Is Divorce Difficult? How to Seek Divorce When Separated?

Part One: How Divorce is Determined in Judicial Practice

In legal consultations, there are often inquiries regarding divorce after separation:

Attorney Chen, my spouse and I have been separated for many years without any contact. Can I file for divorce in this situation?

Legal provisions can sometimes be challenging to understand, and individuals often find themselves confused even after searching online for divorce laws, still not clear whether divorce can be pursued or how to proceed. What is the difference between Paragraph 1 and Paragraph 2 of Article 1052 in the Civil Code? Which one should I use for filing, and which one is more advantageous for me?

To make it simple, let me explain it in plain language: Paragraph 1 of Article 1052 in the Civil Code enumerates more severe grounds for divorce, allowing the other party to request a divorce when such circumstances arise.

Paragraph 1 of Article 1052 in the Civil Code states, " Where either the husband or the wife meets one of the following conditions, the other party may petition the court for a juridical decree of divorce:(1) Where he or she has committed bigamy;(2) Where he or she has consensual sexual intercourse with another person;(3) Where he or she abuses the other party as to render common living intolerable;(4) Where he or she abuses the lineal relative of the other party, or his or her lineal relative abuses the other party as to render common living intolerable;(5) Where the other party has deserted him or her in bad faith and such desertion still continues;(6) Where he or she is intent on murdering the other party;(7) Where he or she has a loathsome disease which is incurable;(8) Where he or she has a serious mental disease which is incurable;(9) Where it has been uncertain for over three years whether he or she is alive or dead; or(10) Where he or she has been sentenced to more than six months imprisonment for an intentional crime.

If none of the above circumstances apply, it's necessary to consider whether there are other factors making the marriage "difficult to maintain."

Article 1052, Paragraph 2 of the Civil Code states, " Either the husband or the wife may petition for a juridical decree of divorce upon the occurrence of any gross event other than that set forth in the preceding paragraph 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."

Based on my experience handling divorce cases, many situations that warrant a divorce do not necessarily involve one party committing extremely grave actions (in other words, situations that fit the criteria for the severe circumstances listed above). Instead, it might be due to significant differences in values between the spouses, resulting in daily conflicts and accumulated frustration, leading to separation. In such cases, I often advise clients to invoke Paragraph 2 of Article 1052 in the Civil Code, asserting the presence of other major reasons making the marriage difficult to maintain.

Part Two: Can the Guilty Spouse Request Divorce?

Attorney Chen, I heard that the guilty party cannot file for divorce. Is that true? 

I've encountered similar questions, and this belief requires clarification. Let me explain.

Please note that in the aforementioned Paragraph 2 of Article 1052, there is an additional provision: " except if either the husband or the wife is responsible for the event, only the other party may petition for the divorce.” In short, if a marriage is difficult to sustain, the determination of responsibility for causing the situation must be considered. Only the party not holding responsible can request a divorce; the responsible party cannot.

While it might seem that the guilty party cannot file for divorce, the breakdown of a marriage is often not solely attributable to the actions of just one individual. Both parties may have contributed to the situation. In this case, courts typically assess the degrees of fault on both sides, allowing only the less responsible party to seek divorce, while the more responsible party cannot.

In a 2006 Supreme Court ruling, it was clarified that if a marriage is rendered difficult to maintain due to significant reasons, and both parties share responsibility for these reasons, the court will evaluate the degree of fault for each party. Only the party with less severe fault is permitted to request a divorce.

Take a simple example. A couple often argued because of incompatible values. The wife eventually left home due to being unable to endure it any longer, leading to a separation between both parties. If the wife uses the separation as grounds to request a divorce, traditionally, since the wife left home, it would be conventionally deemed that she is the party responsible (or with the heavier responsibility) for the situation. Therefore, the wife wouldn't be able to request a divorce, and only the husband, who is deemed as not responsible (or with lighter responsibility), would be eligible to seek a divorce.

Even though I was the one who left home initially, it's been over a decade without any contact. Can I still not initiate a divorce? 

