Q: Frequently Suffering Domestic Violence While the Spouse Refuses Divorce — How to Gather Evidence and Protect Oneself by Law?
My sister and brother-in-law have a poor marital relationship. My brother-in-law frequently commits domestic violence. My sister wants a divorce, but he refuses to agree. What are the specific legal procedures if resorting to litigation? What types of evidence should be collected?
A: The question you raised mainly involves two aspects: consultation on divorce litigation procedures and guidance on collecting evidence of domestic violence.
I. Procedures for Filing a Divorce Lawsuit
If the two parties fail to reach an agreement on divorce, either party may file a divorce lawsuit with the competent people’s court. The following materials shall be submitted when instituting divorce proceedings:
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Identity documents of both parties, including copies of the identity cards and household registration books of the plaintiff and defendant, as well as population inquiry documents issued by public security organs or other authorities.
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Copy of the marriage certificate.
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Identity documents of minor children, such as birth certificates.
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Complaint. The complaint shall cover major contents including the marital status of both parties, information on children, property status, claims and liabilities, as well as the fault committed by the other party during the subsistence of the marital relationship.
In your sister’s case, the specific circumstances of domestic violence committed by the husband during marriage shall be clearly stated in the complaint. Relevant evidence proving the act of domestic violence shall be submitted together with the lawsuit.
In addition, the plaintiff shall clearly set forth specific claims in the complaint, such as child custody, ownership of real estate, and assumption of marital debts.
- Evidence list and evidentiary materials. The plaintiff shall provide relevant evidence to prove the authenticity of the facts stated in the complaint.
II. Claim for Damages
Article 1091 of the Civil Code of the People’s Republic of China stipulates that where a divorce is caused by domestic violence, the innocent party has the right to claim compensation. Accordingly, your sister may file a claim for damages together with the divorce lawsuit.
Say No to Domestic Violence! Never tolerate domestic violence.
Evidence of domestic violence may be collected from the following aspects:
① Audio recordings, video recordings and photos proving the act of domestic violence.
② Photos and videos of bodily injuries.
③ Medical records and injury appraisal documents arising from domestic violence.
④ Police assistance materials due to domestic violence, including police receipt, police record, Anti-Domestic Violence Warning Notice, and administrative penalty decision.
⑤ Evidential certificates issued by relevant individuals or institutions.
⑥ Self-admission documents such as apologies, commitments and guarantee letters made by the perpetrator.
Anti-Domestic Violence Warning Notice
When seeking police assistance for domestic violence, the public security organ shall issue a warning notice under any of the following circumstances:
(1) The circumstances are relatively minor and the victim has not granted forgiveness;
(2) Domestic violence is inflicted upon minors, the elderly, persons with disabilities, pregnant and lactating women, or seriously ill persons;
(3) Other circumstances warranting a warning.
If the public security organ refuses to issue it, the victim may request the organ to issue the Anti-Domestic Violence Warning Notice.
If your sister continues to suffer domestic violence or faces an imminent risk of domestic violence during the divorce litigation, she may apply to the court for a Personal Safety Protection Order to safeguard her personal safety.