Ship of Fools: Common-law marriage

Thread: Common-law marriage Board: Purgatory / Ship of Fools.

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Posted by Baptist Trainfan (# 15128) on :

The BBC has featured a report into so-called "Common-Law Marriage" which suggests that many co-habiting couples have little idea of their legal position should their relationship break down. It also suggests that some co-habiting couples feel that the legal rights of marriage should be extended to them.

Ignoring any "moral" aspects to do with what goes on in the bedroom, what do Shipmates make of this? Why is there such ignorance on this matter? Should those who choose not to marry benefit from the same legal safeguards as those who do? And why do so many couples prefer not to get married? (I have my own views but prefer not to reveal them at present!)

Posted by North East Quine (# 13049) on :

The BBC are wrong to suggest that

quote:
Common-law marriage has not existed in the UK since 1753

unless they are under the impression that Scotland is not part of the UK. Most forms of common law marriage in Scotland were abolished by the Marriage (Scotland) Act 1939, and the remaining forms by the Family Law (Scotland) Act 2006.

However, most co-habiting couples didn't fall within the definition of "common law marriage" which required the couple to live as man and wife to the extent that aquaintances (neighbours, the children's school teachers etc) thought that they were married, and the couple themselves referred to each other as husband and wife, and the wife called herself "Mrs Smith" or whatever.

Casting my mind back to lectures in the 1980s, it sometimes applied to couples who thought they were married - the couple who married on the Saturday closest to the bride's 16th birthday, when she was only 15 and 363 days old, and thus underage - that sort of thing. I suspect that sort of honest mistake is less common now.

The difficulty is giving rights to co-habiting couples is the sheer variety in the extent of commitment in such relationships. The couple themselves may have different views on how committed the relationship is. At least with marriage, the couple can be assumed to agree that theirs is a long term, fully committed relationship.

It was a minefield when it existed in Scots Law; there is a reason it was abolished.

Posted by Curiosity killed ... (# 11770) on :

Apparently a lot of the problem, so current publicity, is around Sharia Muslim marriages the nikah, which require a civil marriage to make them legal.

Posted by North East Quine (# 13049) on :

That is exactly the sort of situation which used to be covered by Common Law Marriage in Scotland, where the couple themselves regarded themselves as married.

Posted by Curiosity killed ... (# 11770) on :

One of the discussions I heard around this was that Muslim men were aware that they were not legally married and preferred to remain that way. It's also in one of those articles. A couple of reasons: divorce becomes as easy as saying "I divorce you" (threefold), and more than one marriage is possible.

Posted by North East Quine (# 13049) on :

The man and the woman disagreeing was the main issue in Scotland, too. Typically a court case would involve the woman saying that she regarded herself as married and producing various witnesses - the woman in the corner shop, her daughter's Brown Owl, etc, all of whom confirmed they had thought the couple were married, and then the man saying that he had never regarded himself as married, that the woman had called herself "Mrs Whatever" simply to stop people from asking questions and so on.

There were several types of Common Law Marriage in Scotland - declaration in front of witness, promise subsequente copula, and habit and repute.

Promise subsequente copula covered the case of a woman who had had sex on the basis of a promise of marriage; if she fell pregnant the marriage was deemed to exist. It was usually used if a man died before he could marry his pregnant girlfriend - dozens, if not hundreds of children were legitimised in this way after their fathers died in the First World War. Much harder to prove if the man was alive and denying ever having proposed.

Posted by Baptist Trainfan (# 15128) on :

This is very fascinating but - at the risk of sounding rude - might we get back to the contemporary questions I posited, as they apply to the "secular" (or even "Christian") majority of the population?

The Muslim answer is one I hadn't heard, or even thought, of - so thank you.

[ 27. November 2017, 11:36: Message edited by: Baptist Trainfan ]

Posted by North East Quine (# 13049) on :

I think the contemporary problems are likely to be the problems that existed previously; a couple can regard their relationship differently during the relationship, or, in retrospect, when they are splitting up. One might claim that they were living together in a relationship both regarded as permanent, were planning to have children etc, the other might claim that it was only ever a casual relationship.

If there is a large disparity in the property each brought into the relationship, if it breaks down then the wealthier partner is likely to want to minimise the relationship.

If either, or both, halves of a co-habiting relationship have children by a previous relationship, then declaring the existence of a Common Law marriage effectively disinherits the children. Some couples choose to live together rather than marry specifically because they don't want to potentially disinherit their children (I gather this is not unusual in the case of older couples who both have property, have been widowed or divorced and have adult children and grandchildren.)

Posted by North East Quine (# 13049) on :

I have no idea why there is such ignorance on the lack of protection for co-habiting couples, though.

I do think that should be more widely known.

Posted by L'organist (# 17338) on :

This hoary old chestnut is re-cycled roughly every five years, and has been since at least the late 1970s.

Why this crazy foolishness about "common-law marriage" - its not as if there is such a beast as a "common-law divorce" or a "common-law will".

I fear the answer is that people - mainly, but not exclusively, women - fail to apply any sense, common or of another type, to the situation. It should go without saying that if you go through some type of formal, legal, ceremony then you are married - and if you don't then you aren't.

