Study On The Divorce Proceedings Involved With Domestic Violence

Domestic violence is one of the main factors of family disruption, not only the direct victims of violence will be maked by physical and mental injury, other family members living together will be also adversely affected, especially children. Child growing up in the environment of domestic violence can not have complete happy family, the violence will leave a psychological shadow and hidden trouble for their adult life. At the same time, the family is the basic unit of society, Factors leading to family disharmony will become the main factors of social instability. Therefore, the study of domestic violence cases involved a series of legal problems has very important practical significance to family and society. In the current legislation, domestic violence cases are bound by the general rule of evidence presentation, i.e.," who advocates, who proof".But the domestic violence is differrent from the general tort cases,its special characteristics make the victim often faced with the difficult situation of evidence,she can not prove the existence of domestic violence. While,the client who is able to demonstrate the existence of violence is in difficult in obtaining satisfactory compensation,because of the stringent requirements of the elements of divorce damages system. The trial of cases of domestic violence usually want to solve these problems, but these laws are still imperfect. So carrying on the analysis are of great significance both in legislation and legal theories.In this paper,take Qiu Mei v. Fang Lin divorce case as an example, i will expatiate the following two issues arising from disputes and differences of opinion in detail: One is the interaction between legal principle of legal divorce and the criteria of the breakdown of marriage, namely the fact that domestic violence can determine whether the couple feeling no longer exists. This paper argues that as long as the emergence of domestic violence, one party insists on divorce, the mediation fails, then divorce judgement will be made. We can judge that the marital affaction no longer exists according to the happendance of domestic violence. The other is the causal relationship in divorce damage compensation elements, i.e., domestic violence has led to divorce and the defendant should be held responsible for damages.This paper argues that as long as the victim of domestic violence insists divorce, domestic violence has been reached the degree of feeling broken, constitute the reason for divorce. In this case,the defendant'act of violence led to the divorce ,and he shall be responsible for damages in divorce.This article reflects on other issues from the case also made a further consideration. First, the situation of divorce cases involving domestic violence. Although the Marriage law of our country include the Domestic violence in the scope of regulation,violence phenomenon is not vanished despite repeated prohibition, and the vast majority of victims are female. Second, divorce cases of Domestic violence in the difficult problem of burden of proof. The current provision on evidence principle makes victim in trouble,we should establish a specialized domestic violence rules of evidence, i.e., the inversion of provision on evidence principle. At the same time, we suggest correcting the general public'misconception of the nature of domestic violence to arousing the consciousness of victims, witnesses, relevant social organizations and public security organs.Third, the judge's attitude in cases of domestic violence. The judge is inclined to think the domestic violence caused by family affairs is a common, a tolerable social phenomenon, this attitude is not conducive to the reduction and elimination of violence, which should be corrected.