Taiwan decriminalizes adultery, but there is more to be done

I don't have a good cover photo so please enjoy these creepy dolls

Just a few hours ago, the constitutional court in Taiwan ruled that adultery - until now a criminal offense in Taiwan - was in violation of the principles of autonomy and proportionality in the ROC constitution. 

Specifically, it was decided that the criminalization of adultery interfered too much with the principle of "sexual autonomy", in that it allowed for the prosecution not just of a married spouse, but of his or her lover, a third party to the marriage. In fact, as the law allowed not only for the prosecution of both the spouse and the lover, but also for the aggrieved to drop charges against their spouse while continuing with the prosecution of their affair partner, it had a tendency to enable "revenge" charges.

This is a key reason why the adultery law was found to be punitive against women more than men: male plaintiffs were more likely to prosecute their wives and wives' affair partners, whereas wives were more likely to drop charges against their husbands (possibly forcing them to stay in the marriage) while continuing to prosecute their husbands' lovers.

The number of women prosecuted relative to men amounts to very few actual people, as only a handful of these cases make it to court. Most allegations of adultery are used as bargaining chips in contentious divorces or worse, to blackmail a spouse into staying. However, with slightly more than half of defendants being women, it still works out to more women than men, and therefore affects women disproportionately.

Furthermore, at the time of the law's passage, views of gender roles and traditional marriage were different from what they are today, so the court found criminalizing extramarital affairs was not in congruence with the society Taiwan is today. Although decriminalization still wasn't something society at large favored, overall over the past few decades gender roles have in fact changed.

Of course, this changing consensus on marriage and gender also includes same-sex marriage. The law never covered same-sex couples, meaning it didn't even pertain to all married couples in Taiwan as of 2019. Rather than ask for the full equality of being included in this law, LGBT activists wisely supported abolishing it altogether.

Most constitutional court interpretations are not publicly announced, so this immediate announcement is unprecedented, and we can only hope the trend will continue.

It's interesting to me that the court arrived at exactly the right interpretation - this law hurt women more than men  - when the original law was conceived of to protect women. As the court itself stated, at the time, ideas about gender were very different from what they are now. It was believed that men were far more likely to cheat, and giving an aggrieved wife the ability to sue for damages, put her husband's affair partner in jail (and possibly even her husband) and get a divorce was considered to be a way to "level the playing field"...for women.

It is clear that if this ever was the case, it no longer is, and the court was correct to realize this.

The original law was also based on outdated patriarchal views of which women deserved protecting: wives and mothers, the "good women", and which women deserved punishments (the "bad women" their husbands played around with). Along with that, there was an unspoken assumption that while the wife could prosecute her husband as well if she wanted a divorce, that it would be entirely reasonable to try and stay married to a man who supports her financially, punishment-free, while going after the woman he cheated with. (I suppose any 'punishment' would be carried out through an extremely tense domestic life under such social mores). So in attempting to protect women, this law still upheld the patriarchy regarding women's roles.

This isn't the end of the story, though. Unilateral no-fault divorce is still hard to obtain in Taiwan - you essentially need a judge to approve it, and they may well not - meaning that if you want a divorce but your spouse won't agree to it, you need to prove fault. One possible "fault" that will allow the divorce to go through is adultery, meaning it is still possible in civil court to punish one's spouse for having an affair, by forcing them to pay damages, and in getting a "more favorable" divorce settlement for the aggrieved spouse.

In fact, one of the judges on the adultery case stated that, as some women, specifically, will feel a "bargaining chip to protect rights and interests" has been taken away, that the amount of damages or what they can claim in a divorce settlement should be raised.

The best way to deal with this isn't just to end adultery as an offense in civil court, although that should also happen. It's to legalize unilateral no-fault divorce. Public buy-in is also important: gaining a public consensus that ending a bad marriage is better than staying in it, and worth more than any amount of monetary payout (this also means pushing for greater wage equality in Taiwan, ensuring that women who get divorced will be able to support themselves).

It also includes fairer custody rulings - unlike the West, children in Taiwan often go to the father in a divorce as they are "his" lineage, not the mother, unless she can "prove fault". Awarding majority custody to the more capable parent is the better solution.

If Justice Hsu's comments are accurate, that buy-in doesn't exist yet, even if there is a consensus on decriminalization.

So, honestly, we're not there yet. But this is a step in the right direction for women in Taiwan as well as Taiwan as a liberal democratic country.

