The family is the cell of society and an important foundation for social harmony. However, in recent years, the continuously rising divorce rate and low marriage rate have caused headaches for the government, as these two data will affect the fertility rate that the government is very concerned about! The duty of fidelity between spouses in our country is a statutory obligation written into Article 1043 of the Civil Code! But this obligation has always been ignored and exists only in a declarative state! The root cause is that the cost paid by the violator is too small! Spouse infidelity is the main reason for the breakdown of marital relationships in divorce cases that I have represented for many years. The family conflicts caused by various trivial matters in marriage are not a big deal, and most of these conflicts can be gradually resolved over time (especially for couples who already have common children). But once a third party intervenes in a marriage, the outcome is completely different, and the small gap in the marriage immediately becomes a big canyon. At that time, divorce seems to be almost a common choice for the original partner and the "scumbag", and this result is exactly what the "mistress" hopes for! (Note: In order to facilitate readers' more intuitive understanding of the character relationships in the text, this article uses the original collocation to refer to the unmarried spouse and the former spouse after divorce.)

In the past judicial practice, when the original spouse sued the "mistress" for the return of the joint property gifted by the "scumbag" to the "mistress", there were many conflicting judgments nationwide, resulting in uncertainty in the outcome of the original spouse's rights protection process: first, whether the judgment supported the full or partial return; Secondly, for such disputes, the court has established various causes of action: some have established "gift contract disputes", some have established "property protection disputes", and so on; The third is that the legal basis for the application of the judgment is also different from each other; Is the right to return the original spouse's lawsuit still enjoyed after their divorce? There have been no clear laws, regulations, or judicial interpretations that specifically address these issues, which is also the main reason for the inconsistent trial and judgment results of courts across the country. The most famous case of the original supporting plaintiff "mistress" returning the joint property gifted by "scumbag" is the case of Lang Xianping persuading the original supporting plaintiff "mistress" (flight attendant) to return the property! Due to this case, Professor Lang was criticized and his reputation was ruined, but he also gave the general public a chance to understand that the law even granted this relief tool!

On January 15, 2025, the Supreme People's Court issued the "Interpretation of the Supreme People's Court on the Application of the Marriage and Family Part of the Civil Code of the People's Republic of China (II)", which has been implemented since February 1, 2025. It has made breakthrough provisions on issues such as the provision of real estate between spouses, parents' contribution to the purchase of a house for their children after marriage, and the violation of the duty of fidelity by gifting the joint property of spouses to others. In particular, Article 7 (hereinafter referred to as the "New Article 7") has made significant changes compared to previous relevant legal provisions and judicial interpretations regarding the provision of gifting joint property of spouses to others in violation of the duty of fidelity. The "7 new regulations" demonstrate the firm attitude of the state, society, and courts to stand on the side of the original party and defend the core socialist values! The "7 new regulations" have therefore brought new challenges and opportunities to marriage and family lawyers.

1、 Interpretation of the Specific Content of the "7 New Regulations"

1. Article 7 of the new regulations stipulates that regardless of the purpose, if one spouse gives the joint property of the couple to others or disposes of it to a third party at an obviously unreasonable price, the original spouse can confirm the invalidity of the gift and other disposal through litigation, and the property obtained by the mistress must be fully returned!

Article 7, Paragraph 1 stipulates that if one spouse, for the purpose of bigamy, cohabitation with others, or other violation of the duty of fidelity between husband and wife, donates the joint property of husband and wife to others or disposes of the joint property of husband and wife at an obviously unreasonable price, and the other party claims that the civil legal act violates public order and good customs and is invalid, the people's court shall support it and handle it in accordance with Article 157 of the Civil Code.

