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酒店门口活捉老公偷情,我却拿他没辙??| 橙律师
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酒店门口活捉老公偷情,我却拿他没辙??| 橙律师

8 十月 2019 - 14:10

婚外情这档子事,大家都不陌生。

不久前,韩国艺人具惠善称安宰贤出轨闹上了热搜。

再往前,还有许志安背叛郑秀文,相声演员曹云金、运动员林丹在妻子孕期出轨,全球第一富豪贝佐斯出轨电视主播,更别提轰动全国的文章、马蓉出轨事件了……

影视作品里也常刻画这一现象,最知名的莫过于《回家的诱惑》啦。

公众人物的出轨闹得轰轰烈烈,普通人遭遇这种事,却往往是苦不堪言:

如何定义婚外情?婚外情违法吗?身为被害者,该如何正确取证来维护自己的权益?

针对以上问题,橙雨伞隆重推出橙律师知识堂系列!
 
在原先的“橙律师”系列视频基础上,“橙律师知识堂”进行全方位升级,真人律师出镜,超实干货分享。
 
你想知道的关于婚外情的一切,这里都有!
 
快观看并收藏下方视频,让橙律师带你打赢婚姻保护战。
 
橙律师知识堂第三期
 

什么是婚外情?

我们一般所理解的婚外情,实际上包括三个层面的意义:
第一个层面,是一夜情,或者说,偶尔在外面和婚外的第三者异性保持开房关系。
这是普通意义上的婚外情,属于道德调整的范畴,不属于法律调整的范畴。当然,它本质是一种出轨行为。
第二个层面,是《婚姻法》上规定的正确的“婚外情”叫法,即“有配偶者与他人同居”。
顾名思义,“有配偶者与他人同居”指的是,有配偶的一方与婚外的异性保持长期的、稳定的共同生活的一个同居状态。
那么在法律规定里,什么才算“长期”?一个月,三个月,还是一年?事实上,现行法律没有明确的规定。
所以,在具体的司法试验当中,如何认定“有配偶者与他人同居”符合长期稳定的同居生活,完全是由法院根据双方的举证之证,在庭审过程当中行使自由裁量权进行综合考量的。
 
 
还有一种婚外情的特殊形式,就是重婚。
有配偶者与他人同居,甚至已经对外以夫妻名义持续稳定地共同生活,这种情况下才有可能构成重婚。
重婚是一种刑事犯罪,这意味着出轨的一方以及小三,可能会要被要求追究重婚罪的刑事法律责任,被判处两年以下有期徒刑、拘役或者管制的刑事处罚。
重婚罪的刑事指控是个自述犯罪,如果说被害人不去向法院主动起诉,那么公安机关也不会主动去启动这一罪名的追诉。当然,不知情的第三者是可以对出轨方提起重婚罪的刑事指控的。
 

婚外情该如何取证?

明白了婚外情的含义,那该如何取证呢?
说实话,婚外情案件的取证真的非常困难。因为婚外情是发生在封闭空间里,涉及他人高密隐私的一个违法行为。只有当在被害人捉奸在床的情况下,证据拿到法庭上,才可能会被法院完全认可采纳。
 
 
举个例子,女方很有收集证据的意识,知道老公三天两头不回家,起了疑心,找私家侦探,或者找亲戚朋友去跟踪自己的老公。在跟踪的过程当中,她发现老公跟一个女的,一个婚外异性,两人前脚后脚地走进旅店去开房。
女方拿着这样的视频证据,提交到法庭上,要求法院认定他的丈夫属于出轨的一方,这种情况下却很难被法院认可。
为什么?因为你无法证明他们在房间里干了什么。
作为出轨方来说,他可以辩解,我们俩是同事关系,在谈工作方面的事情。这种解释是行得通的。
尽管说有不合理的地方,比如为什么谈事情不能在工作时间,在办公室里谈?为什么非要开房在酒店里谈?但是我们不能完全去做这种推断,因为民事诉讼的基本原则是谁主张谁举证,你作为被害女方,想要证明丈夫婚内出轨,他是过错方,那么举证责任就应该在你。
在证据难以取得的情况下,很难认定这是婚外情。
还有一种情况比较容易证明,那就是在婚姻关系存续期间,女方发现男方出轨,准备起诉离婚的时候,男方和第三者已经在外面生了孩子。
这种情况就毫无疑问属于《婚姻法》所规定的有配偶者与他人同居的情况了。你想想看,在婚姻关系存续期间,出轨方跟第三者已经有了孩子,说明他们在一起可不是一两天,而是长期同居。这种情况下是有可能证明的。
关于婚外情的举证确实很困难,但是,如果说你想达到离婚的目的,那么再困难你也需要去举证证明。
如果说长期不在一起,可以通过打电话录音,或者说通过微信发语音、文字,通过短信、邮件来质问对方。你需要做的,是主动地把说出自己的质疑,如果他承认了当然最好,没有承认,再考虑其他的举证方法。
还比如说他有在外开房,你当然应该把酒店的监控录像调出来,把他的开房记录调出来。尽管这些材料未必会被认可,但若没有这个东西,那就更理亏了。
所以证据不怕多,就怕少,一定要主动地去寻求证据,哪怕证据确实非常难以获得,我们也应该去做这个工作。​​​​
 
P.S. 本文观点仅代表特约作者个人观点,部分图片来源网络。

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