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2024-01-09

| Divorce | Can Divorce Occur After Many Years of Separation?

The text you provided discusses different grounds for divorce according to certain legal systems. It explains that besides "consensual divorce" (both parties agree and settle the terms amicably), there's another type known as "judicial divorce." In this scenario, if the parties can't agree on the terms of the divorce or if one party is unwilling to divorce, they can petition the court to decide if the case meets the legal grounds for divorce.

 
The legal grounds for divorce mentioned include:
  1. Bigamy: Being married to more than one person at the same time.
  2. Adultery: Voluntary sexual intercourse between a married person and someone who is not their spouse.
  3. Abuse: One spouse inflicts unbearable abuse on the other, making cohabitation impossible.
  4. Abuse of Direct Relatives: Abuse by one spouse towards the direct relatives of the other, or abuse of one spouse by the direct relatives of the other, making cohabitation intolerable.
  5. Malicious Abandonment: One spouse maliciously abandons the other in a continuous state.
  6. Intent to Murder: If one spouse intends to murder the other.
  7. Incurable and Serious Disease: If one spouse suffers from an incurable and serious disease.
  8. Severe and Incurable Mental Illness: If one spouse has a severe and incurable mental illness.
  9. Missing and Presumed Dead for Over Three Years: If one spouse has been missing and presumed dead for more than three years.
  10. Criminal Sentence: If one spouse is convicted of a crime and sentenced to more than six months of definite imprisonment.
  11. Other Serious Reasons: Any other significant reasons that make maintaining the marriage difficult.

 

【Case Background】

Ms. A is distressed and inquiring about her situation. She has been married for many years and has a son. During her pregnancy, she suffered from an illness that caused her immune system to malfunction. Ms. A's husband, who works in film production, often has long working hours and travels frequently for work, leading to him seldom being at home. As a result, Ms. A and her husband have grown apart. One year, her husband suddenly filed for divorce. After mediation, they temporarily agreed to a separation. However, three years later, Ms. A's husband stopped paying maintenance for her and their minor child. Ms. A has now received another notice for a court hearing regarding her husband's petition for divorce. She is anxious and seeking advice on whether the three years of separation can be a sufficient basis for a successful divorce petition.

 

【Court: Dismissed】

According to Article 1052, Paragraph 2 of the Civil Code: "If there are serious reasons other than those mentioned in the preceding paragraph, making it difficult to maintain the marriage, either spouse may request a divorce. However, if the reason is attributable to one of the spouses, only the other spouse may request a divorce." Therefore, the fact of living separately for three years may need to be discussed to determine if it constitutes "malicious abandonment" under Paragraph 1 of Article 1052 or "serious reasons for the difficulty in maintaining the marriage" under Paragraph 2, to file for divorce.

 
"Malicious abandonment" is defined as objectively violating the obligation to cohabit, and subjectively refusing to cohabit. In this case, although the couple is not living together, Ms. A has continuously lived at the residence agreed upon at the time of marriage and has not refused to fulfill the cohabitation obligation. Instead, it is her husband who has refused to cohabit since filing for divorce years ago. Under the provision, the party who is maliciously abandoned has the right to request a divorce from the abandoning spouse. In this case, the abandoning spouse (Ms. A's husband) should not have the right to request a divorce under this provision.
 
Furthermore, to meet the needs of a modern and diverse society, the grounds for judicial divorce are more flexible, with the standard being whether the marriage is irretrievably broken without hope of recovery. Whether a marriage is irretrievably broken should not be based on subjective standards but on objective standards – the "facts" of whether it is difficult to maintain the marriage. If there are serious reasons why the marriage is difficult to maintain, and both spouses are responsible for these reasons, their degree of responsibility should be compared. Only the spouse with lesser responsibility may request a divorce from the spouse with greater responsibility. If both are equally responsible, then both may request a divorce. Therefore, in this case, whether the three-year separation constitutes a serious reason for the difficulty in maintaining the marriage is debatable. However, since the separation was caused by the spouse's request for divorce, it's hard to argue that the separation itself is attributable to the requesting party. Thus, it should be considered that the spouse does not have the right to request a divorce on this ground.
 
The argument and defense presented successfully led the presiding court to dismiss the divorce petition filed by Ms. A's spouse.


Reference：Supreme Court Decision No. 572 of the 85th Year.
 

[繼續閱讀：Divorce | The agreement and procedures for a consensual divorce]


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