The above provisions determine that the legal basis for the invalidity of the original spouse's claim that the act of gifting joint property to the "mistress" husband and wife is "against public order and good customs". This is a model of the application of Article 8 of the Civil Code as a basic principle in specific types of cases! The legal consequences of the invalidation of the act of gifting and disposing of the joint property of a "scumbag" couple at a low price are handled in accordance with Article 157 of the Civil Code, which states that "after a civil legal act is invalid, revoked, or determined to be ineffective, the property obtained by the actor as a result of the act shall be returned; if it cannot be returned or is unnecessary to return, it shall be compensated at a discounted price." Therefore, Article 7 of the New Regulations also stipulates that the property gifted to the "mistress" is fully returned, and the property obtained by the "mistress" at an unreasonable low price can also be sued by the original spouse for return! The "7 new regulations" make it impossible for the role of "mistress" to become a tool for seeking wealth! This reflects the firm determination of the law to uphold the fidelity obligation of spouses and the principles of public order and good customs! The biggest victims of divorce are children, especially underage children! The pain brought by the breakdown of a family to a child can have a lifelong impact, and an unfortunate childhood sometimes truly requires a child to spend their entire life healing! The original spouse and children have both paid the price for the breakdown of the family, and if the "mistress" who destroys others' families does not pay the price and obtains illegal money and other benefits from the role of the "mistress", this is absolutely unacceptable in our social ethics, morality, and socialist core values.

2. Seven new regulations also impose penalties on cheating spouses

According to the second paragraph of Article 7 of the New Regulations, if one of the spouses falls under the circumstances specified in the preceding paragraph, and the other party requests to divide the joint property of the spouses during the existence of the marriage relationship based on Article 1066 of the Civil Code, or requests to divide the joint property of the spouses less or not during divorce based on Article 1092 of the Civil Code, the people's court shall support it.

The above regulations reflect the punishment for the infidelity of "scumbags" and provide the original spouse with practical and feasible remedies. Firstly, the act of "scumbags" gifting or disposing of the common property of the "mistress" couple at an obviously unreasonable price is classified as "the existence of transfer or sale of the common property of the couple, seriously damaging the interests of the common property of the couple". Therefore, the law grants the original spouse the right to file a lawsuit for the division of marital property. Judges should support the original spouse in dividing the common property of the couple during the existence of the marriage relationship in accordance with Article 1066 of the Civil Code. In addition, Article 7 of the new regulations clearly supports that if the original spouse is unwilling to settle and files for divorce as a result, according to Article 1092 of the Civil Code, the right enjoyed by the original spouse in the division of divorce property is "to request that the joint property of the couple be divided less or not", and the people's court should support it! This is a major breakthrough! Of course, the specific implementation situation still depends on the specific judgment results of the reference cases announced later.

In the past, in divorce disputes, although the principle of dividing the property of the cheating party in divorce has not been clearly stipulated, the basic division ratio generally adhered to by the court is 4:6, and the wrong party can be divided into about 40% of the couple's common property. Some courts even ignore the cheating behavior of the wrong party and insist on dividing it in half, without reflecting the legal punishment for the cheating party! These judgments have an extremely negative guiding effect! Especially for some women, when they are young, they give up their careers for the sake of their families and take care of their children, elderly, and husbands at home. After their husbands develop their careers, they cheat and give their "third child" and "fourth child" joint property as gifts. They also transfer and hide most of their joint property through other means. In the end, when the wife divorces, she not only does not receive any property, but also loses custody of her children due to lack of economic ability, which causes great social conflicts. The groundbreaking provision of the "7 new regulations" can be considered as a practical and actionable punishment and warning for both the offending spouse and the mistress!

2、 Challenges and opportunities for marriage lawyers under the "7 new regulations"

1. Due to the increase in the discretion of judges, higher requirements have been put forward for the professionalization of proxy lawyers