Oh yes, one final punch. For those of you who think the DPP is just as bad as the KMT, I ask: do you think this would have ever happened under a KMT administration? The KMT, whose "young", "reformist" chair (lol - he is neither) voted strongly against same-sex marriage - not the same as criminalized adultery but also a marriage/gender-related issue that is a litmus test for liberal thought?

Of course not. The two parties are not the same. Neither is faultless - no party is, not even the "ideological purists" like the NPP - but one is clearly worse than the other.

You may not love the DPP, and you may not care for Tsai's cautious, quiet, sneaking-up-on-you tactics, but more has been done for liberalism in Taiwanese society under Tsai than any other president and certainly any other KMTer. It will never be all you hoped for, but the country marches ever forward. 

Tricked Into Divorce (no, not me)

A friend sent me this the other day: it's a document translated in Chinese, Japanese, English and several Southeast Asian languages asking foreign spouses at the registration office filling out divorce paperwork if they agree to get a divorce.






Apparently, the police require this for all foreign divorces in Taiwan now, as it is too common for a Taiwanese spouse (usually male) who wants to divorce (usually a Southeast Asian woman who can't read Chinese) to take her to the local housing registration office saying they have to "fill out some paperwork", perhaps saying it's about some unrelated thing, and then divorcing her without her knowledge.

While it's not so easy in Taiwan for someone to divorce their spouse if that spouse doesn't agree, these 'trick' divorces made it look like the wife agreed - after all, she signed the paperwork without complaint. If both spouses agree, the process of legal divorce takes less than half an hour (in terms of splitting assets, I have no idea).

Once the divorce is final, the foreign spouse - again, usually a woman who doesn't speak or read Chinese - has 48 hours to leave the country. No time to demand access to assets or other support. Possibly no time to even go to the bank, if she has a bank account in her own name, which she likely doesn't. No realistic way to take any children with her. She's out, she gets nothing, quite possibly returning to a life of miserable poverty, and he gets a clean break and to keep everything. It is extremely difficult if not impossible to fight for a fair division of assets once out of the country, and as far as I know there is no legal way to apply to stay on such short notice (though I'm not sure about that, and if there were, it's not clear that someone who can't read Chinese and might not even have her own transport would be able to access it.)

This is absolutely evil, that goes without saying. It is wrong. It cannot be tolerated.

The good news is that the Taiwanese government got its act together (that happens sometimes!) and put together this form, which is now standard with foreign divorces. Unless the spouse is illiterate - in which case I suppose an interpreter would be necessary and locating one on short notice would pose other problems - it clarifies for the soon-to-be-erstwhile foreign spouse what is happening. 

If in fact she is being tricked, she can then refuse to sign the divorce papers, which buys her time and therefore better access to legal services to fight for assets and custody. She's not left penniless on a plane back to her country of birth without so much as the chance to give family there (if she has any) advance notification to expect her.

This doesn't solve every problem with the rules surrounding foreign spouses: if you knowingly divorce or your spouse dies and you were unable to obtain an APRC (or just had not done so) - keeping in mind that the men who marry Southeast Asian women may not meet the required income threshold for her to get an APRC, if she even knows that's an option - you also have few options for staying in Taiwan, and that's not right.  However, it deals with a massive issue many of us had no idea existed. It materially improves an issue facing foreigners - especially foreign women - in Taiwan.


One thing that helps with this is that the document itself is very simple - one easy-to-understand question and very simple choices of answer (so if there is some ability to read but overall literacy level is not high, it should still be comprehensible), which shows sensitivity to the situation of these women. It might seem to us that any foreigner who comes to Taiwan would be literate in their own language, but when it comes to women brokered through the marriage industry (and it is very much an industry) here, that's not guaranteed to be true. 

I don't often say this, but good job, Taiwanese government. You did the right thing.

Divorce and Family Dynamics in Taiwanese News

This has nothing to do with the post. I just like the photo.

I know this China-style forced-eviction-and-demolition in Shilin is the big news across Taiwan, or at least Taipei, this weekend (for the record, I'm all in favor of kicking out Hau Lung-bin, just as much because he's an idiot generally as because of this), but another article caught my eye.

This one on a woman in Banqiao whose request for a divorce on the grounds that her mother-in-law egregiously violated her privacy was denied is the one that I've been mulling over.

This is a perfect example of why no-fault divorce should be legal everywhere in the world. I'm not entirely familiar with Taiwan's divorce laws. I know they used to be ridiculously sexist (a man could leave his wife if she refused to move with him for his work, but a wife couldn't leave her husband over his refusal to move for her work, the idea being that a wife should move for her husband's career but not the other way around) and have since been somewhat reformed, but I'm not sure to what extent. Clearly no-fault divorce with only one spouse consenting to divorce is not permissible, or else this woman would have gotten one.

