The Legislative Yuan’s Legal Affairs Bureau has introduced a 30-day cooling-off period for couples contemplating divorce, a concept already adopted by South Korea and China. Chinese Nationalist Party (KMT) Legislator Wu Tsung-hsien (吳宗憲) has supported the policy, with some speculating that the KMT was borrowing it from China. Apparently neither the bureau nor Wu considered Taiwan’s own judicial practices in family law before floating the idea.
Before 2009, mediation with the aim of reconciliation was mandatory before divorce proceedings could begin. The requirement made Taiwan the only country in which judges were obliged to provide some sort of marriage counseling to couples seeking to separate.
The system not only echoed the pro-reconciliation sentiment in Taiwan, but reflected a seeming preference for mediation as dispute resolution.
In April 2009, the legislature amended the law, recognizing that judges can settle divorce proceedings without mediation focused on reconciliation. Additionally, divorces do not have to be registered with a household registration office to take effect.
My doctoral dissertation, published in 2008, was the first large-scale attitudinal survey of Taiwanese and judges on divorce mediation, research that is relevant to the current legislative debate.
Due to the influence of traditional Chinese legal culture on Taiwan, the Japanese colonial government initially continued mediation as a mechanism for resolving major disputes. Although the colonial government was at first reluctant to invest in a Western-style judicial system, within a year of Japanese rule, such a judiciary was established.
That system allowed Taiwanese for the first time to sue in court, fostering a legal awareness of rights and the rule of law. On the contrary, mediation, especially mandatory mediation, can hinder the exercise of legal rights.
American feminist academics have argued that mandatory divorce mediation — regardless of whether it aims for reconciliation — is disadvantageous to women. In the US, mandatory pretrial mediation is by no means a tradition, and the aim of divorce mediation has never been reconciliation. In contrast, it emphasizes property division and custody issues.
I surveyed all 19 district courts in Taiwan, encompassing 400 judges, with 319 completing a questionnaire of 104 questions. The response rate was more than 80 percent, and more than 90 percent for family court judges. I also surveyed 346 Taiwanese to compare their attitudes toward divorce and reconciliation with those of the judges.
The late American legal academic Jerome Cohen, an expert in Chinese law, regarded such research an impossible task to be carried out in China. Similarly, academics in the US and the Czech Republic also considered a judicial survey of that scale impractical.
The survey found that judges’ personal views about divorce played a critical role — more than other factors such as gender or age — in their enforcement of the reconciliation policy. Gender came next. The two factors together explained 23.6 percent of judges’ tendency to enforce the reconciliation policy.
Almost 40 percent of Taiwanese surveyed cited their views on divorce and age as the main factors in their advocating for reconciliation.
Surprisingly, even among the most conservative group of judges (married men), when compared with the most open-minded of Taiwanese (divorced women who remained single after their separation), the judges were still less likely to push for reconciliation of divorcing couples. That is consistent with later evidence that showed Taiwanese were significantly more conservative than the judiciary.
That evidence includes voters in 2018 rejecting a referendum to legalize same-sex marriage. Although a significant majority opposed legalizing gay marriage, the then-Council of Grand Justices still legalized it. Additionally, citizen judges have issued harsher sentencing in criminal cases than professional judges.
When my research was conducted, district courts and judges often cited a lack of resources and staff for not pursuing reconciliation. Nowadays, marriage counseling services have become more widely available. Couples are much more accepting of counseling, and family courts have also appointed expert mediators.
The divorce rate in Taiwan has fallen since my research, and is lower than in China, even with its 30-day cooling-off period. Such a policy in Taiwan would surely add more transactional costs to divorce without obvious benefits in deterring it.
Despite the public’s general disfavor of divorce and acceptance of reconciliation, when surveys polled people on the cooling-off proposal, they generally opposed it and were concerned that it would not take into consideration reasons for divorce, such as domestic violence. Systematic surveys or polling about the policy and other marriage issues are needed before any changes are implemented. Taiwanese would not support a legal change imported from a foreign regime, imposing burdens on consensual divorce without obvious benefits.
Sandy Chou is a Taiwanese-American attorney and professor based in Southern California. She is originally from Kaohsiung.
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