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  • Interpretation
  • No.147
  • Date
  • 1976/12/24
  • Issue
    • Does the husband’s taking a concubine constitute a justifiable reason for his wife to apply for judicial separation?
  • Holding
    •        The act of a husband to take a concubine is in violation of the marital obligation of fidelity. Such act constitutes a legally justifiable reason to release the lawful wife from her marital obligation to cohabit, as provided in the proviso of Article 1001 of the Civil Code. The wife is thus entitled to claim that until the act terminates, she is no longer legally bound by the marital obligation to cohabit. A *justifiable reason* does not have to be one of the grounds for divorce as enumerated in Article 1052 of the Civil Code. The wording of *the wife may make a claim to separate* as cited from this Yuan’s Interpretation Yuan-tsu No.770 actually means: *the wife is no longer legally bound by the marital obligation to cohabit* as provided in the said proviso of Article 1001. This Interpretation reaffirms the Interpretation No.770 has by no means rendered a spousal right to apply to the court for judicial separation.
  • Reasoning
    •        The resolution of the 180th Meeting of the Judicial Yuan Grand Justices Council reads: "When a central or local government agency, in the application of the Constitution, laws or administrative orders, encounters doubts about any Interpretation of the Judicial Yuan and consequently submits a petition for a further Interpretation, this meeting may make a re-interpretation under Article 4 or Article 7 of the Grand Justices Council Adjudication Act." The present case concerns doubts raised by the Supreme Court about this Yuan’s Interpretation Yuan-tze No.770, thus it shall be re-interpreted in accordance with the above resolution.
      
    •        Article 1001 of the Civil Code provides that a husband and wife have a mutual marital obligation to cohabit, unless there are legally justifiable reasons for not doing so. The act of a husband to take a concubine is in violation of the marital obligation of fidelity, which constitutes a justifiable reason to release the lawful wife from her marital obligation to cohabit, as provided in the proviso of Article 1001. The wife is thus entitled to claim that until the act is terminated, she will no longer be legally bound by the marital obligation to cohabit. A *justifiable reason* does not have to be one of the grounds for divorce as enumerated in Article 1052 of the Civil Code. Nevertheless, as the marriage still legally exists, the wife shall fulfill her marital obligation to cohabit with the husband once the *justifiable* reason is removed. The wording of *the wife may make a claim to separate* as cited from this Yuan’s Interpretation Yuan-tze No.770 actually means: *the wife is no longer legally bound by the marital obligation to cohabit* and thus, the Interpretation has by no means rendered a spousal right to apply to the court for judicial separation as may have been provided in foreign laws concerning judicial separation and divorce.
      
    • *Translated by Professor Dr. Amy H.L. SHEE.
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