[Legal Life] Ch28 Getting Married Is Easy, Getting Divorced Is Hard: Can a Marriage Be Dissolved Just Like That?

Remember our good friend (?) Chun-ming? Ever since he hit Chieh-yun in Episode 1 and was sued, he has been extremely emotionally unstable. Not only did he start having affairs, but after arguing with his wife Jui-chu he often turned violent. Not wanting the children to grow up in the shadow of their parents' fighting, and tired of being upset by Chun-ming's affairs, Jui-chu took the children back to her parents' home to let things cool down. To her surprise, a few days later Chun-ming filed for divorce in court. Jui-chu believes she is not the one who did wrong, so whether to divorce should be her decision.

Methods of Divorce

The Civil Code provides three methods of divorce: "divorce by mutual consent," where both parties simply agree; "judicial divorce," where one party asks the court to sever the tie by judgment; and "divorce by mediation or settlement," reached by both parties with the court's help.

Divorce by Mutual Consent

Divorce by mutual consent is what is commonly called an "agreed divorce." This method respects the wishes of both spouses: when both want a divorce, they may divorce on their own. As for formalities, you divorce the same way you married: there must be a written document (commonly called a divorce agreement), the signatures of two or more witnesses, and registration of the divorce with the household registration office. Besides stating both parties' intention to divorce and bearing the witnesses' signatures, the divorce agreement should ideally spell out how rights and obligations will be divided, such as the rights and duties of protecting and raising the children and how the couple's property will be divided.

Judicial Divorce

1. Grounds for Judicial Divorce

A marriage cannot simply be ended at will. If one spouse does not want a divorce and no agreement can be reached, the other must ask the court for a judicial divorce, dissolving the marriage through the effect of a court judgment. However, the court will not grant a divorce just because a party asks; there must be a ground provided by law. These grounds are set out in Article 1052, Paragraphs 1 and 2 of the Civil Code, briefly explained below:

1. The spouse commits bigamy. Under today's registration-based marriage system, bigamy is quite hard to commit, but it can still happen (especially when the first marriage was a ceremonial marriage under the old law). There are limits on seeking divorce on this ground: if one spouse consented in advance to or forgave the other's bigamy afterward, or more than six months have passed since learning of it, or more than two years have passed since it occurred, divorce may not be sought on this ground (see Civil Code Article 1053).
2. One spouse has consensual sexual intercourse with someone other than the other spouse, like having the Janfusun Ferris wheel and still flirting with the Miramar Ferris wheel. Naughty. Divorce on this ground is subject to the same limits in Civil Code Article 1053.
3. One spouse treats the other with abuse that makes living together intolerable (mental or physical abuse both count).
4. One spouse abuses the other's lineal relatives (father, mother, children), or one spouse's lineal relatives abuse the other spouse, making life together intolerable. For example, Shizuka abusing Nobita's mother.
5. One spouse maliciously deserts the other and the desertion is continuing. Desertion here does not mean driving someone up a mountain and selling them, but situations such as refusing to live together.
6. One spouse attempts to kill the other. There is a time limit: divorce may no longer be sought more than one year after the other spouse learns of it, or more than five years after the attempt (see Civil Code Article 1054).
7. The spouse has an incurable disease, such as AIDS.
8. The spouse has a serious, incurable mental illness.
9. The spouse's whereabouts, and whether they are alive or dead, have been unknown for more than three years.
10. The spouse has been finally sentenced to more than six months' imprisonment for an intentional crime. There is also a time limit: divorce may no longer be sought more than one year after learning of the final conviction, or more than five years after it (see Civil Code Article 1054).
11. Any serious ground other than the ten above that makes it difficult to maintain the marriage.

2. Limits on Filing for Divorce on the Ground of a Serious Reason Making the Marriage Difficult to Maintain

Items 1 through 10 above list the situations in which a judicial divorce may be sought, but marital breakdown sometimes stems from extremely complex, even private, causes that are hard to categorize. The law therefore includes the catch-all provision in item 11: any other serious reason that makes the marriage difficult to maintain may also be a ground for a divorce suit. This is expressly provided in Article 1052, Paragraph 2 of the Civil Code.

However, when suing for divorce on the ground of a serious reason making the marriage difficult to maintain, the law expressly provides that only the spouse who is not at fault may seek divorce. Whether this limit still applies when both spouses bear responsibility for the serious reason is disputed.

In practice, courts usually weigh each spouse's degree of fault for the serious reason (how much responsibility each bears). If their degrees of fault differ, only the less-at-fault spouse may seek divorce from the more-at-fault spouse; in other words, whoever is less to blame is entitled to seek divorce. If their degrees of fault are evenly matched, either may seek divorce (see Resolution No. 5 of the 2006 Civil Division Conference of the Supreme Court).

