Newsletter
Judicial Divorce in a Legal Vacuum—Judicial Practice Following the Expiration of the Legislative Amendment Deadline Set by Constitutional Court Judgment 112-Hsien-Pan-4 (2023)
On March 24, 2023, the Constitutional Court handed down Judgment 112-Hsien-Pan-4 ("Judgment"), holding that the proviso of Paragraph 2, Article 1052 of the Civil Code is unconstitutional to the extent that, in restricting the spouse wholly at fault from filing for divorce, which may be draconian in certain cases. The Constitutional Court instructed competent agencies to amend the laws in accordance with the holding of the Judgment within two years of the Judgment's promulgation; if the amendment is not completed by then, the courts shall rule in accordance with the holding of the Judgment. The deadline for amendment expired on March 23, 2025; however, the Civil Code has yet to be amended, and the draft amendments are still under review by the Legislative Yuan’s committee. In other words, divorce cases can now only be handled case by case in accordance with the holding of the Judgment. The Supreme Court has handed down several significant decisions during this period, and the framework for review has gradually taken shape. Below is a summary of these developments:
1. The Scope of Application of the Proviso of Paragraph 2, Article 1052 of the Civil Code Has Been Narrowed
The Judgment makes clear in its reasoning that if both spouses are responsible for the substantial reasons that make it difficult to maintain the marriage, regardless of the degrees to which they are at fault, they are not subject to the proviso of Paragraph 2, Article 1052 of the Civil Code. Following this interpretation, the Supreme Court likewise held in Civil Judgment 112-Tai-Shang-1612 (2023) that "when both spouses are at fault for the substantial reasons that make it difficult to maintain the marriage, both may file for divorce against the other under the main text of Paragraph 2, Article 1052 of the Civil Code," while adding that "the spouse that is less at fault is not precluded from claiming damages under the law from the spouse that is more at fault for the damages suffered as a result of the dissolution of the marriage, so that a fair balance may be struck."
2. Framework for Reviewing a Divorce Petition Filed by the Spouse Wholly at Fault
The Judgment makes clear in its reasoning that where the ban on filing for divorce may be draconian in certain cases, the spouse wholly at fault should not be completely deprived of the right to file for divorce.
After the expiration of the deadline for amendment, the Supreme Court, in Civil Judgment 114-Tai-Shang-881 (2025), outlined the specific factors to be considered in reviewing a divorce petition. The Supreme Court held that, in determining whether the ban on filing for divorce is draconian, the court must strike a balance by also taking into account the freedom of the spouse not at fault to maintain the marriage. Specifically, the court must "examine whether the willingness of the spouse not at fault to maintain the marriage rests on preserving the substance of the marriage or merely its outward form; whether, upon the dissolution of the marriage, the rights and obligations arising from the dissolution of the family relationship have been fairly satisfied; and whether the emotional, financial, and economic positions of the spouse not at fault, as well as the best interests of the minor children, have been safeguarded. The mere fact that a substantial reason that makes it difficult to maintain the marriage has persisted for a significant period does not, in itself, justify the conclusion that restricting the spouse at fault from filing for divorce is draconian." The above judgment further clarifies whether the ban is draconian should be determined by the court of first instance and the court of second instance. Where the court has duly weighed all the aforementioned circumstances, its determination may not be arbitrarily challenged when appealing to the Supreme Court.
3. How the Courts of First Instance and Second Instance Have Applied the Judgment
(1) Cases in which the divorce action was granted
In Taiwan High Court, Taichung Branch Civil Judgment 114-Chia-Shang-95 (2025), the plaintiff had long cohabited with another person and was the spouse wholly at fault; however, the court, taking into account that the parties had been separated for more than fifteen years, their children were all adults, and the defendant retained the ability to work and had been given real property as a gift, held that denying the divorce would fundamentally deprive the plaintiff of the freedom to divorce, which would be draconian. Similarly, in Taiwan High Court Civil Judgment 114-Chia-Shang-193 (2025), the plaintiff was found to be the spouse wholly at fault for having groundlessly accused the defendant of adultery, which had long made it impossible for both parties to communicate in good faith. The court stated that the marriage had lasted for eight years, yet the parties had lived apart for nearly seven of those years—more than four-fifths of the marriage’s duration—leaving the marriage as nothing more than an empty shell. Furthermore, as there were no children and the defendant was financially independent, the court ruled that "to compel the appellant [the plaintiff] to remain in a marriage that has broken down, is difficult to maintain, and exists in name only, thereby restricting the appellant's freedom to divorce merely because the appellee [the defendant] refuses to consent to the divorce, would clearly be draconian."
In Taiwan High Court Civil Judgment 114-Chia-Shang-158 (2025), the court took into account that the parties had been separated for nearly eight years, amounting to almost one-third of the duration of the marriage; their finances and daily lives had been handled separately during that period; their children were all adults; the spouse not at fault had long known that the other spouse was living with a third party and had not participated in the other spouse’s life for many years; and the spouse at fault had expressed sincere remorse during the proceedings. The court concluded that granting the divorce would not change the existing reality of their family life, and that compelling the spouse at fault to remain in a marriage that exists in name only would be draconian. On appeal, the Supreme Court, in Civil Ruling 115-Tai-Shang-1100 (2026), dismissed the appeal as inadmissible, stating that the lower court’s decision to grant the divorce—based on a careful consideration of the aforementioned factors identified in the Judgment—was consistent with the law.
(2) Cases in which the divorce action was dismissed
In Taiwan High Court Civil Judgment 114-Chia-Shang-104 (2025), the court determined that the breakdown of the marriage was caused by the plaintiff's adultery and that the plaintiff was the spouse wholly at fault. Despite this, the plaintiff continued to deny responsibility, instead blaming the defendant for the marital breakdown. Furthermore, the plaintiff ceased paying household living expenses in December 2024. The parties had a minor child, and the defendant had completed the treatment program mandated by a protection order and was actively preparing to restore their life together. The court concluded that the defendant’s desire to preserve the marriage was not motivated by retaliation or a mere intent to maintain the facade of a marriage. The court reasoned that granting a divorce to the plaintiff, who was the spouse wholly at fault, "would amount to permitting a spouse eager to escape the bonds of marriage to unilaterally destroy the marriage and, having caused it to break down, subsequently compel the spouse not at fault to accept a divorce."
An examination of judicial practice following the expiration of the legislative amendment deadline reveals that when a spouse wholly at fault files a divorce petition, the court’s decision to grant or deny the petition hinges on the length of the separation relative to the duration of the marriage, whether there are minor children, whether the spouse not at fault would face financial hardship after a divorce, and whether the desire of the spouse not at fault to maintain the marriage is substantive or merely formal. Moreover, determining whether the ban on filing for divorce is draconian falls within the purview of the court of first instance and the court of second instance. Consequently, a party seeking to file for divorce should fully present arguments and evidence regarding each of the above factors before the court of first instance and the court of second instance. Conversely, a spouse who is not at fault and wishes to preserve the marriage should focus on explaining his or her desire to maintain the marriage and detailing the concrete steps he or she has taken toward reconciliation. Until the legislature enacts amendments, the specific application of the "circumstances in which the ban is draconian in a case," as set out in the Judgment, will continue to be developed through judicial practice on a case-by-case basis.