What is the Executive Yuan's Amendment to the "Chapter on Family of the Civil Code" in Response to Constitutional Interpretation No. 4 of 2023, and What is the Judicial Reform Foundation's Perspective?

On February 20, 2025, the Executive Yuan passed the partial amendment draft to the "Chapter on Family of the Civil Code" proposed by the Ministry of Justice (hereinafter the "Amendment Draft") in response to Judicial Yuan Constitutional Interpretation No. 4 of 2023. The Amendment Draft makes extensive revisions to the provisions on judicial divorce and alimony.

Although the Judicial Reform Foundation Gender Working Group was not yet established when Judicial Yuan Constitutional Interpretation No. 4 of 2023 was rendered, our pro bono lawyers, driven by a concern for the right to equality in post-divorce life under CEDAW, actively consulted the Awakening Foundation (hereinafter the "Awakening") and lawyers handling numerous family law cases after the draft was made public. On March 3, 2025, we proposed our own version of legislative recommendations, and we continue internal discussions to propose an updated version. In addition to reviewing the reflections behind the draft, this article aims to present the various challenges the draft may face in actual operation.

Article 1052, Paragraph 1, Subparagraph 10 of the Civil Code: How Strict Should the Threshold Be to Divorce a Convicted Person?

In the current Amendment Draft, regarding the grounds for divorce under Article 1052 of the Civil Code, original Subparagraph 10 of Paragraph 1—which provided that a divorce suit may be brought if a spouse is "sentenced to a determinate imprisonment of over six months with a final judgment"—has been extended to require that "the defendant must be sentenced to a determinate imprisonment of two years or more with a final judgment" before the plaintiff can file for divorce on this ground. The reason for the amendment suggests that the original divorce threshold was "too low."

However, upon first glance at this provision, many of the lawyers we interviewed were somewhat confused. While this legislative revision aims, in response to Judicial Yuan Constitutional Interpretation No. 4 of 2023, to reduce situations where "divorce remains impossible even though the marriage has broken down irremediably," this particular provision unexpectedly makes it harder for those seeking a divorce to do so.

What does this look like in actual scenarios? Among the lawyers we interviewed, some raised questions: many criminal acts do not carry prison sentences of two years or more, yet such criminal acts not only severely impact marital harmony and the well-being of shared life, but may even endanger the safety of children. For example, in Taipei District Court 113th Year Chu-Yi-Tzu Case No. 1, a case concerning the Child and Youth Sexual Exploitation Prevention Act, the defendant possessed sexual images of a total of 35 children or youths, and the total number of files containing sexual images of children or youths held by the defendant was 2,259. The court of first instance sentenced the defendant to 8 months of imprisonment. Under the provisions of the Amendment Draft, the defendant's spouse would be unable to file for divorce on this ground.

As another example, even if one spouse is a repeat offender sentenced to 7 months in prison for using heroin (crimes involving Category 1 and Category 2 narcotics typically carry sentences ranging from 2 months to 1 year), the other spouse still cannot request a divorce. Yet from the cases above, it is not difficult to imagine the massive shock it would bring to the entire family, the marital relationship, and underage children if one's pillow-talk partner were involved in sex crimes or drug use, potentially even endangering young children. Is such a marital breakdown not enough?

The current legislative reasoning does not seem to provide sufficient justification; therefore, the draft proposed by our foundation recommends maintaining the original provisions.

Article 1052, Paragraph 2 of the Civil Code: How Should "Separation" Be Defined in the Newly Added Separation Clause for Divorce?

Another important part of the Amendment Draft is the provision on major grounds for divorce under Paragraph 2 of Article 1052 of the Civil Code. In accordance with the intent of Judicial Yuan Constitutional Interpretation No. 4 of 2023, the draft deletes the restriction that the requesting party must be without fault, and adds a "separation clause"—where spouses have accumulated a total separation period of three years within five years, either party may petition for divorce.

The legislative reasoning of the draft considers the addition of the "separation clause" as a means to describe and objectify "the fact of marital breakdown between both parties." In terms of direction, our foundation has not proposed a counter-proposal to this provision, and we can understand that in certain cases, the "separation clause" allows both parties to bring a marriage to an end through a clear rule.

However, in the process of interviewing many family law lawyers, we still learned of certain concerns that warrant ongoing observation of practical conditions in the future:

First, the ultimate question is: what constitutes "separation"? Especially when focusing on the demographic most vulnerable to post-divorce economic inequality, the disadvantaged party actually has less economic capacity to live separately (i.e., the ability to afford the living costs of "another residence"). Interviewed lawyers have encountered situations where a disadvantaged party, lacking stable income to rent a home, could only continue staying under the same roof (albeit in different rooms), or even if they moved out of the shared residence, still needed to return home to do chores and take care of the children. Do such circumstances count as separation? How will practice define this broadly or strictly? Furthermore, many judgments from family courts involve minors and are not made public, making it difficult for outsiders to study the accumulated judicial standards in practice. In this regard, our foundation suggests that the Legislative Yuan should list the definition and standards of "separation" in the legislative reasoning to ensure clarity, provide a reference for family court judges, and conduct regular research and reviews after implementation.

Additionally, many interviewed family law lawyers are deeply concerned that under Article 1030-4 of the Civil Code, the benchmark date for the claim for distribution of surplus property is the date the divorce suit is filed. Will the "long-process divorce" pointed to by the "separation clause" give the economically stronger party in high-conflict property divorce disputes "more time to prepare to dissipate assets" to avoid having to distribute a high amount of surplus property?

