Analysis Of The Right To Claim For Mental Damages Caused By Spouse’s Cohabiting With Same-sex

In China,the number of divorces caused by spouses’ cohabiting outside the marriage with the same-sex has increased year by year.When litigating for divorce,the party without fault usually has two demands,namely,to request a divorce judgment and compensation for mental damage.This article takes Wu Moujia’s cohabitation with the same-sex outside the marriage,and his spouse Zhang Moumou sued for divorce as a typical case.It is concluded that the focus of such cases is twofold: what is the basis for dissolving the marriage;whether she has the right to claim compensation for mental damage.The verdicts of this case and almost all other similar cases are unanimously: verdict of divorce;rejection of claims for compensation for mental damage.Rarely,compensation for moral damage is also based on the "Marriage Loyalty Agreement" previously signed between husband and wife.Regarding the basis for judging divorce,this article analyzes the Marriage Law and combines the case to conclude that the dissolution of the marriage is not because the marriage is invalid or because it is revocable.Instead,it is based on "Other circumstances that lead to the breakdown of a couple’s relationship" regulated in the Marriage Law.Regarding the right to claim compensation for mental damages,this article starts from the legislative purpose of the divorce damages compensation system,and then makes a comparative analysis of the legal benefits infringed by "cohabitation with the opposite sex outside the marriage" and "cohabitation with the same-sex outside the marriage",and finally breaks through Acknowledging the mental obstacles of same-sex marriage to the right to claim moral damages studied in this paper,it is concluded that the right to claim mental damages for spouses cohabiting with the same-sex can be guaranteed by amending the judicial interpretation.The group’s right to claim compensation for mental damage needs urgent protection by law.The judicial treatment method developed in this article avoids the complicated procedures of amending the law and the consumption of human resources.Instead,it can better maintain the monogamous system,protect the right of spouse,highlight the principle of unified legal relations between rights and obligations,and maintain social stability.In addition,through this judicial treatment,a gap in the crime of sabotaging military marriage in China’s Criminal Law can be filled,by which the legal benefits of army men can be more effectively guaranteed.