Marital Property Rights in Taiwan

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Marital Property Rights in Taiwan

Postby Enigma » 12 Oct 2011, 15:36

We have been discussing this issue in a class and with a little effort, I came up with this. It probably isn't breaking news but is of interest to me and probably to a few others as well.

The document enclosed contains articles of Taiwan Matrimonial Property Regimes, which are extracted from the Taiwan Civil Code, and are the dominant criteria for court findings when deciding these kinds of cases. Sorry the cut and paste function kind of muddles it but it should cut and paste back to a Word.doc nicely (Maybe)

Most Taiwanese couples do not adopt their own Matrimonial Property Regimes by contract. Thus, the Subsection 2 Statutory Regimes, which is set forth from Article 1017 to 1030-4, is much more reviewed and discussed compared to other Articles. Basically husband and wife own their property seperately. However, when this property regime is dissolved, ex. divorce, the person (husband or wife) who has less property has a claim to the other party's property. This is regulated by Article 1030-1 to 1030-4.
If couples want to decide their regime by contract, their choices are stipulated from Articles 1031 to 1046, which include aspects of the Community Property and Separate Property Regimes.
In the case that couples adopt the Separation of Property Regime, then when this property regime is dissolved, the person (husband or wife) who has less property would not have any claim to the opposite party.
In this respect it is totally different from the Statutory Regimes.

