Note: 
This summary constitutes no part of the Judgment but is prepared by the Department of Clerks for the Constitutional Court only for the readers’ reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph. 
In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.

Headnotes

    The Taiwan Constitutional Court (TCC) upheld the constitutionality of the proviso of Article 1052, Paragraph 2 of the Civil Code and ruled that barring the sole at-fault party from filing a divorce lawsuit on the ground of the occurrence of a gross event that rendered the marriage hard to maintain (passive rule of irretrievable breakdown of marriage) is in accordance with the freedom of marriage under Article 22 of the Constitution (unenumerated rights) in principle. However, it may violate the freedom of marriage under the Constitution if a solely at-faulty spouse is indiscriminately barred from petitioning for a divorce regardless of the duration of the fault and whether it would be draconian to that spouse in certain cases. 

    The TCC requested the competent authority to amend the provision as appropriate within a two-year grace period. If the amendment was past due, courts may adjudicate relevant cases following this Judgment. 

Background Note

    There are three petitioners in this case, one of whom is a judge at the Kaohsiung Juvenile and Family Court and the other two are plaintiffs of dismissed and finalized divorce cases. The judge petitioner lodged seven constitutional reviews for the cases s/he was hearing. The petitioners argued that by restricting the at-fault party's right to petition for a judicial divorce decree, the proviso of Article 1052, Paragraph 2 of the Civil Code contravenes its original ratio legis of introducing divorce on the grounds of a irretrievable breakdown of marriage [破綻主義;はたんしゅぎ; Hatan shugi] in 1985, consequently infringing the people's freedom of marriage. 

    The petitioners' cases were consolidated and later argued on November 15, 2022. The TCC announced this Judgment on March 24, 2023.
 

Summary of the Judgment 

Holding

    Article 1052, Paragraph 2 of the Civil Code stipulates that "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." In principle, the proviso of said article, which barred the solely at-fault party from suing for divorce, did not violate the freedom of marriage under Article 22 of the Constitution. However, the proviso may be draconian in individual cases, because it ripped the solely at-fault party off the opportunity to file for a divorce lawsuit without distinguishing whether the "gross event" had happened or has continued for a period. Within this scope, the article violates the protection for freedom of marriage under the Constitution. The competent authority shall amend the article as appropriate within two years. If the amendment is past due, courts may adjudicate cases following this Judgment. 

Reasoning

1.    Rights pertaining to this constitutional review:

    The dissolution of marriage is an important part of the institution of marriage. The Constitution’s protection towards freedom of marriage not only includes the freedom to marry and maintain one's marriage, but also should include the freedom to dissolve marriage (i.e. when and whether to back out of a marriage). Either spouse's freedom to divorce should be protected by the Constitution even when they did not reach an agreement to divorce. The protection of freedom of marriage is not simply a protection provided by the defensive function of the basic right to personal freedom—it still depends on the State's regulation and design for the institution of marriage, which should provide the people with the opportunity to file for a judicial decree of divorce. For the reason that the legal framework for divorce lawsuits and its statutory designs involve constitutional protection toward the basic rights for marriage, they should be subject to constitutional review. 【31】

    The disputed proviso barred the party at fault from suing for divorce, which constituted a restriction on people's freedom to divorce after entering a marriage. The proviso meets the requirement of the protection of freedom of marriage under Article 22 of the Constitution. Moreover, since the freedom to maintain a marriage and the freedom to divorce both fall under the category of freedom of marriage, there might be a conflict of rights that requires balancing.【32】

2.    In principle, the disputed proviso does not violate the protection of freedom of marriage under Article 22 of the Constitution.

    In addition to the grounds for suing for divorce listed in Article 1052, Paragraph of the Civil Code, and on the premises of the gross event that renders the marriage difficult to maintain, the disputed proviso expressly excludes the party solely at fault for the gross event to sue for divorce. The proviso does not apply to situations where both parties are at fault.【34】

    The legislative purpose of the proviso is to strengthen the no-fault party's self-determination right to maintain or dissolve a marriage in the aforementioned situation. By preventing marital orders from being compromised by arbitrary divorce lawsuits, the disputed proviso may safeguard the legal order of marriage and people's sense of justice (Rechtsgefühl). In cases where the children's best interest should be called into consideration, the disputed proviso also serves the function of protecting the marital family and its social responsibilities. The proviso's purpose is legitimate.【35】

    The current Civil Code allows multiple grounds to petition a judicial decree for divorce. The legislators should have room for legislative discretion in drafting relevant regulations. The State inevitably faces the issue of competing rights (conflicting rights) and the question of which to prioritize in a situation where spouses did not reach an agreement on whether to maintain the marriage or dissolve it. To safeguard the legal order of marriage and the people's sense of justice (Rechtsgefühl), the proviso chose to protect primarily the no-fault party's right to maintain marriage and restrict the solely at-fault party's right to initiate a divorce lawsuit when gross event rendering the marriage difficult to maintain occurs. In principle, the proviso does not violate the Constitution's protection toward the freedom of marriage. 【36】 

3.    In exceptional cases, the disputed proviso might be draconian.

    Marriage is highly personal. The reasons that cause a breakdown of marriage usually accumulate over time, with a variety of contributing factors and degrees of responsibilities. Under the current institution of divorce lawsuits, when an irretrievable breakdown of marriage occurs and one of the spouses is no longer willing to maintain the marriage, what the disputed proviso protects is usually an external formality of the marriage, in which the substance of mutual love and mutual aid is already lost. The disputed proviso, without distinguishing whether the "gross event" had happened or has continued for a period, bars the solely at-fault party from filing divorce lawsuits and practically ripping them off the opportunity to divorce. Said practice might be excessive in individual cases. Within the scope of excessive cases, the proviso may contradict the Constitution's intention to protect freedom of marriage. The competent authority shall amend the article as appropriate within two years. Courts may adjudicate cases following this Judgment if the amendment is past due. As to how long since the occurrence of the "gross event" should be or how long should it have continued, this issue should fall within legislative discretion and not this Judgment's scope of review.【39】