Family law lawyers have frequently handled cases where the economically stronger party has an extramarital affair, moves out of the residence, and files a divorce suit, using economic sanctions to force the disadvantaged party into a divorce. If the economically disadvantaged party is forced into separation and forced into divorce, yet finds it difficult after the divorce to claim the fruits of their contributions during the marriage, will the introduction of a separation system leave the economically vulnerable party in marriage in an even more disadvantageous position?

This issue is the most difficult question in divorce cases involving property distribution. During the interviews, one lawyer even suggested that we should boldly and radically adopt a joint property regime for marriage, requiring both parties' consent for every property disposition during the subsistence of the marriage, in order to truly protect the economically disadvantaged party. Moreover, such a bold and radical shift could force Taiwan's marital and family system to develop possibilities such as a partnership system, rather than forcing everyone to "rigidly enter the marital institution."

Returning to our foundation's internal discussions, everyone strongly hoped to find more solutions on "how to prevent asset dissipation," but answers were not easily found. Therefore, in the current civil version of the draft, the wording regarding the "separation clause" remains identical to the official version, leaving us to continue observing practical trends in the future.

Article 1057 of the Civil Code: Is It Appropriate That Alimony Cannot Be Claimed Due to Remarriage?

Finally, in this Amendment Draft, the claim for alimony under Article 1057 of the Civil Code is broadened from the original prerequisite requirement that it could only be claimed "due to a judicial divorce" to allowing a claim whenever the requesting party "falls into financial hardship caused by the divorce." At the same time, the draft adds that alimony may also be claimed if the requesting party experiences "diminished employment capacity or reduced employment opportunities at the time of divorce." The most common scenario is a full-time mother dedicating all her time and energy to caring for the family, only to find herself missing the golden window for returning to the workforce after a mid-life divorce, resulting in post-divorce difficulties in securing employment or receiving compensation inferior to female peers in the workforce.

The Awakening Foundation's report, "The Alimony Legal System in Urgent Need of Reform," points out that the current Civil Code alimony system was formulated in 1931. The historical context at the time imbued this system with strong gender-division-of-labor presumptions, where men were viewed as bearing economic responsibilities and women as bearing domestic care responsibilities, often lacking economic independence. Therefore, current regulations identify whether the economically disadvantaged party in a marriage (mostly women) falls into financial hardship after divorce, using legal design to extend the support obligations of the economically advantaged party (mostly men) toward the divorced spouse. However, women's labor force participation in modern society has significantly increased. According to statistics on labor force participation from the Executive Yuan's Department of Gender Equality "Important Gender Statistics Database," the labor participation rate for women aged 25 to 44 reached 85.86% in 2024. Consequently, Awakening pointed out long ago that such a legal design no longer aligns with the times, and has long advocated transforming the nature of alimony from an "extension of support obligations" into "marital compensation." Even if the vulnerable spouse does not fall into financial hardship due to divorce, the road back to the job market remains long and arduous. This allows women's choices under "labor of love" to become an economic risk and division-of-labor result jointly borne by both parties in the marital relationship.

However, within this alimony reform, a particularly controversial point is whether such alimony can still be claimed after the claimant remarries.

At the press conference releasing the government draft, Deputy Minister of Justice Huang Shih-chieh explained that the extinguishment of the right to claim alimony upon remarriage in the current draft primarily references Swiss and German legislation, aiming to simplify relationships after divorce and adopt a clean-break principle.

Nevertheless, criticisms abound that this rule may penalize those who remarry. Chen Ling-yi, a board member of the Awakening Foundation, emphasized in a report that remarriage has no bearing on diminished work capacity. For example, assuming a managerial worker leaves the workforce for marriage and child-rearing and re-enters employment after divorce, their job rank may not necessarily be as high as before, and their work capacity will not stop diminishing simply because of remarriage. In other words, in the future when a spouse claims alimony due to diminished work capacity, remarriage should not be listed as a condition determining whether alimony can continue to be received.

However, examining closely the two scenarios of "falling into financial hardship caused by divorce" and "diminished employment capacity or reduced employment opportunities at the time of divorce," our foundation concluded after discussion that these two types of claims may not be treated identically. The former involves assistance for "financial hardship," and the resulting alimony obligation closely resembles a support obligation, which is quite reasonable. Aligning it with the remarriage requirement under the characterization of a support obligation is indeed more similar to foreign legislative examples. However, the latter is actually a form of compensation for "opportunity costs," and it is difficult to rationally explain it through the lens of a support obligation.

Therefore, in the legislative recommendations for Article 1057-3 of the Civil Code proposed by our foundation, the two are separated: the right to claim alimony is extinguished upon remarriage only for parties in the "financial-hardship-caused" category (although our foundation is also concerned that extinguishing alimony claims entirely for those in the "financial-hardship" category might lead to overly harsh outcomes, and thus hopes to discuss whether a discretionary reduction proviso can be designed). Conversely, the "opportunity-cost-compensation" category—"diminished employment capacity or reduced employment opportunities at the time of divorce"—is not affected by remarriage. Our foundation hopes to offer this version to find an alimony legal system that is acceptable to everyone.

Constitutional Interpretation No. 4 of 2023 was announced on March 24, 2023. The two-year legislative amendment deadline given to the Legislative Yuan by the constitutional judgment has now passed, and our foundation will continue to follow up and monitor the situation.

Other References

Awakening Foundation Alimony Quick Guide