In the trial of a property dispute case involving the return of a mistress in the original matching lawsuit, judges determine whether the spouse has cheated, whether the joint property of the couple disposed of by the spouse is reasonable, and in subsequent divorce disputes in the original matching lawsuit, they grasp the judgment criteria for the fault party to divide or not divide the property. These are all within the scope of judges' free trial, and the Supreme People's Court has not issued clear guidance on this so far. Therefore, such cases place extremely high demands on the comprehensive quality, trial experience, and impartiality of judges, while also placing higher demands on the professional abilities of proxy lawyers. This also provides a good opportunity for professional marriage lawyers to develop. Considering that the original spouse can generally achieve the effect of "killing two birds with one stone" by suing the "mistress" to return the property dispute case, while obtaining the property returned by the "mistress", the winning judgment of the property return case can also be used as evidence in subsequent divorce dispute cases, in order to request the judge who tried the divorce case to rule that the spouse at fault should not divide or divide the property less. So, in this situation, it is very important for the agent to win the case of returning property to the "mistress" and obtain a favorable outcome.

2. The intention of promoting socialist core values in the "7 new regulations" is clear, and it must be taken seriously and reasonably used to influence judges' trials when representing lawyers in litigation.

The "7 new regulations" require the court to establish a correct value orientation in the trial, by denying property disposal behaviors that violate the obligation of loyalty, guiding both spouses to abide by the obligation of marital fidelity, and thus maintaining a stable marriage and family relationship. The law cannot allow the original spouse who is wholeheartedly devoted to the family to be both sad and financially damaged, nor can it allow the "mistress" and "knowing three to be three" to obtain illegal benefits and seriously undermine the socialist core values! In my case representation, I have encountered an extremely arrogant "mistress" whose shameless behavior almost led the original spouse to take extremely extreme measures and even implicated innocent children! Without punishment and paying the price, we cannot stop the unhealthy trend! The introduction of explanation (2) demonstrates the country's firm stance and attitude of standing together with the original partner! Marriage lawyers must pay attention to this and therefore reasonably influence the judge's judgment.

3、 Several suggestions for dealing with the original spouse when discovering their infidelity

Whether it's a wife or a husband, when they first learn about their spouse's infidelity, their psychological state is bound to collapse. How to face and deal with it at this time is a very sensitive and complex issue. Here are some suggestions from the author:

1. Never refuse communication

Be sure to try to have honest communication with the wrong spouse and understand the truth of the matter. Sometimes misunderstandings or poor communication are the main reasons for problems in the relationship between husband and wife. So when one party learns that their spouse is cheating, they must remain calm, express their feelings, and listen to the other party's arguments and explanations. Marriage is not just a matter of two people's emotions, but also involves two large families, the elderly, children, property, debt, and so on. If a couple has been married for many years and has multiple common children, it is not possible to solve the problem immediately by divorcing. My wife, who consulted me, angrily said, 'Lawyer Wu, I just want a quick divorce and take the child away, so that the scumbag family can never see the child and make them pay the price!' Whenever I encounter clients with such thoughts, I patiently advise them. No matter how wrong the man is, he cannot deprive the child of the right to get along with his father. If both parties agree to divorce in the future, communication should not be refused. How to dissolve the broken marriage relationship, what measures to avoid in divorce, etc., will all have an impact on the child's life. Communication and negotiation are undoubtedly the ways to minimize the negative effects of divorce.

2. Seeking help from professional marriage counselors and psychological counselors

If there are indeed problems in the relationship between husband and wife but it has not completely broken down, it is recommended that both parties seek the help of professional marriage counselors and psychological counselors together. A professional third party can provide neutral opinions, help both parties better understand each other, identify the problem, and assist both parties in negotiating a solution to the problem. If both parties can overcome the difficulties, reconcile, and continue their lives together as a result, then this spousal infidelity incident will not change the overall direction of family development.

3. Protect one's own rights and interests, collect and preserve evidence in a timely manner

It is very important for the original spouse to understand how to protect their legitimate rights and interests after learning about their spouse's infidelity. It is recommended to consult a professional marriage lawyer as soon as possible. A reliable professional lawyer will accurately identify the problem based on their case handling experience and provide reasonable advice. If the original spouse believes that they cannot overcome this hurdle and insists on divorce, the lawyer can also provide professional advice on another solution in a timely manner, such as how to collect and preserve evidence. In reality, infidelity by a spouse can sometimes be accompanied by domestic violence, making it even more necessary to seek the help of a professional lawyer.

