Op-Ed | Where Are the Supporting Measures for the 2,500 Judicial Divorce Cases Each Year? How to Protect Economically Vulnerable Spouses?

In March 2023, the Constitutional Court rendered TCC Judgment 112-Hsien-Pan-4 (2023) (the "Case on Restriction of Judicial Divorce Petition by the Sole At-Fault Spouse"), relaxing the restrictions on the sole at-fault spouse applying for a judicial divorce and mandating that legislative amendments be completed within two years. Although the Executive Yuan only proposed a draft bill in February of this year—and it has yet to enter substantive review in the Legislative Yuan, with most legislators' drafts also stalled or stuck at the first reading—the amendment should have been completed by March of this year.

What Should Supporting Measures for "Irretrievable Breakdown Divorce" Include?

Taiwan sees approximately 2,500 judicial divorce cases each year. With legislative amendments yet to be completed, current family court judges can only adjudicate based on the intent of TCC Judgment 112-Hsien-Pan-4 (2023), directly applying it to individual cases. For example, in the original trial(Taiwan Taipei District Court Civil Judgment, Case No. 305, Marriage, 2022), the court dismissed the petition for divorce, reasoning that the defendant had previously expressed a willingness to maintain the marriage, and that if both parties could rationally communicate and resolve their differences, there remained a possibility of pursuing a happy and fulfilling marital life; thus, the plaintiff's assertion that there were grave grounds making it difficult to maintain the marriage was without merit.

However, the appellate court (Taiwan High Court Civil Judgment, Case No. 151, Family Appeal, 2023) cited TCC Judgment 112-Hsien-Pan-4 (2023), holding that the parties had no consensus on life planning, children's education, and other marital arrangements, and that their stalemate indicated the harmonious marital relationship desired by the legislator had already been lost, leaving no practical necessity to compel its maintenance. The court ultimately granted the divorce.

Similarly, in Supreme Court Civil Judgment, Case No. 1366, Supreme Court Appeal, 2022, the case was remanded by the Supreme Court to investigate the fault of both parties. The remand court (Taiwan High Court Taichung Branch Court Civil Judgment, Case No. 4, First Retrial Family Appeal, 2022) also directly invoked the intent of TCC Judgment 112-Hsien-Pan-4 (2023), holding that when the plaintiff is not the sole party responsible for the grave breakdown of the marriage, and the emotional foundation of the marital life has already ruptured to the extent that its restoration is objectively unlikely, it can be recognized that there are grave grounds making it difficult to maintain the marriage, thereby granting the divorce.

Nevertheless, leaving the judiciary to independently apply the interpretive intent results in a divorce legal system lacking comprehensive supporting measures. During this legislative vacuum, there is only "freedom to divorce," while the vulnerable party, after being divorced, is practically plunged into an even more disadvantaged living predicament.

What the Grand Justices emphasized in the judgment—that systems such as the distribution of surplus property, child support ratios, and damages should be reviewed concurrently to genuinely protect vulnerable spouses and children—is currently entirely absent.

Furthermore, although the draft proposed by the Executive Yuan in February relaxes the conditions for claiming alimony by taking "diminished employability or opportunities" into consideration, it still stipulates that remarriage extinguishes the claim for alimony, which is inconsistent with the nature of "marital compensation." The Judicial Reform Foundation proposes that alimony should be categorized into "subsistence-difficulty type" and "opportunity-cost type," where the former is an extension of child support, while the latter is characterized as compensation granted at the time of divorce for the duration of the marital relationship.

Since remarriage only affects whether there are other persons under a duty of support, only the right to claim alimony of the "subsistence-difficulty type" should be extinguished upon remarriage. This version has already been adopted in a proposal by a legislator and should be fully discussed during subsequent review processes.

This Is Not Merely a Matter of "Divorce Property Disputes," But Must Meet International Convention Requirements for Post-Divorce Economic Equality

Beyond the alimony amendments covered in the current Executive Yuan draft, the issue of "inclusion of occupational pensions in economic claims for surplus property distribution," which the Executive Yuan draft failed to touch upon, also has a significant impact on the advancement of gender equality. Women's groups have long appealed that because women often interrupt their careers due to caregiving responsibilities, resulting in unequal pension accumulation, failing to include pensions in distribution will deepen the gender gap.

General Recommendation No. 29 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) reveals: "To achieve formal and substantive equality in property rights upon the dissolution of marriage, States parties should be strongly encouraged to provide for... the calculation of the present value of other entitlements resulting from contributions made during the marriage towards deferred compensation, pensions or life insurance policies, as part of divisible marital property." Under this principle, in the concluding observations and recommendations of the international review of Taiwan's 4th National Report on CEDAW published in 2022, international review committee members also explicitly recommended this legislative direction.

The irretrievable breakdown divorce reform marks Taiwan's matrimonial system moving toward liberalization, but freedom must be accompanied by protection. If the Legislative Yuan and the executive departments continue to drag their feet, it is not only unconstitutional but also leaves the economically vulnerable party in a state lacking adequate supporting measures.

In addition, next year will see the review of the fourth national reports on the two Covenants. The review of Article 23, Paragraph 4 of the International Covenant on Civil and Political Rights (ICCPR)—"States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children"—will also take place, with topics including the divorce system and the exercise of post-divorce parental rights.

We advocate that the Legislative Yuan's new session should immediately schedule the review of the Executive Yuan's version and various legislators' versions, hold public hearings, incorporate the suggestions and experiences of frontline civil society organizations, and reference the relevant intent of the conventions to improve the divorce system, balance the rights and interests of both parties, and truly realize marital equality and judicial reform.

*The full text was published on September 15, 2025 in ETtoday