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  • Interpretation
  • No.372
  • Date
  • 1995/02/24
  • Issue
    • The Supreme Court’s Precedent holds that “although a spouse who has suffered unbearable mistreatment in cohabitation is entitled to sue for divorce, it does not include cases where the other party temporarily loses control and overreacts to the spouse’s misconduct.” Is the said Precedent in conflict with the Constitution, thus being void?
  • Holding
    •        The maintenance of personal dignity and the protection of personal safety are two of the fundamental concepts underlying the constitutional protection of the people’s freedoms and rights. Our society expects that the institution of marriage should be protected by preventing domestic violence and by improving mutual respect between spouses. To determine what constitutes “unbearable mistreatment in cohabitation” as provided in Article 1052, Paragraph 1, Subparagraph 3, of the Civil Code, the courts should, case by case, take into account the degree of the mistreatment suffered by the injured party, the levels of education of both parties, their social status, and so on, and determine whether the continuity of the marriage is threatened. If the degree of mistreatment suffered by the injured party goes beyond the encroachments on personal dignity and security that would be tolerated by most spouses, this should be seen as unbearable mistreatment in cohabitation. The Supreme Court’s Precedent S.T. 4554 (Supreme Court, 1934) held that: “although a spouse who has suffered unbearable mistreatment in cohabitation is entitled to ask for a divorce, this does not include cases where the other party temporarily loses control and overreacts to the spouse’s misconduct.” This Precedent, which does not exclude the operation of the abovementioned fundamental ideas and social expectations if the other party’s overreactions threaten the continuity of the marriage, is not in violation of the Constitution.
  • Reasoning
    •        The maintenance of personal dignity and the protection of personal safety are contained in the Universal Declaration of Human Rights, and are also two of the fundamental concepts underlying our constitutional protection of the people’s freedoms and rights. Article 9, Paragraph 5, of the Amendments to the Constitution, which provides that: “The State shall protect the dignity of women, safeguard their personal safety, eliminate sexual discrimination, and further substantive gender equality,” enshrines the above ideas. In Interpretation No. 365, this Council has held that this constitutional protection shall also be applicable to marital relations and domestic life. The objective of marriage is for a husband and wife to live together. The spouses should strive and cooperate to maintain their mutual satisfaction, security and happiness. Therefore, it is not only a necessity for a stable marriage but also generally expected that a husband and wife should respect each other to improve mutual harmony and to prevent domestic violence. Article 1052, Paragraph 1, Subparagraph 3, of the Civil Code, which provides that a spouse who suffers unbearable mistreatment inflicted by the other party in cohabitation is entitled to resort to the courts for a divorce, is aimed at protecting the personal dignity and safety of both spouses. If the mistreatment becomes so severe that the continuity of the marital relationship seems unlikely, a request for divorce should be approved. To determine so-called “unbearable mistreatment in cohabitation,” the courts should, case by case, take into account the degree of the mistreatment suffered by the injured party, the levels of education of both parties, their social status, and so on, and determine whether the continuity of marriage is threatened. If the degree of mistreatment suffered by the injured party goes beyond the encroachments on personal dignity and security that would be tolerated by most spouses, this should be seen as unbearable mistreatment in cohabitation. 
      
    •        The Supreme Court’s Precedent S.T. 4554 (Supreme Court, 1934) held that: “although a spouse who has suffered unbearable mistreatment in cohabitation is entitled to ask for a divorce, this does not include cases where the other party temporarily loses control and overreacts to the spouse’s misconduct.” The holding said only that the other party temporarily losing control and overreacting to the spouse’s misconduct should not necessarily be seen as inflicting unbearable mistreatment in cohabitation. Accordingly, once education levels, social status and other relevant factors have been taken into account, if the overreactions do not threaten the continuity of the marriage, the request for a divorce based on unbearable mistreatment in cohabitation should not be approved. This precedent does not intend to confer upon the other party powers to punish the party who commits the misconduct. If the degree of mistreatment suffered by the injured party goes beyond the encroachments on personal dignity and security that would be tolerated by most spouses, this should be seen as unbearable mistreatment in cohabitation. Therefore, the Supreme Court’s Precedent S.T. 4554 (Supreme Court, 1934), which does not exclude the application of Article 1052, Paragraph 1, Subparagraph 3, of the Civil Code if the other party’s overreactions become detrimental to the continuity of marriage, is not in violation of the Constitution.
      
    • *Translated by Dr. Tze-Shiou Chien.
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