The law and the spare spouse

PUBLISHED : Thursday, 02 February, 1995, 12:00am
UPDATED : Thursday, 02 February, 1995, 12:00am

LEGISLATOR Mr Eric Li must be thanked for a new hobby which is amusing people of a slightly legal turn of mind. When you have finished The Times crossword you can derive a good deal of entertainment from drafting the Mainland Floozies (Suppression of Second Homes) Bill 1995.

Mr Li is no doubt right in supposing that many Hong Kong men are maintaining second homes, complete with spare spouse, in China. I do not doubt also that there are cases in which this situation causes great unhappiness to the Hong Kong family of the man concerned.

What is surprising is Mr Li's effrontery in supposing that he and his colleagues can change this by passing legislation.

When God engraved. 'Thou shalt not commit adultery' on a fragment of Mount Sinai it was already, I imagine, customary for long-distance chariot drivers and galley-masters to have a wife in every port.

Certainly it has been customary ever since. If large numbers of men are presented with the opportunity to keep a mistress out of sight of their first wife then a good many of them will make such an arrangement.

And the Chinese tradition in these matters is, frankly, polygamous. Multiple marriages were perfectly legal in Hong Kong until the 60s. Some of the households then formed are still with us.

I suppose that putting your mistress permanently in a flat or village house has now become a prerogative of the very rich, because Hong Kong property is so expensive, if you have a pretext for regular visits to China then this problem is solved.

Other people have to settle for stolen nights of passion in Kowloon Tong hotels, with the anxiety that other people may be digging their potatoes on the other nights.

The usual victim in these arrangements, actually, is the mistress. The wife may go cross-eyed with jealousy but it is not customary to resolve the problem with a divorce. The marriage will last as long as she is prepared to put up with it.

The mistress, on the other hand, has no control over the situation and may at any time be traded in for a more recent model.

Clearly we have here a situation fraught with all sorts of possible unhappiness. If we are to believe the social workers there is also a large cost to the public purse in supporting on social welfare the families of men who have become so besotted with their popsies in the People's Republic that they no longer support their official spouses.

Now before we go rushing to the law draftsman let us please remember that a good subject for legislation requires more than a recognised social evil or an unwelcome public expense.

The first of these other requirements is that the evil against which we wish to legislate can be defined in legal terms in a way which makes practical and ethical sense. The second is that this evil is amenable to repair by the remedies the law provides.

The first of these is going to be Mr Li's big problem. We are not (or so I hope, at least) going to make adultery illegal. Adultery is easy to define but too popular a pursuit to be a feasible target. Even the keeping of mistresses is difficult to deal with.

At what point does a mistress become kept? We cannot have the ludicrous situation that a man commits an offence if he tells the Other Woman in his life to refrain from other liaisons, but goes free if he tells her to sell her body in Temple Street when he has no use for it.

Nor, I think, can we ban the keeping of mistresses in China. There is a manifest injustice in saying that an activity is legal in Sai Kung but illegal in Shenzhen.

What Mr Li has in mind, presumably, is an offence along the lines of failing to support your family in Hong Kong while you are supporting another one elsewhere. But this sounds horribly difficult to prove, especially as our police cannot operate in China. In fact this would be more of a deterrent to 'second families' in Hong Kong.

And having arraigned our offender, what are we to do with him? The choice is to diminish his capacity as a breadwinner with a fine or expunge it altogether by putting him in jail.

Mr Li's sensitivity to social problems does him credit but it would be better deployed elsewhere. Men have always taken mistresses. Perhaps they always will. At any rate it will take a higher authority than the Legislative Council to change this.