3 November 2021
On August 5th, 2021, the Executive Yuan approves the draft amendment to the Chapter of Relatives of the Civil Code. In order to protect those unable to earn a living due to divorce and fulfill the United Nations “Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the amendment thoroughly revise the requirements and enforcement methods of the current alimony system. The main points are as follows:
1. Requirements and Enforcement Methods for Alimony Rights (Article 1057 of the draft):
(1) The United Nations “Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)” agreed that “States parties should revise provisions relating to fault-based divorce in order to provide compensation for the contributions made by the wife to the family’s economic well-being during the marriage.”
(2) In carrying out CEDAW’s resolution, the amendment removes the alimony pre-conditions of “no-fault” and “judicial divorce.” Once the amendment is passed, alimonies can be applied regardless of whether a divorce was via mutual consent, judgment, mediation, or settlement.
(3) However, alimony cannot be claimed by the obligee if the obligor could not perform his/her obligation to care for his/her immediate blood relatives or maintain his/her life after alimony payments.
(4) Alimony requests shall be negotiated by the parties, or determined by the court if such negotiation
2. Reduction in or exemption from alimony obligations (Paragraph 1, Article 1057 of the draft)
The draft expressly stipulates that the obligor may claim for a reduction in or exemption from alimony payments if the following or similar circumstances apply: (1) the obligor or his/her immediate blood relatives has been intentionally abused, severely insulted or illegally harmed, bodily or psychologically by the obligee; (2) the marriage under two years in length; or (3) sufficient evidence showing the unfairness against the obligor in alimony payments;
3. Basis for determining the extent of alimony payments (Paragraph 2, Article 1057 of the draft)
In order to achieve the purpose of post-divorce support, the extent of alimony payments shall consider the balance between “obligee’s needs” and “obligor’s economic capacity”.
4. Nullifying the right to claim alimony (Paragraph 3, Article 1057 of the draft)
(1) Remarriage of the obligee: alimony payments from a former spouse will be terminated when the obligee is “remarried” to avoid double dipping.
(2) Death of the obligee: the right to claim alimony stems from a person’s specific identity and is exclusive in nature. If an obligee is announced “dead,” his/her right to claim any remaining alimony payments would be extinguished.
5. Statute of limitations on the right to claim alimony (Paragraph 4, Article 1057 of the draft)
(1) The right to alimony claims would be extinguished 5 years after divorce if such right is not exercised.
(2) If alimony is paid periodically, the 5 years limitation stipulated under Article 126 of the Civil Code is applied for each payment period.
6. Alimony addressed under this draft does not apply to mutually agreed payments that stem from reasons other than an endangered livelihood (Paragraph 5, Article 1057 of the draft)
In the case of mutually agreed payments that stem from reasons other than an endangered livelihood after divorce is allowed due to the principle of freedom of contract. However, the alimony system set forth in Chapter of Relatives of the Civil Code only applies for those whose livelihoods are endangered after divorce. Thus, such mutually agreed payments do not fall under the regulations of this draft amendment.
Since the current alimony system was never amended since it went into effect in 1931, the contents of this amendment are much more specific in alimony requirements and applicability. However, it remains to be seen whether these changes will meet the practical needs and peoples’ expectations.
For further information, please contact:
Angela Wu, Lee Tsai & Partners
lawtec@leetsai.com
