Constitutional Court justices have for the past few years been re-examining the issue of marriage, with the matter gaining meaning and significance with each new interpretation.
The past few years have seen a number of landmark constitutional interpretations.
First, Interpretation No. 748 in May 2017 acknowledged the legality of same-sex marriage. Then, in May 2020, Interpretation No. 791 decriminalized adultery.
The justices have now turned their attention to another issue. On Tuesday last week, the Constitutional Court held an oral argument in an open court session, where it discussed Article 1052, Section 2 of the Civil Code: “Either the husband or the wife may petition for a juridical decree of divorce upon the occurrence of any gross event ... that renders it difficult to maintain the marriage, except if either the husband or the wife is responsible for the event, only the other party may petition for the divorce.”
The article is problematic, as it places restrictions on the responsible party, taking away from them the ability to file for divorce.
This issue is noteworthy, because “freedom of marriage” is considered to be a fundamental right guaranteed by the Republic of China (ROC) Constitution, and includes the right to enter a marriage, whom to enter with and the right to exit one.
The section has sparked a debate on whether it conforms with the Constitution.
Those who maintain that the responsible party should also be allowed to file for divorce argue that based on human dignity and what marriage freedom entails, the responsible party’s right to divorce must be equally protected, along with the implementation of supplementary measures, such as easing the other party’s qualifications to alimony.
Furthermore, forcing spouses to stay in a failed marriage might only bring hazards like domestic abuse.
On the other hand, those who want to keep the “status quo” argue that amending the law would only encourage adultery, allowing rich people to do whatever they please while violating ethics and morality.
As there are valid points on each side of the argument, it is not easy to make a clear judgement on the issue.
If the latter stance is taken, few amendments would be made to the article. If the former is preferred, in terms of marriage decree violation, people would stop looking to identify the culprit, or determine who bears more responsibility in a broken marriage.
However, one thing people can expect is a sudden increase in the number of people filing for divorce.
What needs to be considered is that once the bar for divorce is lowered, the only “manacle” restraining the more responsible party would be financial support, such as the distribution of the remainder of the property, compensation for violation of spousal rights and the payment of alimony. There should be decrees in place to ensure that the rights of claims can be effectuated, or else the claims would only end up failing to do any good.
Supplementary measures could be implemented in two ways:
First, qualifications could be eased for the claimant’s rights to remainder of the property as stipulated by Article 1030-3, Section 1 of the Civil Code, which states: “If the husband or the wife, in order to reduce the other’s share of distribution of the remainder [of the property], disposed his or her property acquired in marriage within five years before the termination of the relationship over the statutory regime, this property shall be counted into, and deemed as the remainder of the property acquired in marriage, except the disposition was a proper gift for performing a moral obligation.”
Aside from the existing condition that states “in order to reduce the other’s share of distribution of the remainder [of the property],” other conditions could also be stipulated, such as “expenses made with property acquired in marriage run counter to real life and failing to offer explanations for it.”
Second, the law should put restraints on the transfer of property. Qualifications for provisional seizure or provisional disposition should be eased and security deposits should be required to protect the economically weaker party.
In face of new issues, people might need to wait and see the results of each policy.
Regardless of which side it favors, it is up to the Constitutional Court to make a wise decision.
Lee Yen-feng is a lawyer.
Translated by Rita Wang
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