By Kuo-Ming Huang & Jia-Wei Chao, CSO/Senior Partner & Associate of Formosan Brothers, Attorneys-at-Law

Lately, celebrity couples, such as “Hung-Chieh Chiang & Ai Fukuhara,” “Hsi-Yuan Hsu also known as Big S & Xiao-Fei Wong,” and “Leehom Wang & Jinglei Lee”, have divorced by agreement. As such, netizens in Taiwan have dubbed the year 2021 as “the first year of divorce in the entertainment industry.” In fact, according to the statistics by the Department of Household Registration of the Ministry of the Interior, for the three years from 2018 to 2020, there have been 54,402, 54,436, and 51,160 of couples divorced respectively. Whether the reason for divorce is he/she was at fault during the marriage and agrees to divorce, or he/she found out that the other one is having an affair and therefore files for divorce, as long as the couple decide to divorce, they have to make all the love-hate relationships during the marriage clear.

In Taiwan, there are two types of divorce: divorce by juridical decree and divorce by agreement. The former, as the name suggests, occurs when a couple cannot divorce by agreement and have to file a divorce proceeding to dissolve their marriage relationship. But one needs to note that, the party needs to meet one of the conditions as prescribed in Article 1052 of the Civil Code if one intends to petition the court for a juridical decree of divorce.

Since a judicial decree of divorce requires statutory causes and the litigation procedure may be lengthy, it is yet another unbearable burden for an already estranged couple. Hence, if the husband and the wife already have a common understanding regarding various legal relationships arising from a divorce, they may sign an agreement privately and divorce amicably. For this way, it will need two witnesses cosign the agreement for divorce and the couple later apply for divorce registration at the household registration authority. At this time, it is recommended to have the divorce agreement notarized to prevent the possibility of non-performance of the divorce agreement by one party. In such case, the other party may petition for a compulsory enforcement of the divorce agreement by presenting the notarized divorce agreement to the court.

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However, lately many celebrities have taken an even more prudent step, which is after having a common understanding of the matters regarding their divorce, they may apply for divorce mediation to the court and had the mediator make a mediation proceeding transcript which has the same binding effect as a court judgment. If one party does not perform the content of the mediation proceeding transcript, the other party can petition for a compulsory enforcement to the court directly by presenting the mediation proceeding transcript. Moreover, either party may present the mediation proceeding transcript to apply for divorce registration at the household registration authority or to transfer the title of the real estate at the land administration authority. This can save the couple from possible disputes if they were divorce by signing an agreement privately aforementioned.

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The moment a couple decide to divorce, all love-hate relationships in the past has become legal disputes about “money” and “child.” Especially in the case of a divorce by agreement, since the court did not involve in the case, the couple must stipulate the following legal relationships clearly: (1) guardianship (parental right): Before a minor child becomes a majority, it is the father, the mother or both parents jointly exercise the rights of protecting and educating the minor child. All relevant matters from the residence and the school of the minor child to the way to use the property, and so on, all matters need to be clearly stipulated.

(2) Expenses of maintenance: Since a minor child usually lives with one of the parents and the parent who resides with the minor child needs to assume the living expenses for the child, therefore, it is often stipulated that one parent shall pay a certain amount of expenses of maintenance monthly to the other who takes care of the minor child. In addition to the amount of expenses of maintenance, the divorce agreement should also expressly stipulate the date of the month, method, and bank account number for the monthly payment, it shall also add a statement such as, “if any installment is delayed, the whole prestation is deemed to be due,” so that in case the party does not pay the expenses of maintenance as stipulated, the other parent may ask for the full amount in a lump sum.

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(3) Rights of meeting or communication: Since a minor child often resides with only one parent, the law also grants the other parent the rights of meeting or communication. During the process of negotiation, attention should be paid especially to the period and way of meeting or communication during winter/summer breaks, lunar new year, the child’s birthday, Father’s Day, Mother’s Day, and any other special holidays.

(4) Distribution of the remainder: If no special stipulation exists, all properties acquired in marriage shall be equally distributed to the husband and the wife when they divorced. However, the scope of properties acquired in marriage, from the appreciation of real estate to the calculation of interests from stock holdings, etc., are all grounds for battle. If a couple cannot reach a consensus, there is no choice but to put in lots of labor, time, and money into a divorce of no return by juridical decree. But the most important thing is whether the divorce agreement has expressly stipulated a so-called “Waiver clause” – that is, a statement like, “both parties waive the right to claim the distribution of the remainder of the property and all other claims arising from this marriage or this divorce,” to prevent any subsequent litigations regarding the divorce.

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Lastly, instead of continuing a contentious relationship after the divorce, it is better for the divorced couple to take more account of the children and think calmly. They shall handle their rights and obligations clearly after the divorce, and move on with their own lives. If so, each might gain a lifelong friend and the children will have the parents who are fully devoted to them.

(This article was published in the Expert’s Commentary Column of the Commercial Times：https://view.ctee.com.tw/tax/35613.html）

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