What is the decriminalization of adultery? What does the Constitutional Interpretation of Article 239 of the Criminal Code mean?

In May of this year, the Constitutional Court issued Interpretation No. 791, declaring that the Criminal Code's adultery provision and the proviso in Article 239 of the Code of Criminal Procedure were unconstitutional. From the day of the ruling, these provisions became immediately invalid, a development commonly referred to as the decriminalization of adultery.

What is adultery?

Adultery refers to sexual intercourse between a man and a woman who are not married to each other, particularly when one or both parties are already married. Article 239 of the Criminal Code states:

"A married person who commits adultery with another shall be sentenced to imprisonment for not more than one year. The same shall apply to the other party involved."

This is what most people know as the crime of adultery. So, why was it decriminalized?

To understand this, one must first understand what criminal law is. Compared to civil law, which governs relationships between individuals, criminal law regulates the relationship between the state and the people. When criminal law punishes adultery, it essentially means the state is using public authority to interfere in people’s private lives, which is often viewed as a violation of the principle of proportionality. In most Western countries, adultery is not a criminal offense—they consider it a personal issue, not one that concerns the state's coercive power.

In addition to the crime of adultery, a clause in Article 239 of the Code of Criminal Procedure was also found unconstitutional. The provision stated:

"For offenses subject to prosecution upon complaint, a complaint or withdrawal of a complaint against one co-offender shall also apply to the other co-offenders. However, in the case of the offense under Article 239 of the Criminal Code, the withdrawal of a complaint against the spouse shall not apply to the co-offender."

In simple terms, a woman could file charges against both her spouse and the third party involved in the affair, but later withdraw the complaint against her spouse—perhaps due to public pressure or personal reasons. However, the third party would still be prosecuted, which was seen as unfair, since an affair cannot happen with only one person. Therefore, this clause was also ruled invalid.

Without the crime of adultery, is the criminal offense of interfering with the family now meaningless?

The crime of adultery was actually just one part of Chapter 17 of the Criminal Code, which covers offenses interfering with marriage and the family. Other offenses included in this chapter, such as abduction (e.g., enticement), also remain in effect. Moreover, the scope of these laws isn't limited to protecting spouses (i.e., marriage); some provisions also protect children. For example:

• Article 237 deals with bigamy.
• Article 238 targets fraudulent marriages.
• Articles 240 to 245 address the abduction of males and females under 20 years old.

Therefore, the decriminalization of adultery does not render the entire category of family-related criminal offenses meaningless.

Adultery can still lead to civil lawsuits—so what is civil infringement of spousal rights?

Even though the criminal offense of adultery has been abolished, civil law still provides protection. Under civil law, infringement of spousal rights is considered a form of damage compensation. Civil law protects rights related to property, personality, and identity, and spousal rights fall under identity rights.

Compared to the crime of adultery, which required sexual intercourse to constitute a violation, proving civil infringement of spousal rights is much easier. Any behavior that goes beyond normal friendship—such as flirtatious messages or intimate photos taken in public—can be used as evidence. Based on Articles 184, 185, and 195 of the Civil Code, one can file a civil lawsuit to demand compensation.

However, whether a violation of spousal rights is recognized depends on how the judge evaluates the evidence, so it is crucial to gather as much evidence as possible before filing.

What is the statute of limitations for claiming civil infringement of spousal rights? Can I still sue after many years?

The statute of limitations for civil claims regarding spousal rights infringement is 10 years. If you already knew about your spouse’s affair, you must file the lawsuit within 2 years of becoming aware.

Even if the affair is discovered after a divorce, it is still possible to file a claim. However, once the statute of limitations has passed, legal action can no longer be taken.

How much compensation can you receive for civil infringement of spousal rights?

Since civil law does not involve prison sentences, it focuses on monetary compensation for emotional distress and other harms. The betrayed spouse can seek damages from both the cheating spouse and the third party.

Judges will determine the amount of compensation based on factors such as the defendant's education, income, and background. Because this type of case can also include interference with the family, the likelihood of a successful judgment is higher than that of the criminal adultery charge, and the compensation amounts can also be greater—ranging from hundreds of thousands to over a million NTD.