The Dawn of the Cohabitation Era?

According to news reports, the Supreme Court recently cited a 1944 precedent regarding a concubine's claim for alimony from her husband to rule that a sixty-year-old woman is entitled to claim alimony from her long-term cohabitating, married boyfriend.

In fact, this judgment does not apply to all cohabiting relationships, but is strictly limited to de facto spouses. A so-called de facto marriage refers to a relationship that lacks the name of marriage (failing to meet the legal requirements for marriage) but possesses the reality of marriage. The criteria for determination may be based on the Directions for Handling Domestic Violence Cases by Courts, taking into account factors such as the duration and motivation of cohabitating life, the amount and sharing of living expenses, the frequency of sexual relations, the presence of children together, interpersonal interaction, and any other facts sufficient to establish a typical married lifestyle.

Various countries have clear legal regulations concerning de facto spouses. For example, many U.S. judicial precedents establish that if both parties subjectively intend to marry and publicly and professedly live as husband and wife, the relationship still produces marital effects even if formal legal marriage requirements are not fulfilled. Mere cohabitation or living together does not constitute a de facto marriage. Similarly, relevant German regulations stipulate that if a couple lives together for up to five years after marriage despite failing to meet formal marriage requirements, the marriage is still deemed valid from the beginning.

However, our country has yet to incorporate de facto spouses into legal regulations. Consequently, many couples who have lived together as married for decades without fulfilling formal marriage requirements end up with court rulings declaring their marriages null and void, leaving them unable to enjoy marital protections such as the marital property regime and alimony. Therefore, scholars have continuously proposed incorporating de facto spouses into legislation to align with social expectations and values. Yet, over the years, this proposal has consistently failed to gain favor from relevant legislative authorities.

Unexpectedly, the Supreme Court this time boldly invoked a precedent concerning husbands and concubines to affirm the legal effects of a de facto marriage. We have mixed feelings: on the one hand, we are pleased that the judiciary's forward-looking perspective may resolve numerous issues surrounding void marriages and other couples who have the reality without the name; on the other hand, comparing the woman in this extramarital affair to a concubine from 1944 and granting her a legal status similar to that of a wife directly clashes with the existing legal marital system.

Taiwanese scholars have consistently argued that if a de facto marriage involves bigamy, violates proper marital relationships, and runs counter to the principle of gender equality, there is naturally no reason to protect it. Simply put, granting legal protection must be premised on conformity with the original values upheld by the legal system or values affirmed by society (i.e., good morals). Therefore, whether the aforementioned judgment granting marital-like legal protections to an extramarital relationship—and even comparing it to early-era husband-concubine relationships—violates the legal or socially universal values of monogamy and gender equality is worthy of deep reflection.

In Taiwanese society, the cohabitating population suffering from "gamophobia" is gradually rising, with many preferring to have children out of wedlock rather than being bound by a marriage certificate. The judiciary's affirmation that long-term cohabitants may claim alimony will inevitably encourage many cohabitants to seek legal protections akin to marital relationships; this is an undeniable fact. Clearly, this judgment will not be an isolated case. The judiciary has effectively announced the arrival of the cohabitating era. Legislators should immediately define de facto spouses as affirmed by legal or socially constructed marital values and establish legislative regulations, rather than continuing to invoke 1944 husband-concubine status relationships that so severely violate gender equality, thereby resolving the widespread issues of de facto spouses existing today.

※ Published in: Liberty Times / Free Plaza