論離婚法定事由要求之發展與排除──歐陸主要規範與我國民法之比較觀察

The Development of Requirement of Legal Ground for Divorce and Its Abandonment: A Comparative Observation of the Main Legislations in Continental Europe and Art. 1052 of the Civil Code of Taiwan

於單方離婚受有法定事由限制之立法例下，如我國民法第1052條，須具備法定事由始得離婚。惟比較法上亦有無庸具備法定事由即得自由離婚，從而排除離婚法定事由要求之立法例。於立法政策上，經由導入無庸具備法定事由即得離婚之規範，始能尊重個人已無意維繫婚姻之意思，並正視婚姻存續基礎已不存在之事實，此並有助於維護婚姻隱私與子女保護。由於無須具備婚姻破綻即得離婚，規範上即得捨棄就破綻為有責者不得請求離婚之限制，惟仍得加諸別居、結婚滿一定期間或反省期間已經過之限制，並得導入苛刻條款，於離婚將對於他方造成苛刻結果時排除離婚請求權。經此，單方與合意離婚同樣不受法定事由限制，婚姻與離婚法制始能真正擺脫來自教會法之影響。

Under the legislation where legal grounds are required for divorce, such as those regulated under Art. 1052 of the Civil Code of Taiwan, divorce is not permitted while no legal ground exists. However, there exists legislation in comparative law in which couples enjoy the freedom of divorce for that divorce is still permitted while no legal ground such as a fault or irretrievable breakdown of the marriage exists. By introducing such kind of mechanism, the free will of individuals not to maintain marriage can be respected. Meanwhile, the nonexistence of the foundation of marriage can also be truly evaluated. This is also helpful for the protection of the privacy of the marriage and children. While the requirements for legal grounds to divorce are abandoned, the regulation to exclude the responsible party’s right to claim for divorce can also be abandoned. Yet the requirement for the period of separation, reconsideration, or continuance of marriage can be introduced as supplementary measures. Besides, the hardship clause can be introduced to exclude the divorce application while the divorce itself could result in a hardship situation. By abandoning the requirements for legal grounds to divorce, unilateral divorce therefore requires no legal grounds as consent divorce. The regime of marriage and divorce can thus truly be free from the influence of ecclesiastical law.