Even the Solely At-Fault Spouse May Still Seek Divorce — Taiwan Supreme Court Judgment No. 2256 of 2024
Even the Solely At-Fault Spouse May Still Seek Divorce — Taiwan Supreme Court Judgment No. 2256 of 2024
Divorce rights are no longer absolutely barred by fault
Under Article 1052, Paragraph 2 of the Taiwan Civil Code, where there is a major cause rendering it difficult to maintain a marriage, either spouse may, in principle, petition the court for a judicial divorce. However, if the cause for the breakdown of the marriage is attributable solely to one spouse, the proviso to the same paragraph provides that, in principle, only the other spouse may petition for divorce.Accordingly, in past judicial practice, once the spouse seeking divorce was found to be the “solely at-fault spouse” responsible for the breakdown of the marriage, it was generally difficult for that spouse to obtain a divorce under Article 1052, Paragraph 2 of the Civil Code.
However, following Constitutional Court Judgment No. 4 of 2023, this restriction has been adjusted in light of constitutional protections. In Supreme Court Judgment No. 2256 of 2024, the Supreme Court further applied this principle and explained that even where the spouse seeking divorce is solely responsible for the breakdown of the marriage, the court must still examine whether continuing to restrict that spouse’s freedom to divorce has become “manifestly excessive.” The divorce petition therefore cannot be dismissed automatically merely because the petitioner is the solely at-fault spouse.
Where a marriage has broken down and only one spouse is responsible for such breakdown, and that spouse has no intention of continuing the marriage while the other spouse remains willing to maintain it, the court should consider the impact of divorce on the other spouse, the parties’ children, and other relevant circumstances. If granting a divorce would be contrary to morality, justice, and prevailing societal values, the freedom of marriage should, in principle, be accorded to the spouse who seeks to maintain the marriage.
However, the marriage that the legal system seeks to protect should be a harmonious marital relationship. Where maintaining a marriage merely preserves its outward form, without the substance of mutual affection, support, or interdependence, such protection can hardly be regarded as appropriate.
Accordingly, the proviso to Article 1052, Paragraph 2 of the Civil Code, insofar as it categorically prohibits the solely at-fault spouse from petitioning for a judicial divorce, without considering whether a reasonable period of time has elapsed since the occurrence of the serious cause rendering the marriage difficult to maintain, or whether such cause has persisted for a considerable period of time, may result in a manifestly excessive burden in individual cases. To this extent, Constitutional Court Judgment No. 4 of 2023 has declared the provision inconsistent with the constitutional protection of freedom of marriage and directed the relevant authorities to appropriately amend the law in accordance with the reasoning of that judgment within two years from the date of its pronouncement, March 24, 2023.
In cases of this kind, the court should first consider whether granting a divorce would be contrary to morality, justice, and prevailing societal values. If so, the court must further examine whether restricting the solely at-fault spouse from seeking divorce would be manifestly excessive. This requires the court to ascertain the intention of either or both spouses regarding the continuation of the marriage and to consider whether the marriage exists merely in outward form, without the substantive elements of mutual affection, support, or interdependence. Where there are minor children, the court should also consider whether their prolonged exposure to such a marital relationship may instead be detrimental to their healthy physical and psychological development. The court must further consider whether a reasonable period has elapsed since the serious cause rendering the marriage difficult to maintain arose, or whether such cause has persisted for a considerable period of time.
These considerations are necessary to determine whether denying the divorce would effectively deprive the solely at-fault spouse of the freedom to divorce and thereby impose a manifestly excessive restriction upon that spouse. If the restriction is manifestly excessive, the court may not deny the petition for divorce on that basis.
The court below failed to conduct a sufficiently detailed examination of these matters. Instead, it merely relied on the fact that the appellant was the spouse at fault and had not provided substantive compensation for the harm inflicted upon the appellee, and on that basis concluded that restricting the appellant’s right to seek divorce was not manifestly excessive. Such a conclusion can hardly be regarded as proper.
I. Facts
The parties married in 1980 and had three children, all of whom are now adults. The wife alleged that the husband had subjected her to domestic violence over a prolonged period. In 2016, she left the marital residence in Taichung and moved to Taipei. The husband subsequently changed the locks to the marital residence and also had an extramarital relationship from which a child was born. The parties had lived separately since 2016.
The husband later petitioned for divorce pursuant to Article 1052, Paragraph 2 of the Civil Code. At the second instance, the Taichung Branch Court of the Taiwan High Court found that the parties’ separation and deterioration of their marital relationship were primarily caused by the husband’s own conduct. Accordingly, despite the deterioration of the marriage, the husband was considered the solely at-fault spouse and was not entitled to seek divorce.
After the case was appealed to the third instance, however, the Supreme Court vacated the portion of the judgment concerning the divorce claim and remanded the case to the Taichung Branch Court of the Taiwan High Court for further proceedings.
II. Issue
The principal issue in this case was:
- Where a marriage has clearly broken down over a prolonged period, but the spouse seeking divorce is also the spouse solely responsible for that breakdown, may the court still rely on the proviso to Article 1052, Paragraph 2 of the Civil Code to directly deny that spouse the right to seek divorce?
- More specifically, following Constitutional Court Judgment No. 4 of 2023, can the restriction on divorce by a solely at-fault spouse continue to apply categorically, regardless of how long the marriage has remained broken or the actual state of the marital relationship?
