|Family Law |
Divorce by judgment of the Court means one spouse takes the grounds of action for divorce as provided by the law to claim for divorce.
Section 1516 of the civil and commercial code has provided the grounds of action for divorce as follows:
(1) if the husband or the wife who is maintaining or lauding other person as his or her spouse or having got an adulterer,or has had sexual intercourse in a regularity,the other party can enter a claim for divorce."
(2) one spouse is guilty of misconduct, notwithstanding whether such misconduct is a criminal offence or not, if it causes the other:
(a) to be seriously ashamed;
(b) to be insulted of hated [sic] or account of continuance of being husband or wife of the spouse having committed the misconduct; or
(c) to sustain excessive injury or trouble where the condition, position and cohabitation as husband and wife are taken into consideration; the latter may enter a claim for divorce;
(3) one spouse has caused serious harm or torture to the body or mind of the other, or has seriously insulted the other or his or her ascendants, the latter may enter a claim for divorce;
(4) one spouse has deserted the other for more than one year, the latter may enter a claim for divorce;
(4/1) one spouse had been sentenced by a final judgment of the Court and has been imprisoned for more than one year in the offence committed without any participation, consent or in the knowledge of the other, and the cohabitation as husband and wife will cause the other party sustain excessive injury or trouble, the latter may enter a claim for divorce;
(4/2) the husband and wife voluntarily live separately because of being unable to cohabit peacefully for more than three years, or live separately for more than three years by the order of the Court, either spouse may enter a claim for divorce;
(5) one spouse has been adjudged to have disappeared, or as left his or her domicile or residence for more than three years and being uncertain whether he or she is living or dead;
(6) one spouse has failed to give proper maintenance and support to the other, or committed acts seriously adverse to the relationship of husband and wife to such an extent that the other has been in excessive trouble where the condition, position and cohabitation as husband and wife are taking into consideration, the latter may enter a claim for divorce;
(7) one spouse has been an insane person for more than three years continuously and such insanity is hardly curable so that the continuance of marriage cannot be expected, the other may enter a claim for divorce;
(8) one spouse has broken a bond of good behavior executed by him or her, the other spouse may enter a claim for divorce;
(9) one spouse is suffering from a communicable and dangerous disease which is incurable and may cause injury to the other, the latter may file a claim for divorce;
(10) one spouse has a physical disadvantage so as to be permanently unable to cohabit as husband and wife, the other may enter a claim for divorce.
No action for divorce may be instituted by the husband or wife, as the case may be if such spouse has consented to or connived at the acts under Section 1516 (1) and (2) upon which the action for divorce is based. If the ground of action for divorce under Section 1516 (10) has resulted from the act of the other spouse, the action for divorce based upon such ground may not be instituted by such other spouse.
Where the action for divorce based upon the ground under section 1516 (8) has been instituted, the Court may not pronounce judgment to effect the divorce if the behavior of the husband or wife that causes the bond to have been executed is a minor cause or of no importance in relation to peaceful cohabitation as husband and wife.
The right to institute an action for divorce would be terminated if the spouse entitled thereto has committed any act showing his or her forgiveness to the act done by the other that has caused the right to institute the action for divorce.
Divorce by judgment of the Court takes effect on and from the time when the judgment becomes final and the relationship between a husband and wife is held to be finished since then.
However, such judgment may not be set up to the prejudice to the rights of third persons acting in good faith unless the divorce has been registered.
When the divorce has already been registered, the third person shall not get the protection of right even the legal acts will be made with the divorce couple honestly, the interested third person just only submit to a registrar with a copy of the judgment which has been certified true together with a certificate of lawsuit to the last and asking the registrar to record in the divorce certificate and this is held that the divorce has already been registered.
Result of divorce by judgment of the Court shall be separate considered as follows:
The result of divorce between spouses including:
(1) Division of marital property (Sin Somros) and the liquidation
The liquidation shall apply to the property of the husband and wife as
it was on the day when the action for divorce was entered in Court. The property which any one party obtained after the day of institute the action for divorce shall becomes to such party and it shall not be the marital property anymore. The marital property shall be divided equally between man and woman.
The man and woman shall be liable for debts equally; regardless of the personal property or the share of marital property which such man and woman have been taken.
Where either spouse has made disposal of the marital property for his or her exclusive benefit, or has made disposal thereof with an intention to cause injury to the other, or without the consent of the other, if the share of the marital property (Sin Somros) that the other will receive is not complete to what he or she should have received, the party at fault is required to make up for the arrears from his or her share of the marital property or his or her personal property (Sin Suan Tua).
Compensation as being money which the spouse who was a defendant of the divorce case has to pay as damages to the spouse who was a plaintiff, shall be in the following cases:
Divorce by judgment of the Court on the ground as provided in Section 1516 (1), the husband or wife is entitled to compensation from the husband or wife and other woman or adulterer, as the case may be. However, the husband or wife is not entitled to claim compensation if he or she has consented to or connived at the act done by other party under Section 1516 (1).
