【Legal Life】Ch29 At the End of a Marriage: How to Part Ways Without Owning Each Other Anything

Jui-chu eventually decided to get a divorce. She figured that at this point in their marriage, bickering over who was right or wrong was meaningless. As long as her child was by her side, everything else didn't really matter. However, considering her own financial capacity and fearing that her young child would suffer hardships, she decided she needed to settle accounts properly with Chün-ming, hoping to receive a lump sum of money and that Chün-ming would continue to coverمين the child's living expenses.

Meanwhile, although Chün-ming wanted a divorce, he refused to back down regarding the child, believing the child was a descendant of the Chang family and could not be left wandering outside. Furthermore, he argued that if the child did not end up in his custody, on what grounds should he be expected to continue paying for the child's living expenses? In court, Jui-chu and Chün-ming reached a consensus on the divorce itself, but then immediately fell into fierce disputes over property and child custody...

What property rights can be asserted upon divorce?

Property claims arising from the matrimonial property regime

The so-called matrimonial property regime refers to the legal system governing how spouses arrange and manage their property during the marriage—essentially the common scenario where a wife tells her husband, "What's mine is mine, and what's yours is still mine." Therefore, how property should be distributed after a divorce depends entirely on the matrimonial property regime the couple chose. There are three matrimonial property regimes in our country: statutory property regime, joint property regime, and separate property regime. Spouses may freely agree on which regime to adopt. If no agreement is made (which is the most common scenario), the statutory property regime applies directly.

1. Separate property regime means that the couple agrees that after marriage, their respective property statuses will remain the same as before marriage: what's mine is mine, and what's yours is yours. Therefore, after a divorce, there is no issue of how to distribute property between the parties.
2. Joint property regime means that the couple agrees that after marriage—except for privileged property listed in Article 1031-1 of the Civil Code (including items exclusively for the personal use of the husband or wife, such as a husband's razor or a wife's cosmetics; and items indispensable for the husband's or wife's profession, such as a wife's lawyer's robe or a husband's judge's robe)—all property becomes jointly owned. Upon divorce, how it is divided must be discussed by distinguishing between two points in time: before and after the adoption of this regime. Property owned individually before the agreement is adopted shall be taken back in its entirety by the respective owner if any remains upon divorce. Property acquired after the agreement is adopted constitutes joint property, which is split evenly upon divorce, with each party taking half.
3. Statutory property regime divides marital property into pre-marriage property and post-marriage property. In principle, spouses continue to individually manage and use their own property during the marriage (whether acquired before or after marriage). However, upon divorce, after each party takes back their pre-marriage property, their "post-marriage property" must be carefully calculated. After all, if one spouse goes out to work while the other stays home to care for the family, the contribution of the homemaker is substantial yet unpaid. Thus, the "right to claim distribution of surplus property" was established. Simply put, if there is a surplus after deducting post-marriage debts from post-marriage assets, the spouse with the lesser post-marriage property can claim half of the difference in post-marriage property from the other spouse who has more. This allows the stay-at-home spouse who did not go out to earn money to receive a share.

Damages for judicial divorce

1. If it is a consensual divorce where both parties agree, that is one thing; but in a judicial divorce, which is more likely to involve fault on one side, the law specifically provides that the injured spouse may claim reasonable compensation from the other party. This damage includes not only "property damage" that can be measured in monetary value, but also "non-property damage" that cannot be measured by money, such as psychological pain caused by a spouse having an affair. However, to claim "non-property damage," the claiming spouse must be free of fault regarding the judicial divorce. In short, only someone completely without fault in the breakdown of the marriage can claim this compensation for emotional distress (refer to Article 1056 of the Civil Code).
2. As for how compensation is determined to be "reasonable," it should be based on the degree of suffering experienced by the claiming spouse. The degree of suffering may take into account the duration of the marriage, age, social status, the amount of property recovered through property division, the amount of damages awarded for property loss, and all other circumstances (for example, comparing a husband having one affair versus a husband maintaining affairs all the way from his mistress being a freshman to graduating as a senior...). In practice, litigants frequently argue that the betrothal gifts given at the time of marriage constitute a loss and therefore seek compensation from the other party. However, the courts hold that betrothal gifts are considered gifts (i.e., donations) rather than damages, and thus cannot be claimed as compensation.
3. As a side note, once a betrothal gift is given, it generally cannot be reclaimed unless you made a prior agreement upon giving it—such as stipulating that it must be returned if a divorce occurs in the future. In legal terms, this is a conditional gift, and it might be possible to demand its return under the rules of unjust enrichment (refer to Supreme Court 50 Tai-Shang Judgment No. 351).

Alimony

1. The essence of alimony is actually an extension of the maintenance obligation. During a marriage, there is already a maintenance obligation toward a spouse who cannot maintain a living and lacks the ability to earn a livelihood; however, after a divorce, it is not the case that spouses no longer bear maintenance obligations. To provide some protection for a spouse in need, Article 1057 of the Civil Code additionally provides for the right to claim alimony (spouses may also agree on alimony privately, in which case they are not bound by the conditions below). That said, the wealthier party is not automatically required to pay alimony. To claim alimony, three conditions must be met:
   1. It is limited to spouses who are "free of fault" regarding the divorce.
   2. The claiming spouse experiences financial hardship as a result of the divorce.
   3. The divorce must be a "judicial" divorce.
      As long as the aforementioned three points are met, alimony can be claimed, even if the requested spouse is also free of fault regarding the divorce (refer to Article 1057 of the Civil Code).
2. How is the amount of alimony measured?
   The amount of alimony should be determined by considering the social status, age, self-support capability, and living standard of the claiming spouse, as well as the financial strength of the requested spouse. It is particularly important to note that alimony is strictly limited to the personal living needs of the claiming spouse and does not include the living needs of minor children (see below regarding children).

Exercise of parental authority and child support obligations regarding minor children after divorce.

Clarification of concepts

While children are minors, they still require parental care in their daily lives. The rights and duties of parents to protect and raise their minor children are referred to as "parental authority." This parental authority arises from a familial status relationship and cannot simply be discarded at will; even if parents divorce, it does not affect this parental authority. However, once a couple divorces, they can no longer exercise joint responsibility, so the attribution of rights and duties regarding minor children must be further determined. Therefore, parental authority does not disappear simply because the marriage ceases to exist; rather, the exercise of parental authority over the minor child is temporarily assigned to one party or a third party. Additionally, rights and duties concerning minor children were formerly referred to as custody rights under the old law, which is why people often hear phrases like "spouses fighting for child custody." However, under current law, custody refers to situations where a minor child has no parents or neither parent is able to exercise parental authority, prompting the appointment of a third party to exercise or bear the rights and duties toward the minor child. It is no longer something to be "fought over."