Judgment No. 4 of the 112th Year of the Constitutional Court
Holdings
Paragraph 2 of Article 1052 of the Civil Code stipulates that if it is difficult to maintain the marriage due to serious reasons other than those specified in Paragraph 1 of the same article, one of the husband and wife may request a divorce; however, if one of the spouses is responsible for the cause, only the other party may request a divorce. Among them, the proviso restricts the responsible spouse from requesting an adjudicated divorce, which in principle does not violate the intention of Article 22 of the Constitution to protect the freedom of marriage. However, it stipulates that regardless of whether a considerable period of time has elapsed after the occurrence of a major event that makes it difficult to maintain the marriage, or whether the cause has continued for a considerable period, the solely responsible spouse is not allowed to request a judicial divorce, completely depriving him of the opportunity for divorce, which may lead to The case is obviously too harsh, and within this scope, it is inconsistent with the constitution's intention to protect the freedom of marriage. Relevant authorities shall make appropriate amendments in accordance with the intent of this judgment within 2 years from the date of announcement of this judgment. If the revision of the law is not completed within the time limit, the court shall adjudicate such cases in accordance with the intent of this judgment.
Summary of Reasoning
1. The scope of the freedom of marriage guaranteed by the Constitution not only covers the freedom to marry and maintain the marriage relationship but also includes the freedom to dissolve the marriage, that is, the freedom to divorce if and when to terminate (exit) the marriage relationship.
2. The protection of one spouse's "freedom to maintain marriage" and the restriction of "the freedom of the responsible spouse to request an adjudicated divorce" should be considered in a balanced manner when there is a conflict between the two, which is in line with the intent of Article 22 of the Constitution to protect the freedom of marriage.
3. When the breach of the marriage relationship has become so difficult to maintain and there is no possibility of recovery, and one party has no intention to continue the marriage, the provisions of Article 1052, Item 1 and Item 2 of the Civil Code restrict the only responsible spouse from requesting an adjudicated divorce, it protects only the external form of marriage, rather than the essence of living together and mutual respect and love, and this provision does not ask whether a considerable period of time has elapsed after the occurrence of a major event that makes it difficult to maintain the marriage, or whether the cause has continued for a considerable period, the only responsible spouse is not allowed to apply for adjudicated divorce, which has completely deprived him of the chance of divorce, and may lead to cases that are too harsh, which is inconsistent with the intention of Article 22 of the Constitution to protect the freedom of marriage.
4. The relevant authorities shall, within 2 years from the announcement of this judgment, revise the relevant regulations on adjudicated divorce according to the intention of this judgment. Overdue revision of the law, the law. The Court shall adjudicate such cases in accordance with the intent of this judgment.
Reference: Summary of Judgment No. 4 of the 112th Year of the Constitutional Court
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