July 2024
Draft Amendments to Provisions on Family Law of the Civil Code (Taiwan)
July 2024
Frank Sun and Elesha Wang
On March 24, 2023, the Taiwan Constitutional Court (referred to as "TCC") issued Judgment 112-Hsien-Pan-4, declaring the proviso to Article 1052, Paragraph 2 of the Civil Code partially unconstitutional. The Ministry of Justice (referred to as "MOJ"), considering national sentiments, prevailing legal practices, and foreign legislative norms regarding the irretrievable breakdown of marriage, drafted amendments to provisions on Family Law of the Civil Code, which were announced on May 15, 2024. A summary of the judgment and the draft amendment contents is as follows:
1. Judgment 112-Hsien-Pan-4
The TCC ruled that while the proviso to Article 1052, Paragraph 2 of the Civil Code does not inherently violate Article 22 of the Constitution protecting freedom of marriage, this proviso, regardless of whether a considerable period has elapsed since the occurrence of major reasons that make it difficult to maintain a marriage or whether the cause has continued for a considerable time, completely deprives the solely liable spouse of the opportunity to request a divorce. This may lead to a situation that is obviously harsh in certain cases, rendering it partially unconstitutional. Therefore, the court mandated an amendment to align with this ruling within two years.
2. Ministry of Justice Draft Amendments:
In response, the MOJ reviewed existing provisions related to the grounds for a judicial decree of divorce, alimony, and maintenance obligations. They initiated public consultations on proposed amendments to provisions on Family Law of the Civil Code and its Enforcement Law, focusing on:
(1) Reasons for a judicial decree of divorce
I. Adjust certain provisions of Article 1052, Paragraph 1 of the fault theory, and eliminate rarely applied reasons in divorce practice in recent years, such as bigamy and serious incurable diseases.
II. Broaden the grounds for a judicial decree of divorce in Paragraph 2 of Article 1052, and add that separation for a specific period as a reason.
(2) Alimony
I. Amend elements of alimony claims, removing restrictions based on divorce types and subjective party liability.
II. Add the method of exercising the right to claim alimony and the considered matters of the payment level of alimony.
III. Add the statute of limitations for the right to claim alimony, as well as the reasons for extinguishing the right to claim alimony and unexpired periodic payments.
IV. Add the reasons for reducing or exempting the obligor from payment obligations.
V. Add a provision allowing spouses to agree on alimony thereby exempting them from the applicable provisions of the law.
(3) Maintenance obligations
I. Add provisions outlining the rights and responsibilities during the couple's separation period, including the exercise and burden of rights and responsibilities for minor children.
II. Amend the order for older and younger lineal relatives by blood to perform the maintenance obligation and be entitled to maintenance to be the same.
III. Article 7-1 of the Enforcement Law for Part IV, Family Law of the Civil Code
If facts that occurred before the implementation of this amendment could be grounds for divorce under the amended provisions of Article 1052, a divorce action may also be filed.
The contents of all materials (Content) available on the website belong to and remain with Lee, Tsai & Partners. All rights are reserved by Lee, Tsai & Partners, and the Content may not be reproduced, downloaded, disseminated, published, or transferred in any form or by any means, except with the prior permission of Lee, Tsai & Partners.
The Content is for informational purposes only and is not offered as legal or professional advice on any particular issue or case. The Content may not reflect the most current legal and regulatory developments. Lee, Tsai & Partners and the editors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The contributing authors' opinions do not represent the position of Lee, Tsai & Partners. If the reader has any suggestions or questions, please do not hesitate to contact Lee, Tsai & Partners.
Frank Sun and Elesha Wang
On March 24, 2023, the Taiwan Constitutional Court (referred to as "TCC") issued Judgment 112-Hsien-Pan-4, declaring the proviso to Article 1052, Paragraph 2 of the Civil Code partially unconstitutional. The Ministry of Justice (referred to as "MOJ"), considering national sentiments, prevailing legal practices, and foreign legislative norms regarding the irretrievable breakdown of marriage, drafted amendments to provisions on Family Law of the Civil Code, which were announced on May 15, 2024. A summary of the judgment and the draft amendment contents is as follows:
1. Judgment 112-Hsien-Pan-4
The TCC ruled that while the proviso to Article 1052, Paragraph 2 of the Civil Code does not inherently violate Article 22 of the Constitution protecting freedom of marriage, this proviso, regardless of whether a considerable period has elapsed since the occurrence of major reasons that make it difficult to maintain a marriage or whether the cause has continued for a considerable time, completely deprives the solely liable spouse of the opportunity to request a divorce. This may lead to a situation that is obviously harsh in certain cases, rendering it partially unconstitutional. Therefore, the court mandated an amendment to align with this ruling within two years.
2. Ministry of Justice Draft Amendments:
In response, the MOJ reviewed existing provisions related to the grounds for a judicial decree of divorce, alimony, and maintenance obligations. They initiated public consultations on proposed amendments to provisions on Family Law of the Civil Code and its Enforcement Law, focusing on:
(1) Reasons for a judicial decree of divorce
I. Adjust certain provisions of Article 1052, Paragraph 1 of the fault theory, and eliminate rarely applied reasons in divorce practice in recent years, such as bigamy and serious incurable diseases.
II. Broaden the grounds for a judicial decree of divorce in Paragraph 2 of Article 1052, and add that separation for a specific period as a reason.
(2) Alimony
I. Amend elements of alimony claims, removing restrictions based on divorce types and subjective party liability.
II. Add the method of exercising the right to claim alimony and the considered matters of the payment level of alimony.
III. Add the statute of limitations for the right to claim alimony, as well as the reasons for extinguishing the right to claim alimony and unexpired periodic payments.
IV. Add the reasons for reducing or exempting the obligor from payment obligations.
V. Add a provision allowing spouses to agree on alimony thereby exempting them from the applicable provisions of the law.
(3) Maintenance obligations
I. Add provisions outlining the rights and responsibilities during the couple's separation period, including the exercise and burden of rights and responsibilities for minor children.
II. Amend the order for older and younger lineal relatives by blood to perform the maintenance obligation and be entitled to maintenance to be the same.
III. Article 7-1 of the Enforcement Law for Part IV, Family Law of the Civil Code
If facts that occurred before the implementation of this amendment could be grounds for divorce under the amended provisions of Article 1052, a divorce action may also be filed.
The contents of all materials (Content) available on the website belong to and remain with Lee, Tsai & Partners. All rights are reserved by Lee, Tsai & Partners, and the Content may not be reproduced, downloaded, disseminated, published, or transferred in any form or by any means, except with the prior permission of Lee, Tsai & Partners.
The Content is for informational purposes only and is not offered as legal or professional advice on any particular issue or case. The Content may not reflect the most current legal and regulatory developments. Lee, Tsai & Partners and the editors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The contributing authors' opinions do not represent the position of Lee, Tsai & Partners. If the reader has any suggestions or questions, please do not hesitate to contact Lee, Tsai & Partners.
