Wed, Feb 13, 2019 - Page 8 News List

Process for a divorce in dire need of adjustment

By Lee Yen-feng 李儼峰

Netizens last month reacted angrily after a video surfaced online that appeared to show a man from New Taipei City beating his wife and 11-year-old son for forgetting to ask a meatball vendor to add hot sauce to his order. The footage has generated renewed attention, across the political divide, to the problems of domestic violence and child abuse.

In addition to ensuring that justice is served after the event, people should also pause to consider what can be done to prevent such instances of domestic violence and child abuse from occurring in the first place. This should include stronger penalties for child abuse, building a robust tip-off system for suspected cases of domestic abuse and ensuring that relevant social services departments are properly equipped.

Another area requiring attention is the lack of protection afforded to victims of domestic abuse — both spouses and children — provided by regulations governing conditions for divorce under the Civil Code. Article 1052 of the Civil Code, which sets out the conditions for granting a divorce, must be reviewed and the conditions relaxed.

The Civil Code provides for a juridical decree of divorce, whereby one party in a marriage may petition the court to grant a divorce according to a list of 10 conditions, and a further nonspecific clause that provides for the occurrence of any event “that renders it difficult to maintain the marriage.”

In reality, the number of spouses who apply to the courts for a juridical decree of divorce according to those 10 conditions remains low. In most cases, a spouse will cite the aforementioned “general clause” to apply for a divorce.

However, in such cases the burden of proof rests with the petitioner. Under the Civil Code, the party that files for a divorce must provide evidence of a specific reason why it would be difficult to continue with the marriage.

In reality, a relatively high proportion of evidence put forward in such cases is related to domestic violence. However, as domestic violence is often sporadic, it can be difficult to prove beyond reasonable doubt in a court of law. The victims must often suffer in silence until evidence of violence can be accumulated. It is an absurd situation.

The general requirements of Article 1052 can be practically understood to mean that the petitioning party must bear less (or equivalent) responsibility for the breakdown of the marriage, while the other party must bear a greater (or equivalent) responsibility.

As the bar is set so high, many vulnerable women and children are being unnecessarily put at risk.

The weighing up of responsibility for the failure of a marriage cannot be boiled down to a simple mathematical equation. In addition to employing their professional legal knowledge and juridical powers, judges must ensure that evidence is investigated systematically and impartially to clarify which party is responsible.

Ordinary members of the public have been left in a hopeless situation. Constrained by the Civil Code, is it any wonder that many victims are reluctant to file for a divorce?

The law can require three separate hearings during divorce proceedings: It is a drawn-out, nightmarish process. Furthermore, the aforementioned 10 conditions have remained unchanged since 1985.

The system is lacking in empathy for those involved and provides no help to get broken marriages back on track. The way the system is set up, it is actually likely to increase the likelihood of further domestic violence and child abuse. The government must take action to quickly remedy this extremely unsatisfactory state of affairs.

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