Courts take this approach because they believe that allowing the spouse at fault to seek divorce would amount to permitting divorce at will, which would undermine the order of marriage, run contrary to morality, and in particular violate the clean-hands principle. It would be unfair and inconsistent with the public's sense of justice and ethics. Courts therefore adopt a "passive breakdown" approach: a divorce suit requires that the marriage has already broken down, and the spouses' degrees of fault in causing the breakdown must be weighed.

Divorce by Mediation or Settlement

Filing for a judicial divorce does not necessarily end in a divorce judgment; the proceedings may sometimes turn to other solutions. For example, under Articles 23 and 3 of the Family Act, divorce matters must go through court mediation before a judgment is sought. If mediation succeeds, the court need not open trial proceedings and render a judgment. Or, during the trial, if the parties reach a certain consensus on divorce and are willing to meet halfway, the dispute can be resolved by settlement; once a settlement is reached, the court naturally need not continue the trial.

Divorce by Settlement

When the spouses decide to settle in court, the divorce takes effect in court once the settlement record is made; that is, the marriage is dissolved immediately upon the making of the settlement record. The court must also notify the household registration office of the divorce on its own initiative, and whether or not the parties later go to register it does not affect the validity of the divorce (see Civil Code Article 1052-1).

Divorce by Mediation

The procedure for divorce by mediation is similar to that for divorce by settlement: after the spouses go through mediation by the court's professional family mediators and a mediation record is made, the divorce takes effect and the marriage is dissolved. The court must likewise notify the household registration office on its own initiative (Civil Code Article 1052-1).

Registration of Divorce

Note that because Taiwan follows the principle of divorce by registration, a divorce generally takes effect only upon registration. However, for divorces by court judgment, mediation, or settlement, the divorce takes effect when the judgment becomes final or when the mediation or settlement record is made. Accordingly, an application to register a divorce normally requires both parties as joint applicants, but where a judicial divorce has become final, a divorce by mediation or settlement has been reached, or the divorce has otherwise already taken effect, one party alone may apply (see Household Registration Act Article 34).

Relevant Provisions

Civil Code Article 1049
A husband and wife may divorce by mutual consent. However, a minor must obtain the consent of his or her legal representative.

Civil Code Article 1050
A divorce by mutual consent shall be made in writing, signed by two or more witnesses, and registered with the household registration office.

Civil Code Article 1052

• I If one spouse falls under any of the following circumstances, the other spouse may petition the court for divorce:
  • 1. Bigamy.
  • 2. Consensual sexual intercourse with a person other than the spouse.
  • 3. Abuse by one spouse of the other that makes living together intolerable.
  • 4. Abuse by one spouse of the other's lineal relatives, or by one spouse's lineal relatives of the other, making life together intolerable.
  • 5. Malicious desertion of one spouse by the other that is continuing.
  • 6. An attempt by one spouse to kill the other.
  • 7. An incurable loathsome disease.
  • 8. A serious, incurable mental illness.
  • 9. Disappearance, with life or death unknown, for more than three years.
  • 10. A final sentence of more than six months' imprisonment for an intentional crime.
• II Where there is a serious reason other than those in the preceding paragraph that makes it difficult to maintain the marriage, either spouse may petition for divorce. However, if one spouse is responsible for the reason, only the other spouse may petition for divorce.

Civil Code Article 1052-1
When a divorce is reached through court mediation or court settlement, the marriage is dissolved. The court shall notify the competent household registration office ex officio.

Civil Code Article 1053
With respect to the circumstances in Subparagraphs 1 and 2 of the preceding article, the spouse entitled to petition may not petition for divorce if he or she consented in advance or forgave afterward, or if more than six months have passed since learning of the circumstance, or more than two years have passed since it occurred.

Civil Code Article 1054
With respect to the circumstances in Subparagraphs 6 and 10 of Article 1052, the spouse entitled to petition may not petition for divorce if more than one year has passed since learning of the circumstance, or more than five years have passed since it occurred.

Family Act Article 23
I Family matters, except for Category D matters under Article 3, shall go through court mediation before a judgment is sought.
II Where a party in such a matter petitions the court directly for a judgment, it shall be deemed an application for mediation, unless service on a party must be made by public notice or abroad.
III Unless otherwise provided, a party may also apply for court mediation of Category D matters before seeking a judgment.

Family Act Article 3, Paragraph 2, Subparagraph 2
II The following are Category B matters: ... 2. Divorce matters.

Household Registration Act Article 17, Paragraph 2
A divorce shall be registered.

Household Registration Act Article 34
The applicants for divorce registration shall be both parties. However, where a judicial divorce has become final, a divorce by mediation or settlement has been reached, or the divorce has otherwise taken effect, one party may be the applicant.