Taiwan in time: down with the provisions on “father’s rights first”

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Until 1996, fathers always had priority in custody disputes; Constitutional Interpretation No. 365 changed that

  • By Han Cheung / Journalist

Sep 20 to Sep 26

During Liang Chiu-jung’s (梁秋蓉) three-year bitter legal battle with her ex-husband’s family, her youngest son was the only thing that kept her going. But in 1993, her husband’s family, who were caring for their eldest son, suddenly requested custody.

Although in the 1990s, article 1089 of the Civil Code still stipulated that in the event of disagreement between both parents on how to exercise parental rights over a minor, the father had the right of final decision. There was also article 1051, which granted custody by default to the father in the event of divorce.

Photo courtesy of Public Domain Pictures

After losing the first lawsuit, Liang quit her job, left her parents’ home, and went into hiding with her son. Although the judge in the second trial invoked a new clause in the Child and Youth Protection Act (兒童 及 青少年 福利 法) and sided with Liang, the husband’s family swore to appeal.

In July 1994, Liang and her divorced mother Chang Pei-chun (張佩君) brought the matter to the Constitutional Court with the help of attorney and future justice minister Lo Ying-shay (羅 瑩雪).

The Council of Grand Justices issued Constitutional Interpretation No. 365 on September 23, 1994, ruling that Section 1089 was unconstitutional and was to be amended within two years with other similar provisions.

Photo: Chu Pei-hsiung, Taipei Times

“The solution to this problem must be foreseen on the basis of the principle of gender equality and the best interests of the child,” said the interpretation.

It was the first interpretation by the great judges to declare the inequality of the sexes unconstitutional. However, like the more recent fight against same-sex marriage, the government took its time and waited two years to make the mandatory changes.

The women’s groups were not happy with the two-year deadline, and were also upset that they had not provided any immediate means to help Liang, Chang, and other mothers in the same situation.

Photo courtesy of Wikimedia Commons

“These laws have tormented women for 63 years, and top judges should not allow this to last for another two years. We’ve had enough, ”the Awakening Foundation (婦女 新知 基金會) said in response. “This law is just the tip of the iceberg; the whole part of the Civil Code on family law needs to be overhauled.

FAILED MODIFICATIONS

Section 1089 and other related laws, enacted in 1930 when the Chinese Nationalist Party (KMT) still ruled China, were products of another era. And despite the 1947 Constitution of the Republic of China (ROC) guaranteeing gender equality before the law, these dinosaur provisions continued to exist even after the advancement of the women’s rights movement in the 1980s.

In 1975, the government invited experts to consider how to update the Civil Code’s section on family law to better reflect modern values ​​in a changing society. The process took about 10 years, but critics found that the new version still supported outdated patriarchal notions.

Founding member of the Awakening Foundation and former lawmaker of the Progressive Democratic Party Yu Mei-nu (尤 美女) writes in a 1999 report that the 13-person committee that made these changes included only one woman, and that lawmakers reviewers also included only one female.

One of the problems, Yu writes, was that many people, including women, still believed that the law should stay out of family matters and that maintaining (shallow) family harmony was always more important than womens rights. Family finances, for example, remained in the husband’s control because lawmakers feared that joint management would lead to more conflict.

“But society was changing rapidly in the early 1990s. The support system of a large family had collapsed and the nuclear family was also changing. Divorce rates were skyrocketing, domestic violence was rampant, and affairs were frequent, ”Yu writes.“ In addition to the problems with single-parent households and financial management, it was evident that the changes were inadequate. “

Along with the Warm Life Association (晚晴 婦女 協會) and other women’s groups, the Awakening Foundation began in 1990 to proactively tackle these unequal laws, particularly Section 1089, which has been dubbed the provisions relating to “father’s rights first” (父 權 優先 條款).

Women’s groups spent three years drafting a new family law bill in May 1993 and launched a heated campaign to promote the idea across the country and push lawmakers to act. During a campaign of petitions in March 1994, they obtained more than 10,000 signatures in one day and then marched to the Constitutional Court to express their views on equality to the newly appointed senior judges. of the sexes.

SYMBOLIC VICTORY?

In May 1994, Chang went to Lo’s office to make a will that would leave her property to her daughter and nothing to her husband. She told Lo her story, which involved more than a decade of physical and emotional abuse as well as legal disputes. Eventually, her husband decided to divorce her and claim custody of their seven-year-old daughter – whom Chang mainly raised – under Section 1089.

Like Liang, Chang went into hiding with her daughter, who was adamant that she wanted to stay with her mother. After finding out that her husband had two more children out of wedlock, she sued him and enlisted Lo’s help as well.

Lo had previously worked with Liang and asked if Chang wanted to join them in asking for a constitutional interpretation of Section 1089.

According to the Justice Reform Foundation’s Great Justices Give an Explanation (大法官, 給 個 說法) book, Chang was initially shocked, because she never even thought the law could be unfair. After talking to Lo, she quickly agreed.

Although Chang and Liang got what they wanted from the Grand Judges, they did not take advantage of it due to the two-year waiting period. In March 1995, students from 11 university groups declared: “If the Civil Code is not changed, we will not get married”, but progress remains slow. Liang’s husband sued her for kidnapping their son, but the charges were later dropped.

As Chang and her husband were still married, they both retained parental rights over the child, unless she could prove that her husband had abused those rights. As Chang refused to divorce, she lost the case. In 2002, her daughter turned 20 and declared Chang and her relatives to be her only real family, and transferred her household registration from her father’s house to Chang’s.

“Although Interpretation 365 did not turn the tide and improve our situation, we believe that many other unhappy women like my mother can benefit from it and retain custody of their beloved children,” the daughter says. of Chang in the book Grand Justices.

Taiwan in Time, a column on the history of Taiwan that is published every Sunday, highlights important or interesting events in the country that either have birthdays this week or are linked to current events.

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