Section 4 Matrimonial Property Regimes
     Subsection 1 GENERAL PROVISIONS
Article 1004 The husband and the wife may, before or after getting married, adopt by contract one of the contractual regimes provided by this Code as their matrimonial property regime.
Article 1005 Where the husband and the wife have not contracted the holding of matrimonial property, unless otherwise provided by this Code, the statutory regime shall be applied.
Article 1006 (Repealed)
Article 1007 The conclusion, modification or termination of a contract for the holding of matrimonial property must be done in writing.
Article 1008 The conclusion, modification or termination of a contract for the holding of matrimonial property may not be a valid defense against any third party unless it has been registered.
Registration provided in the preceding paragraph will not affect any other registration of the property right according to the other law.
Registration provided in the first paragraph shall be regulated by a particular law.
Article 1008- 1 The provisions in the preceding two articles shall be applicable mutatis mutandis to other agreements pertaining to matrimonial property.
Article 1009 Where either the husband or the wife is declared bankrupt, the separation of property regime shall be applied.
Article 1010 Either the husband or the wife is in any of the following circumstances, the court may, at the instance of the other party, order the application of the separation of property regime:
(1) Where liable for the living expenses of the household but failed to provide such;
(2) Where either the husband or the wife is in a state of insolvent;
(3) Where according to the law, the disposition of property requires the consent of the other party, but such consent is refused without a good cause;
(4) Where one party who is entitled to manage has obviously managed the common property improperly, and failed to make any improvement thereon by request of the other;
(5) Where one party improperly reduced his own property acquired in marriage and this may endanger the other's right to claim for distribution of the remainder [of the property];
(6) Where any other gross event has occurred.
Where the husband and the wife are both in a state of insolvent, or where they could hardly maintained their common living, and have not lived together for more than six months, provisions in the preceding paragraph will be applicable to both of them.
Article 1011 Where a creditor could not be satisfied in the attachment of the property of either the husband or the wife, the court may, at the instance of the creditor, order the application of the separation of property regime.
Article 1012 During the continuance of the marriage, the husband and the wife may, by contract, terminate their contract for the holding of property, or adopt any other contractual regime.
Article 1013 (Repealed)
Article 1014 (Repealed)
Article 1015 (Repealed)
     Subsection 2 Statutory Regimes
Article 1016 (Repealed)
Article 1017 The property of either the husband or the wife shall be divided into the property acquired before marriage and the property acquired in marriage, and shall be owned respectively. If the property could not be proven to be the property acquired before marriage or in marriage, it shall be presumed as the property acquired in marriage; it the property could not be proven to be owned by the husband or the wife, it shall be presumed as owned by the husband and the wife jointly.
The remains of fruits gained from the property acquired either by the husband or the wife before marriage during the continuance of the marriage relationship shall be deemed as the property acquired in marriage.
If the husband and the wife have contracted the holding of matrimonial property, and then adopted the statutory regime, the property before the adoption shall be deemed as the property acquired before marriage.
Article 1018 The husband or the wife would manage, use, collect fruits from, and dispose his or her own property respectively.
Article 1018- 1 With the exception of the living expenses of the household, the husband and the wife may contract a certain amount of money paid by one for the other's free disposition.
Article 1019 (Repealed)
Article 1020 (Repealed)
Article 1020- 1 Where the husband or the wife's gratuitous act on his or her property acquired in marriage during the continuance of the marriage relationship endangers the other's right to claim for distribution of the remainder [of the property] upon the termination of the relationship over the statutory regime, the other may apply to the court for its annulment, except it was a proper gift for performing a moral obligation.
Where the husband or the wife's non-gratuitous act on his or her property acquired in marriage during the continuance of the marriage relationship endangers the other's right to claim for distribution of the remainder [of the property] upon the termination of the relationship over the statutory regime, the other may apply to the court for its annulment only if it was done with knowledge of the endangerment and the beneficiary knew this upon the receipt of the benefit as well.
Article 1020- 2 The claim for annulment provided in the preceding paragraph shall be extinguished if it is not exercised within six months from the time when the husband or the wife has known the reason for annulment, or if one year has elapsed from the time when the act has been committed.
Article 1021 (Repealed)
Article 1022 The husband or the wife is under an mutual obligation to inform the other of the condition of his or her property acquired in marriage.
Article 1023 The husband or the wife is respectively liable for his or her own debts.
When the husband or the wife discharges the other's debts with his or her own property, even if it is during the continuance of the marriage relationship, he or she may claim for payback.
Article 1024 (Repealed)
Article 1025 (Repealed)
Article 1026 (Repealed)
Article 1027 (Repealed)
Article 1028 (Repealed)
Article 1029 (Repealed)
Article 1030 (Repealed)
Article 1030- 1 Upon dissolution of the statutory marital property regime, the remainder of the property acquired by the husband or wife in marriage, after deducting the debts incurred during the continuance of the marriage relationship, if any, shall be equally distributed to the husband and the wife, except property listed as follows:
(1) Property acquired from succession or as a gift
(2) Solatium
The court shall adjust or waive the share of distribution provided that equal distribution referred to in the preceding paragraph is obviously unfair.
The right to claim for distribution or the reminder [of the property] referred to in the first paragraph shall be extinguished if it is not exercised within two years from the time where the claimant has known that there is such a remainder, or if five years have elapsed from the dissolution of the statutory marital property regime.