If the ground of action for divorce under Section 1516 (3), (4) or (6) has arisen through an act of the party at fault with the intention to make the other party so intolerable that action for divorce has to be entered, the other party is entitled to compensation from the party at fault.
The compensation shall be decided by the Court according to the circumstances, and the Court may give an order for a single payment thereof or payment in installments as may be deemed suitable by the Court.
(2) Living allowances
The living allowances as being money or other benefit which one spouse shall take responsibility by law when the divorce has been made by the judgment of the Court, if the ground for divorce has derived from the guilt of only one party, and the divorce will make the other become destitute deriving insufficient income out of his or her property or business which used to be carried on during the marriage, the latter is entitled to apply for the living allowances to be paid by the party at fault and the living allowances could be changed afterwards according to the circumstances. The right to claim the living allowances is individual which could not be waived or transferred and shall not be in the limits of legal execution.
Result of divorce to a child including:
(1) Child custody
The Court shall decide that the parental power over each of the children belongs to any party, by taking into consideration the happiness and interest of the child and the Court may give an order depriving the parental power of the spouse if there is any ground to deprive, such as exercise the parental power over the minor improperly.
The Court has power to determine that both of the spouses or either spouse, will contribute to the maintenance of the children and how much is the contribution by taking consideration from the financial ability of both spouses even the parental power, wholly or partly, of mother and father shall be deprived, this shall not be the ground for being free from the responsibility of maintenance the minor child.
Maintenance shall be maid as money or other manners which could be changed afterwards if the circumstances of income or the status of the spouse has changed. The right to receive the maintenance could not be waived or transferred and shall not be in the limits of legal execution.
(1) Right to contact the child
The spouse, without the parental power after the Court has an order to divorce, shall have the right to contact his or her child according to the circumstances.
In case of you, it appeared that you have separated from the wife for almost 3 years, if you want to claim for divorce against the wife, it may be in the 2 grounds of the action for divorce which are:
The ground of action for divorce under Section 1516 (4) in case of one spouse has deserted the other for more than one year, the latter may enter a claim for divorce.
The ground of action for divorce under Section 1516 (4/2) in case of the husband and wife voluntarily live separately because of being unable to cohabit peacefully for more than three years, or live separately for more than three years by the order of the Court, either spouse may enter a claim for divorce.
If you will claim for divorce against the wife with the ground of desertion, it must be appeared that the wife has deserted the husband for more than one year and the desertion shall be acted intentionally which is separated to live in other place and does not want to live together with the other party. But if you have deserted from your wife, this may not be the ground to claim for divorce.
In case of you will claim for divorce with the ground of voluntary living separately because of being unable to cohabit peacefully for more than three years. The separate living must be caused from the voluntariness of both parties, if anyone party is not voluntary to live separately or it occurred by the desertion of the other party and never come back to visit, this is held that the latter party may not enter a claim for divorce and the divorce shall be claimed with this ground must have the period of separate living for more than three years.
A claim for divorce is a case which having a dispute on the right between two persons. Filing a case must be made to the Family and Juvenile Court where the defendant has a domicile in the area of the jurisdiction of the Court or the Court where the cause of action for divorce has been taken place in the area of the jurisdiction of the Court. When the charge has already been filed, a summons and a copy of the plaint shall be sent to the defendant in order to file the answer if the spouses of such claim for divorce have a child.
If both are the minor, the plaintiff shall give the preliminary fact to the director of relevant Juvenile Observation and Protection Office by contacting the case investigation department within the period as defined by the Court in order that an officers of the Office will provide a report of the fact to the Court before the trial starts because it is the case which the minor take part of benefit and interest. When the period to file the answer is due and it appeared that the defendant fails to file the answer, the plaintiff shall apply the Court to complete the filing answer of the defendant in order that the Court shall have the judgment or decided order for the plaintiff to win the case by absence. The Court shall examine witnesses of the plaintiff solely and the Court may call for other evidences to examine as think that it is necessary for the benefit of the justice because it is the case concerning to the right in the family but if the defendant files the answer when the court date is due and the parties could make an agreement, the Court then will have a judgment according to the compromise agreement but if the agreement could not be made, the Court then will continue the examination witnesses.
When the Court has a judgment for the plaintiff and defendant to divorce from each other and the case has come to the last, the plaintiff or interested person can copy the judgment which certified true by the official together with a certificate of lawsuit to the last submitting to the registrar in order to make a record in the divorce certificate by taking the judgment for showing the intention of the defendant.
However, the trial of the divorce case takes about three months at the beginning, commencing from the date of institute the case which is up to the court date and the tendency of the proceeding of the litigants such as the period to make an agreement or the period to adduce evidence to the court.