Compensatory Damages in Divorce Proceedings Under the Marriage Law of China

Section 46 of the Marriage Law of China1 provides that an innocent spouse shall have the right to apply for damages as compensation where divorce proceedings are brought under circumstances that involve (a) the commission of bigamy, (b) cohabitation of a married person with a third party, (c) domestic violence or (d) maltreatment or desertion of one family member by another. Academics have variously described this provision as creating either a system of compensatory damages resulting from divorce, or a system of damages resulting from fault based divorce.2 For convenience the writer will refer to this system as that of “divorce compensatory damages” throughout this article. As the system of divorce compensatory damages is relatively new in China,3 and the provision from which the system derives may look simpler than it actually is,4 theoretical and practical questions may be raised about it. This article discusses this system from the perspectives of the legislative purpose behind its creation, its juridical nature,