Article 1030- 2 If the husband or the wife discharged his or her debts incurred before marriage with his or her property acquired in marriage, or if discharged his or her debts incurred during the continuance of the marriage relationship with his or her property acquired before marriage, unless this property has been made up, it shall be counted into the remainder of the property acquired in marriage or the debts incurred during the continuance of the marriage relationship upon the termination of the relationship over the statutory regime.
If the husband or the wife discharged his or her debts with his or her property described as the exception in the first paragraph of the preceding article, the provisions provided in the preceding paragraph shall be applied.
Article 1030- 3 If the husband or the wife, in order to reduce the other's share of distribution of the remainder [of the property], disposed his or her property acquired in marriage within five years before the termination of the relationship over the statutory regime, this property shall be counted into, and deemed as the remainder of the property acquired in marriage, except the disposition was a proper gift for performing a moral obligation.
In the preceding paragraph, where one who is obligated to pay the share of distribution [of the remainder of the property] could not pay off those the other is entitled to receive, the one who is entitled to receive may claim to the third party for restituting the shortness of the share to the extent that the third party is benefited; however if the third party is not gratuitously benefited, the claim for restituting [the shortness of the share] may be made only if the third party is benefited from an obviously uneven payment.
The claim to the third party provided in the preceding paragraph shall be extinguished if it is not exercised within two years from the time when the claimant has known the infringement of distribution right [of the remainder of the property], or if it has elapsed five years from the termination of the relationship over the statutory regime.
Article 1030- 4 The value of the remainder of the property by the husband or the wife acquired in marriage shall be counted at the termination of the relationship over the statutory regime; however if the relationship is terminated by a juridical decree of divorce, it shall be count at the commencement of the action.
The value of the property counted into the remainder of the property acquired in marriage referred to in the preceding article shall be counted at the time of the disposition.
     Subsection 3 Contractual Regimes
      Item 1 Community of Property
Article 1031 With the exception of separate property, all the property and income of the husband and the wife constitute common property to be owned by them in common.
Article 1031- 1 The following constitutes the separate property:
(1) Articles which are exclusively intended for the personal use of the husband or the wife;
(2) Articles which are essential to the occupation of the husband or the wife;
(3) Gifts acquired by the husband or the wife which the donor has designated in writing to be the separate property.
The separate property provided in the preceding paragraph is governed by the provisions concerning the separation of property regime.
Article 1032 The husband and the wife manage the common property jointly except it has been agreed by the party who is entitled to manage.
The cost of management is borne out of the common property.
Article 1033 Either the husband or the wife must have the consent of the other for disposing of the common property.
The absence of such consent cannot be set up against a third party, unless he knew or had the means of knowing its absence, or unless the property in question could have, under the circumstances, been regarded as part of the common property.
Article 1034 Debts incurred by the husband or the wife before or during the continuance of the marriage relationship, should be chargeable to the common property and should be respectively liable to the extent of the separate property.
Article 1035 (Repealed)
Article 1036 (Repealed)
Article 1037 (Repealed)
Article 1038 Debts payable out of the common property, where have been paid out of the common property, no claim for compensation will arise.
Debts payable out of the common property, where have been paid out of the separate property, or debts payable out of the separate property, where have been paid out of the common property, the claim for compensation shall arise and can be made even during the continuance of the marriage relationship.
Article 1039 Upon the death of one of the husband and the wife, half the common property shall pass to the heir of the deceased and the other half shall devolve on the surviving party.
In the case of the division of property mentioned in the preceding paragraph, where some other agreement exists as to the amounts, such agreement shall be followed.
In the case provided in the first paragraph, where the surviving party is by law unable to inherit, he may not claim a greater portion of the common property than he would get in the case of divorce.
Article 1040 On the dissolution of the community of property regime, each of the husband and the wife gets back the property of contracting for the holding of matrimonial property, unless otherwise provided for by law.
The common property was caused during the continuance of the community of property regime, each of the husband and the wife acquires a half of the property, unless otherwise provided for by contract.
Article 1041 The husband and the wife may agree by contract that the common property shall consist only of labor income.
Labor income as specified in the first paragraph comprises earnings from salary, wage, shares, bonus and the other related income acquired by the husband and the wife during the continuance of marriage relationship, as well as the interests and substitute profits of the labor income.
The property could not be proven as the labor income or the other property rather than labor income, will be presumed as labor income.
The property rather than the earnings of the husband or the wife is governed by the provisions concerning the separation of property regime.
The provisions in Article 1034, Article 1038 and Article 1040 shall be applicable mutatis mutandis to the first paragraph.
      Item 2 (Repealed)
Article 1042 (Repealed)
Article 1043 (Repealed)
      Item 3 Separation of Property Regime
Article 1044 In the separation of property regime, the husband and the wife each retains the ownership, and each party manages, uses, collects fruits from and disposes his or her own property respectively.
Article 1045 (Repealed)
Article 1046 The liability of debts incurred by the husband or the wife in the separation of property regime shall apply the provisions in Article 1023.
Article 1047 (Repealed)
Article 1048 (Repealed)
Enigma
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Re: Marital Property Rights in Taiwan

Postby asifio » 17 Feb 2013, 17:42

Very useful. Thanks for the effort.
asifio
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