Away from Home: the Feminist Legal History of Duty to Cohabit

• Main Authors: Hsin-yun Han, 韓欣芸
• Other Authors: 陳昭如
• Format: Others
• Language: zh-TW
• Published: 2014
• Online Access: http://ndltd.ncl.edu.tw/handle/7n3wp2

碩士 === 國立臺灣大學 === 法律學研究所 === 102 === Taiwanese family law has been generally regarded as gender equal under the effort of women’s movement and their work in advocating law amendments in the 1990s. However, previous works have also indicated that the current law is weak in altering the patriarchal social reality. This study attempts to draw the development of the concept of “duty to cohabit” through examining legislative record, court decisions and newspapers. This way, we may understand the current law better, and imagine the possible amendment in a more creative sense. Starting from Japanese colonial era, I investigated the duty to cohabit reflected in the court decisions and the draft of family laws. The current Civil Code has been implemented in Taiwan since 1945, and it was first amended in 1985. This amendment made mutual agreement between the couples an exception from patrilocality, but it did not changed the practice of divorcing a wife by removing her from the domicile—this way she would be regarded as deserting the husband and therefore he would win the divorce lawsuit. Taiwanese women started their revolution in 1990s by drafting up a new amendment on family law, and mobilizing the public. This time, they argue that domicile should be decided mutually and they attempted to set up a new system for separation. Their first demand was met in 1998, but not the second, which later provoked controversy among these social movement organizations. The duty to cohabit is continuously considered as one of the natures of marriage and not challenged, even by the feminists. This belief has obscured its gender unequal impacts, making divorce difficult for the wives. The difficulty the wives face results from patrilocality that prevents them from asserting their right to divorce when they leave the domicile due to domestic violence or work. Occupying the home therefore means a better chance to divorce the other party or to prevent oneself to be divorced. In this light, making separation a cause to apply for judicial decree on divorce, could only be a limited development of women’s right to divorce. Moreover, this amendment is meant to promote “the freedom to divorce,” but not its equality between husband and wife, and in a patrilocal society, it is likely to benefit more men than women. A critical and historical analysis on the concept hereby provides us an insight into the development of law, and a chance to break the status quo.