After going through the analysis above, some might raise this question. It's also a scenario that has occurred in past judicial practices. It's the situation where, even after years of separation, a decade or even several decades, with no interaction between the parties, the marriage has practically ceased to exist. If there's still a rigid restriction that only the party not responsible (or with lighter responsibility) can request a divorce, despite the marriage being nothing more than an empty shell, is it truly appropriate to deny the other party's right to initiate a divorce? This long-debated issue has given rise to a highly anticipated constitutional ruling in the field of family law this year (2023) - Constitutional Interpretation No. 4 of 2023. 

Part Three: Constitutional Interpretation No. 4 of 2023

Constitutional Interpretation No. 4 of 2023 is a recent landmark constitutional ruling issued in March of this year. In essence, the ruling states that in cases where significant grounds for divorce arise, if a considerable amount of time has passed since the occurrence of these grounds, or if the grounds have persisted for a substantial duration, the traditional practice of denying the solely responsible spouse the right to request divorce is no longer suitable. This practice could be overly stringent and deprive the spouse of the opportunity to seek divorce when the marriage is on the brink of collapse. Therefore, the ruling argues for a more balanced approach, asserting that even the spouse at fault should still have the opportunity to request divorce.

Constitutional Interpretation No. 4 of the Year 112 is a ruling that questions the provision which prohibits the spouse solely responsible for significant grounds rendering the marriage unsustainable from requesting divorce, after a substantial period of time has passed since the occurrence of the said grounds or if the grounds have persisted for a considerable period. This provision effectively forces the responsible spouse to continue facing a marriage that has shown irreparable fractures making its sustainability difficult or has deteriorated into an irreconcilable state, thus denying them the opportunity to seek divorce and potentially leading to circumstances that are evidently overly stringent. In cases where such evidently stringent circumstances are present, the limitations on divorce requests imposed on the responsible spouse clash with the freedom of the blameless spouse to maintain the marriage, as protected by the Constitution. Balancing these conflicting interests becomes necessary. Therefore, it can be argued that the restriction on divorce requests by the spouse solely responsible for the situation, within the scope of evidently stringent circumstances as described above, can hardly be deemed in line with the spirit of Article 22 of the Constitution, which safeguards the freedom of marriage.

Has this ruling already begun to influence judicial practice? Absolutely yes.

Based on recent court observations, judges have been mentioning this ruling during proceedings, particularly in cases where spouses have been separated for a significant period with no contact. The ruling's implications are explained to the parties involved, emphasizing that being the solely responsible party no longer guarantees immunity from divorce.

Furthermore, if both parties have been separated for an extended period without any efforts to restore their relationship or improve their interactions, the court may consider that both parties share responsibility, and thus, the restriction on the solely responsible spouse requesting a divorce might not apply. In other words, it's not solely about who initiated the separation or whether it was voluntary; the right to request divorce is not automatically denied to the responsible party.

Therefore, when faced with mutual accusations of each party being the one who left home first, judicial practice takes into consideration that regardless of the sequence of leaving home, the outcome of long-term separation has already been brought about. Neither party has taken proactive measures to salvage the marriage's breakdown. Consequently, delving into the question of who left home first might not necessarily be required. Both parties are responsible for the inability to sustain the marriage. Therefore, both parties possess the right to request a divorce.

Part Four: Seeking or Opposing Divorce - Can It Be Successful?

The legal analysis provided above is based on my years of experience and offers a general overview. However, please note that legal cases are unique, and each person's life story is distinct. The same conditions can yield different results depending on the circumstances.

Therefore, whether you are seeking divorce or opposing it, it's recommended to consult with an attorney to fully understand your rights, as well as your strengths and weaknesses in the case. An attorney can provide individualized analysis for your situation and ensure your interests are protected.

If you have divorce-related questions, feel free to contact Attorney Ching-Yi, Chen through the LINE official account, or by scanning the QR code below. Attorney Chen can provide case-specific analysis and safeguard your interests.