4. Pay attention to mental health

When the original spouse experiences infidelity, they usually experience intense emotional fluctuations. At this point, it is important to pay attention to one's own mental health and avoid extreme behaviors that harm oneself or children. This not only prevents the wrongdoer from paying the price, but also allows the wrongdoer and the "mistress" to take advantage. In the divorce cases represented by the author, a large proportion of innocent original partners have experienced anxiety and depression, and some have serious suicidal tendencies. At this time, the proxy lawyer first provides psychological counseling to the client, helping them overcome negative emotions and think through it. Only in this way can they truly start a new life after the divorce.

5. Carefully decide on the future

If a spouse cheats, whether to choose forgiveness and continue this marriage depends on the individual's actual situation. Divorce is not the best solution to a spouse's infidelity, and regardless of the final decision, it should be a thoughtful decision rather than a momentary impulse. Everyone's situation is unique, and when dealing with such sensitive issues, it is important to remain rational and independent, not influenced by the thoughts of friends or family. The advice of a professional and reliable marriage lawyer may be the most valuable reference.

4、 Several suggestions on how to collect evidence of infidelity when the original spouse discovers it

1. Flipping through the computers, hard drives, and unused old phones at home to see if there are chat records, photos, files, and other materials, and then checking the spouse's Weibo, Xiaohongshu, SF Express, Scanwang, Didi Chuxing, and other platforms and apps may yield unexpected gains. Please take screenshots, photos, and videos of any relevant information discovered. If you can find the opportunity to open your spouse's phone and quickly merge the conversation between your spouse and the "mistress" and send it to you, if there is a video recording of this process, the proof will be stronger.

2. Check if there are any intimate travel records between spouse and mistress, such as flight tickets. In addition, it is particularly important to note the driving recorder of one's own vehicle. If the "mistress" has been in the car before, they will definitely have a conversation, and their conversation may contain a lot of useful information. Moreover, this evidence was found in one's own car, and the source of the evidence is legal!

3. If a witness is willing to testify, they should be asked to write a witness testimony. If the witness is unable to write a witness testimony or testify in court, they generally do not refuse to talk to you about the facts they have seen over the phone or WeChat. This type of phone recording or WeChat recording can also be used as evidence, but it is best to consult the witness's opinion before submitting this evidence to the court.

4. If the spouse regrets their infidelity and hopes for forgiveness from the original spouse, then ask them to write a letter of guarantee, which is the most direct written evidence. If it is found that the spouse and "mistress" have stayed in a hotel, the time, hotel name, and address should be recorded. In the future, if necessary, an investigation order can be applied to the court to retrieve their room opening records. If they are still having children outside marriage, the child's birth records and registered residence data are the most direct evidence of infidelity.

5. Be sure to record the first confrontation with your spouse! This may be the most important evidence, and it is important to find an opportunity to confront the other party without their alertness and prepare in advance.

6. Electronic data evidence such as recordings, videos, WeChat records, and text messages must be kept in their original carriers, and should not be copied or discarded. It is very important to preserve the original carrier of evidence! (If the divorce between the two parties takes place in court, when the original spouse presents this evidence to the judge, the judge usually checks the original carrier of this evidence before recognizing its authenticity!)

In summary, collecting evidence of extramarital affairs by the original spouse is a matter that requires careful operation. It is necessary to ensure the validity of the evidence, comply with laws and regulations, and avoid infringing on the privacy or other legitimate rights and interests of others (special reminder: "mistresses" also have appropriate privacy rights!). During the process of collecting evidence, it is recommended to consult a professional marriage lawyer. If the evidence collected through the above methods can form a complete chain of evidence, whether it is in the case of the original spouse's lawsuit for the return of property to the "mistress" or in the divorce dispute with the "scumbag", these pieces of evidence will help the original spouse better safeguard their legitimate rights and interests!