If it's broke, break it some more...
Sometimes I despair of Britain's top legal minds. When faced with a messy compost heap of confusion and absurdity in relationship law, how should it best be tidied and rationalised? Why, by shovelling on another pile of confusion and absurdity.
I refer, of course, to the apparently willfully perverse proposals by the Law Commission that various legal 'protections' should be applied to cohabiting couples, giving them certain rights and claims in the event of the relationship ending.
The consultation paper freely acknowledges the many obvious difficulties in creating such a scheme. Shouldn't people have the freedom to remain uncommitted? Would the scheme be opt-in or opt-out? How would cohabitation registration differ from marriage? How should 'cohabitation' be defined? (One of the suggested criteria is whether the couple are in a sexual relationship - how would they check?)
The Commission admits that the essential issue it is trying to address is the unfairness that arises when couples falsely believe themselves to be in a 'common law marriage', and one of them (usually the woman) suffers disproportionately when the relationship ends.
The well-documented cases of mis-informed women losing their homes and being left with nothing when the father of their children leaves are certainly tragic. And we are not the first to suggest that public education is needed to ensure that no-one labours under the delusion of common law marriage any longer.
However, the Commission believes that public education will not be enough to prevent such cases where the financially stronger partner refuses to enter into marriage, civil partnership, or any kind of independent legal agreement on the ownership and division of assets.
This may well be true. But a 'partnership' that endures when one person has asked for legal protection and the other has refused it is clearly not a paragon of loving intimacy. Such a relationship is likely to be complex, problematic and mired in social and sexual inequality. These situations are sad and difficult, and we commend the impulse to ameliorate the exploited partner's situation.
However, changing the law so as to create vague and impracticable quasi-legal partnerships for the majority of couples who have freely chosen not to marry is too blunt an instrument. For every tragic betrayal such a scheme averted, it could create ten more unlooked-for entanglements. Moreover, it would make the overall legal situation more complex and less rational - reason enough to reject the proposals.
We consider that the real problem that needs to be addressed by legal (rather than educational) means, is the situation of committed heterosexual couples who want to make a legal commitment but who have principled objections to the historical, sexual and social connotations of marriage. They are the people most badly served by current partnership law, since civil partnerships are closed to them.
The Law Commission should consider addressing its concerns by proposing that civil partnerships be made universally available. This would reduce the barriers to legal commitment (by making it morally neutral and baggage-free) - ensuring that as many couples as possible enjoy the rights and protections they want and deserve.
I refer, of course, to the apparently willfully perverse proposals by the Law Commission that various legal 'protections' should be applied to cohabiting couples, giving them certain rights and claims in the event of the relationship ending.
The consultation paper freely acknowledges the many obvious difficulties in creating such a scheme. Shouldn't people have the freedom to remain uncommitted? Would the scheme be opt-in or opt-out? How would cohabitation registration differ from marriage? How should 'cohabitation' be defined? (One of the suggested criteria is whether the couple are in a sexual relationship - how would they check?)
The Commission admits that the essential issue it is trying to address is the unfairness that arises when couples falsely believe themselves to be in a 'common law marriage', and one of them (usually the woman) suffers disproportionately when the relationship ends.
The well-documented cases of mis-informed women losing their homes and being left with nothing when the father of their children leaves are certainly tragic. And we are not the first to suggest that public education is needed to ensure that no-one labours under the delusion of common law marriage any longer.
However, the Commission believes that public education will not be enough to prevent such cases where the financially stronger partner refuses to enter into marriage, civil partnership, or any kind of independent legal agreement on the ownership and division of assets.
This may well be true. But a 'partnership' that endures when one person has asked for legal protection and the other has refused it is clearly not a paragon of loving intimacy. Such a relationship is likely to be complex, problematic and mired in social and sexual inequality. These situations are sad and difficult, and we commend the impulse to ameliorate the exploited partner's situation.
However, changing the law so as to create vague and impracticable quasi-legal partnerships for the majority of couples who have freely chosen not to marry is too blunt an instrument. For every tragic betrayal such a scheme averted, it could create ten more unlooked-for entanglements. Moreover, it would make the overall legal situation more complex and less rational - reason enough to reject the proposals.
We consider that the real problem that needs to be addressed by legal (rather than educational) means, is the situation of committed heterosexual couples who want to make a legal commitment but who have principled objections to the historical, sexual and social connotations of marriage. They are the people most badly served by current partnership law, since civil partnerships are closed to them.
The Law Commission should consider addressing its concerns by proposing that civil partnerships be made universally available. This would reduce the barriers to legal commitment (by making it morally neutral and baggage-free) - ensuring that as many couples as possible enjoy the rights and protections they want and deserve.
posted by The editor at 3:37 pm
0 Comments:
Post a Comment
<< Home