You cannot directly file a lawsuit for divorce. The law provides that you must file a mediation proceeding before filing a lawsuit. If the mediation fails, then you can file a lawsuit.
Usually, if you come all the way to filing a lawsuit, you or your spouse must be disagreeing with the divorce. Then, you have to have certain grounds or reasons for a court to allow your divorce.
Such grounds are as follows:
- If a spouse has committed an act of adultery;
- If abandoned by a spouse in bad faith;
- If it is not clear whether a spouse is dead or alive for three years or more;
- If a spouse is suffering from severe mental illness and there is no possibility of recovery; or
- If there is any other grave cause making the marriage difficult to continue.
As you can see, most of the divorce cases are disputed around reasons 1 and 5 above.
If your spouse has cheated on you, you can claim reason 1 for divorce.
If your spouse has committed domestic violence (DV) on you, you can claim reason 5.
On the condition that you are not responsible for any reasons for divorce, if you live separately with your spouse for 5 years or more, a court usually finds that there is a grave cause under the reason 5 above, though the longer the years you lived together, the longer the years of separation required for a court to admit your divorce.
On the other hand, if you are responsible for any reasons above (For example, if you cheated on your spouse or if you ever committed an act of violence on your spouse), and your spouse disagrees with divorce, it will become difficult to claim for divorce, especially if you have a child or children under age.
The Supreme Court has shown the following criteria whether to deliver a divorce judgment in such a case:
- Whether a couple has lived separately quite a long time compared to their ages and their years of living together;
- Whether they have a child or children under age; and
- Whether there is no special circumstances that delivering a divorce judgment will be significantly against social justice such as those under which a spouse (who disagree with the divorce) will be placed under extremely harsh situation in mental, social, or economic aspects.
For this reason, you should be careful about going out with a person other than your spouse even if you live separately with your spouse until you get divorced.
For details on measures against DV, see this article.