III. The Supreme Court’s Reasoning
The Supreme Court first distinguished between two separate questions: whether the marriage has in fact broken down, and which spouse is responsible for that breakdown.
A prolonged separation, whether resulting from an agreement between the spouses or caused unilaterally by one spouse, may serve as evidence that the marriage has suffered a serious breakdown. Accordingly, the fact that one spouse caused the separation does not, by itself, negate the objective reality that the marriage may already have broken down.
More importantly, referring to Constitutional Court Judgment No. 4 of 2023, the Supreme Court held that although the proviso to Article 1052, Paragraph 2 of the Civil Code generally restricts a solely at-fault spouse from seeking divorce, categorically prohibiting such a spouse from obtaining a divorce regardless of how long the marital breakdown has continued may become manifestly excessive in an individual case. The Constitutional Court had already held that, to this extent, such a restriction is inconsistent with the constitutional protection of freedom of marriage.
The court must therefore further examine factors including the spouses’ intentions regarding continuation of the marriage, whether the marriage exists only as an external legal form, whether there remains any substantive relationship of mutual affection, support, or interdependence, and how long the serious breakdown of the marriage has continued.
If, after considering these circumstances, continuing to deny the divorce would effectively deprive the solely at-fault spouse of the freedom to divorce and would amount to a manifestly excessive restriction, the divorce petition cannot be rejected solely because that spouse bears sole responsibility for the marital breakdown.
IV. Analysis
The significance of this judgment lies in its further implementation of Constitutional Court Judgment No. 4 of 2023 in interpreting the proviso to Article 1052, Paragraph 2 of the Civil Code.
In past judicial practice, once the spouse seeking divorce was found to be solely responsible for the breakdown of the marriage, courts would generally rely on the proviso to Article 1052, Paragraph 2 to dismiss the divorce claim. This was particularly common where the solely at-fault spouse had committed domestic violence, engaged in an extramarital affair, or otherwise caused the breakdown of the marriage.
Following the Constitutional Court’s judgment, however, being “solely at fault” can no longer automatically mean being “forever barred from divorce.”
This Supreme Court judgment illustrates that where spouses have lived separately for a prolonged period and the marriage has effectively ceased to exist in substance, the court cannot simply require the parties to remain legally married indefinitely because one spouse bears sole responsibility for the breakdown. The court must further consider whether continuing such a restriction remains justified.
Accordingly, following the Constitutional Court judgment and this Supreme Court decision, judicial review of divorce petitions brought by solely at-fault spouses has moved away from a relatively absolute restriction toward a more case-specific assessment. The relevant question is no longer limited to “Who caused the breakdown of the marriage?” It also includes the question: “How much substantive marital relationship remains that the law should continue to compel the parties to maintain?”
V. Lawyer’s Recommendations
In judicial divorce proceedings, even where the spouse seeking divorce bears primary or even sole responsibility for the breakdown of the marriage, it should no longer be assumed that the spouse is necessarily barred from obtaining a divorce.
In particular, where the spouses have lived separately for a prolonged period, no longer share a common life, and their marriage exists largely as a legal formality, the parties should carefully present evidence concerning the duration of separation, their interactions during that period, the possibility of maintaining or restoring the marriage, the circumstances of any minor children, and the length of time for which the marital breakdown has continued.
Conversely, a spouse who wishes to maintain the marriage should not rely solely on the other spouse’s extramarital affair, domestic violence, or other attributable conduct as a defense. It may also be necessary to explain why the marriage continues to possess substantive interests worthy of legal protection and why granting a divorce would be inappropriate under the particular circumstances.
Supreme Court Judgment No. 2256 of 2024 demonstrates that the right of a solely at-fault spouse to seek divorce is no longer subject to an unconditional and indefinite prohibition. In future judicial divorce proceedings, the duration of the marital breakdown and whether the marriage continues to possess substantive content are likely to become increasingly important considerations.
Likewise, from a litigation strategy perspective, lawyers and parties should no longer mechanically conclude that a divorce action will necessarily be dismissed simply because the petitioner is at fault. A more detailed and complete presentation of the facts—showing whether the marriage should continue, whether there remains any realistic possibility of maintaining it, and what substantive marital relationship, if any, still exists—will become central to the court’s determination.
Legal Disclaimer
This article is provided solely for general informational purposes and is intended to help readers understand basic legal concepts under Taiwanese law. It does not constitute legal advice, legal opinions regarding any specific case, or create an attorney-client relationship between the reader and the author or this law firm.Every legal matter is unique. The applicable law, available evidence, procedural posture, and factual circumstances may differ significantly from one case to another. Even where similar legal issues arise, the appropriate legal analysis and strategy may vary depending on the specific facts. Accordingly, if you are involved in a legal dispute or require legal advice regarding a particular matter, you should consult a qualified attorney to obtain advice tailored to your individual circumstances.In addition, statutes, regulations, judicial decisions, and legal practice may change over time. This article reflects Taiwanese law and prevailing legal practice as of the date of publication (or the most recent update). Subsequent legislative amendments or developments in judicial practice may affect the accuracy or continuing applicability of the information contained herein. Readers are therefore encouraged to consult the latest legal authorities or seek professional legal advice before relying on this article.
