The issue of the divorce claim brought by the spouse at fault
Principle- According to judicial precedent, the spouse mainly at fault for the breakdown of the marriage (hereinafter “spouse at fault”) may not, in principle, seek divorce on the grounds of such a breakdown. It is fundamentally opposed to morality for the person who broke down the marriage to seek divorce, and it may constitute a unilateral divorce by one spouse or an ejection divorce (e.g., Supreme Court Judgment 97Meu612 announced on February 12, 1999; Supreme Court Judgment 86Meu28 announced on April 14, 1987).
Exceptions- However, under extraordinary circumstances, as in the following examples, judicial precedent exceptionally upholds the divorce claim by the spouse at fault:
· There is a special circumstance such as the other party refusing to divorce out of stubbornness or revenge despite its being objectively clear that such other party also has no intention to continue the marriage (Supreme Court Judgment 2004Meu1033 announced on September 24, 2004).
· The other party files a counter-complaint seeking divorce in response to the divorce claim brought by the spouse at fault (Supreme Court Judgment 87Meu44,45 announced on December 8, 1987).
※ However, it cannot be automatically concluded from the mere fact that the other party contests the facts asserted by the divorce claim brought by the spouse at fault and seeks divorce in a counter-complaint raising different facts that the other party refuses to accede to the divorce claim brought by the spouse at fault based on stubbornness or revenge without intending to continue the marriage (Supreme Court Judgment 98Meu15,22 announced on June 23, 1998).
· Where both spouses are equally at fault, or it cannot be said who is more at fault (Supreme Court Judgment 97Meu155 announced on May 16, 1997; Supreme Court Judgment 94Meu130 announced on May 27, 1994)