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Divorce
Grounds for judicial divorce
Grounds for judicial divorce
- Article 840 of the Civil Act provides for the following 6 grounds for judicial divorce:
The other spouse has committed an unfaithful act
- Definition of an unfaithful act
· A spouse’s unfaithful act refers to any act by a spouse’s own free will after marriage that fails to be faithful to a spouse’s obligation of fidelity and chastity and is a broader concept than adultery, which presupposes sexual relations (Supreme Court Judgment 92Meu68 announced on November 10, 1992). The unfaithfulness of an act is evaluated on a specific case-by-case basis based on the degree and circumstances.
- Unfaithful acts in judicial precedent
· Acts not ruled to be unfaithful: Supreme Court Judgment 91Meu85,92 announced on September 13, 1991; Supreme Court Judgment 89Meu1115 announced on July 24, 1990, Supreme Court Judgment 86Meu8 announced on June 10, 1986
- Deadline to bring action
· A spouse may not file for divorce on the grounds of the other spouse’s unfaithful act if 6 months have elapsed since the date the other spouse’s unfaithful act was known or 2 years since the unfaithful act took place. A spouse who consented in advance to the other spouse’s unfaithful act or forgave it after the fact is also barred from filing for divorce (Article 841 of the Civil Act).
※ Decision of unconstitutionality on the crime of adultery
On February 26, 2015, the Constitutional Court decided the crime of adultery in Article 241 of the Criminal Act is an unconstitutional statute, which lost effect retroactively starting on the day after October 30, 2008, when the Constitutional Court had earlier decided that Article 241 of the Criminal Act was constitutional.
The other spouse maliciously deserted the spouse
- Definition of malicious desertion
· Malicious desertion by a spouse means that the spouse has failed without just cause to perform the spousal obligations of cohabitation, support, and aid.
- Malicious desertion in judicial precedent
The spouse has been extremely maltreated by the other spouse or the other spouse’s lineal ascendant (parents-in-law, etc.)
- Definition of extreme maltreatment
· Extreme maltreatment by a spouse or the spouse’s lineal ascendant means assault, abuse, or insults from the spouse or lineal ascendant to the extent it would be cruel to compel the continuation of the marriage relationship (Supreme Court Judgment 2003Meu1890 announced on February 27, 2004).
- Extreme maltreatment in judicial precedent
The spouse’s lineal ascendant has been extremely maltreated by the other spouse
- Definition of extreme maltreatment
· Extreme maltreatment of a spouse’s own lineal ascendant means the lineal ascendant being subjected to violence, abuse, or insult to the extent it is painful to continue the married relationship (Supreme Court Judgment 86Meu14 announced on May 27, 1986).
- Extreme maltreatment in judicial precedent
· Acts ruled to be extreme maltreatment: Supreme Court Judgment 86Meu14 announced on May 27, 1986; Supreme Court Judgment 68Meu29 announced on March 25, 1969
· Acts not ruled to be extreme maltreatment: Supreme Court Judgment 85Meu37 announced on February 11, 1986; Supreme Court Judgment 84Meu49 announced on August 21, 1984
It is unknown for at least 3 years whether the other spouse is living or deceased.
- Definition of being unknown whether living or deceased
· A spouses ’unknown living or deceased status means the state of being unable to prove the spouse’s survival at all persisted for at least 3 years up to the point divorce is sought.
- Distinction from the declaration of disappearance
· A divorce because of the spouse’s survival status being unknown has nothing to do with the dissolution of marriage from a declaration of disappearance (Article 27 of the Civil Act). That is, if a marriage is dissolved from a declaration of disappearance, the prior marriage is resurrected by a cancelation of the declaration of disappearance if the spouse returns alive (Article 29(1) of the Civil Act). However, once a divorce judgment for unknown survival status is made final, the prior marriage is not automatically resurrected even if the living spouse returns.
There exists other material cause making it infeasible to continue the marriage.
- Definition of a material cause making it infeasible to continue the marriage
· A material cause making it infeasible to continue the marriage means an amicable joint married life as the essence of a marriage has broken down irreparably to the extent that compelling the marriage to continue would constitute intolerable hardship to a spouse (Supreme Court Judgment 2005Meu1689 announced on December 23, 2005). Whether there is material cause making it infeasible to continue the marriage is decided in consideration of various circumstances of the married life, including the degree of breakdown in the marriage, whether there is an intent to continue the marriage, the duration of married life, whether the parties are at fault, the ages of the parties, livelihood support after divorce, etc. (Supreme Court Judgment 99Meu1886 announced on September 5, 2000)
- Material cause making it infeasible to continue a marriage in judicial precedent
- Deadline for bringing action
· A divorce may not be sought for other material cause making it infeasible to continue the marriage 6 months after such cause is known or 2 years after the cause occurred (Article 842 of the Civil Act). Provided that this period has no application if the other material cause making it infeasible to continue the marriage persists at the time divorce is sought (Supreme Court Judgment 2000Meu1561 announced on February 23, 2001; Supreme Court Judgment 96Meu1243 announced on November 8, 1996), in which case divorce may be sought at any time.
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