The Constitutional Court made the 112th Constitutional Judgment No. 4 judgment yesterday, declaring that the "duty spouse shall not apply for divorce" is partly unconstitutional.

(Photo by reporter Wang Yisong)

[Reporter Wu Zhengfeng/Taipei Report] Judge Zhu Zhengkun of the Kaohsiung Juvenile and Family Court and the two men who had an affair believed that the proviso of Article 1052, Paragraph 2 of the Civil Code stipulated that "the responsible spouse shall not apply for divorce", which violated the freedom of marriage and violated the proportion and the principle of equality, petition for constitutional interpretation.

The Constitutional Court made the 112th Constitutional Judgment No. 4 Judgment yesterday, declaring that this provision is partially unconstitutional, relaxing the requirements for divorce, and the relevant authorities should amend the law within two years.

Prohibition of divorce is not in line with the will of freedom of marriage

The judgment pointed out that it is constitutional in principle to restrict the responsible spouse from suing to divorce, but after the occurrence of a major cause that cannot maintain the marriage, if the responsible party is not allowed to sue for divorce regardless of the length of time, it will completely deprive him of the opportunity to divorce, which may lead to divorce. The case is too harsh and does not conform to the will of freedom of marriage

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The judgment stated that relevant agencies can refer to foreign legislation to review whether the civil law adjudicated divorce adopts the "separation" system, and clearly stipulates that if they do not live together for a certain period of time, it can be used as an essential requirement for adjudicated divorce.

In order to avoid adverse consequences caused by relaxing the reasons for divorce, "harsh clauses" can be introduced. For example, for the benefit of minor children, it is necessary to continue to maintain the marriage, or when the party who refuses to divorce may fall into extremely harsh difficulties due to divorce, even if the marriage has broken down, it is still not allowed. divorce.

Not living together for a certain period of time can be used as a divorce requirement

In order to take care of the living security of the irresponsible and vulnerable spouses and minor children after divorce, the judgment requires the design of supporting measures, such as ordering the responsible party to pay higher alimony, reasonably increasing the proportion of the remaining property distribution of the other party, and bearing more minor children. Alimony, aggravated liability for damages caused by divorce, etc., in order to provide effective legal protection and relief and fair substantive compensation.

The Ministry of Justice, the competent authority, affirms the Constitutional Court’s intention to declare that the provision is constitutional in principle and safeguard the constitution’s protection of freedom of marriage. It also respects the interpretation of some cases that is too harsh and partially unconstitutional, and will actively study and properly amend the law according to the intention of the judgment.