiny proportion of divorces.In the Article 46, only four kinds of “faults” are listed as grounds for an innocent party to apply for CDD which is far from enough to cover the damage the innocent party has suffered. 

Meanwhile, the burden of proof also increases the difficulty for the innocent parties to claim CDD. Take “cohabitation” as an example—due to its privacy, not to mention that many innocent parties cannot even find out their spouses’ misconduct at all, witnesses are lacked in proving cohabitation ..

The second way to assess its effectiveness is whether CDD helps the innocent parties to get as much as they deserved in divorce cases. It is mentioned in the same research that the innocent parties were given quite low figures-- ¥17,000 on average, compared to what they asked for--¥50,000 on average. In fact, the latter is also quite low compared with the living standard in Eastern China in 2010s. 

It is also true that the lack of standards in deciding the exact figure of compensation and the extremely wide discretion of judges make the amount of compensation somewhat arbitrary.

Conclusion

To conclude, the absence of “maintenance”and lack of standards in marital property division make it necessary to have CDD in PRC marriage law and it also explains why people, especially innocent parties in fault-based divorces, keep relying on it. However, in the practices of recent divorce cases, neither is CDD widely applied nor does it effectively help the innocent parties to get as much as what they deserve.