What bothers me is that the court didn't think that the mother-in-law unlocking the couple's bedroom door at all hours of the night to "check on them" was sufficiently emotionally distressing or a violation of privacy. That says a lot about the power of mothers-in-law (especially the husband's mother) in Taiwan, and yes, while a case could be made that a court might have said the same to a man whose wife's mother was doing the same thing, it's hard not to see this ruling as a sexist one. It makes it quite clear that in the court's eyes, a wife needs to just deal with nosy mothers-in-law, and not listening to objections and having a spouse who does nothing to stop his own mother is not enough reason to terminate a marriage.   

I feel that, well, how could any court possibly be the final decision maker regarding what is and is not intolerable stress or privacy violation? What court has the right to tell you that you must or must not stick it out in a bad marriage based on your circumstances? No court - that's a very personal decision and I don't believe it's something a third party can rule on.   

That said, the wife sort of made her own bed: her husband did offer to send his mother back down south to live, and the wife apparently refused, thinking that others would judge her poorly.

I just wonder why they didn't change the bedroom door lock and not give the mother-in-law a key. I also wonder what the mother-in-law hoped to accomplish. If it was the propagation of grandchildren, barging in on them at random times was obviously not the way to go about it!

It's surprisingly common not just for couples to live with one set of parents (usually the husband's) or near them, or to feel pressured into visiting them every single weekend, or to even give in to in-law pressure to procreate - which, from a cultural standpoint, horrifies me, but it's not my culture. Plenty of Taiwanese people I know seem horrified that my sister lives in Taiwan, I have a spare room, and yet she does not live with me and my husband. Of course, to us, it's perfectly natural that a 25-year-old single woman living abroad with her own set of friends and her own life would want the independence of her own place or roommates her age - to them, it's how can you make your sister live alone like that, all by herself like she's in prison, and paying so much for rent?! Ha. Haha. Well.         

It's also fairly common for the in-laws to have a set of keys to your apartment and to visit unannounced whenever they please, and objecting is not allowed or socially condoned. I love my parents and in-laws, but no. Just no.

And all this ruling says is that:

 a.) A woman's unhappiness in her marriage is not her own decision. She can basically be told that her feelings are "wrong". (A man could be told this too, but somehow I suspect that a lack of initiated-by-one-spouse no-fault divorce means the law is in favor of men, and that husbands would be more likely to be granted the divorce;

b.) A woman has no right to the final decision of what is unbearable in a marriage if it can't be proven to be abuse, adultery or something else that could instigate divorce with fault;

c.) Mothers-in-law have the right to make their childrens' spouses miserable (especially wives);

d.) Taiwanese society doesn't seem to expect the husband to stand up against his mother for his wife.

All of these point to a sore spot of continued sexism in Taiwan that could be easily fixed with single-spouse initiated no-fault divorce. No need to prove anything, no need to obtain consent, if you want out, you can get out. I would trust those who exercise that option to do it wisely and with much forethought and attempted reconciliation, but in the end I'd respect their decision based on their experience in that marriage. I don't feel anyone has the right to rule on that for them. Male or female, but women are especially hurt by a lack of such a divorce provision.

But, ah, the power of mothers-in-law...

I'm reminded of an incident a few weeks ago when we were running to catch a train to Ruifang to take my in-laws to Jiufen - the next train wasn't for another hour and, due to an issue with my EasyCard, we were about to miss this one. It was far down on the track from where we entered - local trains don't take up the entire platform - and my mother-in-law couldn't possibly have run that far that quickly due to health issues. I went flying up the platform to the attendant, who tried to usher me on-board, and with fake tears in my eyes (I'm a very good actress, apparently) I bawled that we needed to be on this train because I was taking care of my mother-in-law who was visiting Taiwan, oh please sir, would you please help me make sure we get on this train?! *sniff*.

And you know what? He held the train. He kept it on the platform for at least 1-2 minutes longer than it should have been just so we could all make it onboard and not have to wait for the next one. 

I highly doubt he would have done that for two young people (although two whippersnappers such as Brendan and myself could have just made it at a sprint). But for a (foreign) mother-in-law, hold that train!!

Similarly, while they were here our water heater crapped out. I called a plumber on Saturday morning. He said he'd be there "in an hour or so".
"Oh no, but my mother-in-law is here!"
"Oh. In that case, I'll come immediately!"