Oli Wong
The Supreme Court rendered the 108-Tai-Shang-1516-Zi Decision of February 19, 2020 (hereinafter, the “Decision”), specifically holding that if one of the spouses has not applied for retirement when a final decision on divorce is rendered, the pension and old-age benefit to be obtained shall not be included in the existing post-marital property.
According to the facts underlying this Decision, the parties were previously the husband and wife. After the Appellee filed suit for divorce, the Taiwan High Court subsequently rendered a final decision to grant the divorce of the parties (hereinafter, the “Old Case”) and ordered the Appellant to pay the cost of living of the Appellee’s family and compensate the Appellee for non-property damage. The Appellee applied to the Taoyuan District Court for compulsory enforcement against the Appellant’s property in order to carry out the final decision on the Old Case. The original trial court held that the record date for calculating the difference between the residual assets of the parties should be February 1, 2010. However, although the Appellant had not retired on that date, still his right to claim a pension and old-age benefit under the labor insurance was an existing right, not just an expected right. Therefore, the pension and old-age benefit he was entitled to on February 1, 2010 should be both included in the calculation of the post-marital property.
It was first pointed out in this Decision that pursuant to the first part of Article 1030-1, Paragraph 1 and Article 1030-4, Paragraph 1 of the Civil Code, in case of a divorce between a couple by way of a court decision, the calculation of the value of the existing post-marital property shall be based on the timing of the complaint in order to calculate the difference in the residual assets for distribution. In addition, Article 55, Paragraph 3 of the Labor Standards Law and Article 58, Paragraph 3 of the Labor Insurance Statute, the labor pension and old-age benefit shall be claimed within 30 days after retirement and after the labor insurance is surrendered, respectively.
It was further determined in this Decision that the Appellant was still employed by Company A and had not applied for retirement and had not obtained his pension and old-age benefit during the period after the Appellee filed suit for divorce and before the final decision was rendered for that case. If so, it is not without question if the existing post-marital property included the pension and old-age benefit under the labor insurance when the Appellant had not applied to Company A for retirement and to the Bureau of Labor Insurance for the surrender of the labor insurance due to termination of his employment. That original trial court jumped to the conclusion that the pension and the old-age benefit which had not been received should both be included in the Appellant’s post-marital property to calculate the Appellant’s residual property is not without controversy. Therefore, it was concluded in the Decision that the original decision should be reversed and remanded to the Taiwan High Court for violation of laws and regulations.