Either later today or tomorrow we'll get the latest manifestation of the "story" which is that there are legions of women who view "marriage" as a paternalistic construct and trap and who demand the right to have a civil partnership. IMO these calls should be resisted at all costs - surely since the widening of "marriage" to include people other than heterosexuals civil partnerships are redundant: after all, does anyone now really care that you can rock up to your local town hall, sign a book and be "registered"?

If anything is to be done about this non-story, perhaps it is to ensure that schoolchildren are informed that common-law marriage is a myth as part of their PHSE curriculum.

Posted by Curiosity killed ... (# 11770) on :

I think a lot of people start by cohabiting and the big white wedding becomes an unrealistic dream. I have met people who were holding a big baptism celebration for their children rather than a wedding and said something similar.

The big white wedding is such an expensive and unrealistic dream for so many people and it seems to be required to get married, so people put that off. I've come across a few couples who had a small wedding who have had huge celebrations for their silver wedding - a church blessing and reception - to make up for the original wedding not satisfying the photo album.

I also have met people who are comfortable with their cohabiting relationship and feel that marrying their partner will change that relationship, and not for the better. One of those couples has now split up, with the man now with a new partner, the other couple is still happily together.

Posted by no prophet's flag is set so... (# 15560) on :

It exists in some provinces in Canada. It may be the same as marriage legally or be unrecognized. Depends on where you live.

Posted by L'organist (# 17338) on :

Yes, I know, but even in those provinces that recognise some form of "common-law marriage" it doesn't make any difference to the legal position with regards to the split of assets in the event of a breakdown, there is no right to support from a partner, and it doesn't give legal protection to the children of any "common-law" union.

This last in relation to children is especially important everywhere: in the UK it matters not how long you are together if you have children: unless you are named as the father on the birth certificate you will have a very tough time getting access to them in the event of break-up or death of the mother. I know of a chap whose "common-law wife" died after 20 years and 4 children together: within 6 weeks of her death he'd lost his home and access to his children.

Posted by North East Quine (# 13049) on :

Out of curiosity, why hadn't he put his name on his children's birth certificates?

There's no advantage for a man in having the father's name left blank on a birth certificate. It means the man has no rights, but he can't opt out of responsibilities, because a DNA test will prove paternity if he is being sued for maintenance.

Obviously, if he was married his name would automatically be included in the birth certificate.

Posted by la vie en rouge (# 10688) on :

quote:
Originally posted by L'organist:
Either later today or tomorrow we'll get the latest manifestation of the "story" which is that there are legions of women who view "marriage" as a paternalistic construct and trap and who demand the right to have a civil partnership. IMO these calls should be resisted at all costs - surely since the widening of "marriage" to include people other than heterosexuals civil partnerships are redundant: after all, does anyone now really care that you can rock up to your local town hall, sign a book and be "registered"?

The French equivalent of a civil partnership (a pacte civil de solidarité or PACS) is available to both same sex and opposite sex couples. They offer some, but not all the same legal rights as marriage. I’m not sure, but I think that more straight than gay people are pacsé these days: it appeals to people who are not keen on the idea of marriage per se but want to make sure that e.g. their partner wouldn’t end up homeless if one of them died. This seems to work quite well for people who want a minimum of legal protection.

Posted by ExclamationMark (# 14715) on :

Whatever allowed people to think there was such a thing as "common law" in the UK in the first place?

Wishful imagination?

As to the big white wedding thing, it isn't necessary. 2 witnesses and a Registrar is all you need. Perhaps it's more about the churches and everyone else seeing it as a money spinner: we do weddings for free!

Posted by North East Quine (# 13049) on :

Originally posted by Exclamation Mark:

quote:
Whatever allowed people to think there was such a thing as "common law" in the UK in the first place?

Wishful imagination?

Not wishful thinking but four years studying Scots Law at University, 2 years legal traineeship, and working as a solicitor.

If you want to find Common Law in the UK, head for the northmost part of the U.K, although I understand that the Scottish concept of Common Law differs from the concept in England. In Scotland, Common Law is law that has not been codified, but has developed over the centuries from legal precedent.

[ 27. November 2017, 15:32: Message edited by: North East Quine ]

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by Baptist Trainfan:
Why is there such ignorance on this matter?

Have you met your fellow humans? Ignorance is more a standard than knowledge.

quote:

Should those who choose not to marry benefit from the same legal safeguards as those who do?

Throughout most of human history, cohabitation was marriage. Property and religious control were the main drivers of a formal recognition. To me, the answer should be yes, but NEQ rightly points out the complications of this.

quote:
Originally posted by L'organist:

I fear the answer is that people - mainly, but not exclusively, women - fail to apply any sense, common or of another type, to the situation.

I fear the answer is that people, - mainly, but not exclusively, men - fail to apply responsibility, reasonable or any other type, to the situation.

Posted by Leaf (# 14169) on :

quote:
Originally posted by L'organist:
Even in those provinces that recognise some form of "common-law marriage" it doesn't make any difference to the legal position with regards to the split of assets in the event of a breakdown, there is no right to support from a partner, and it doesn't give legal protection to the children of any "common-law" union.

This is incorrect. For example, this link from the Justice Department in Manitoba states, among other things:

quote:
•If a common-law couple splits up, each partner will be entitled to half the value of the property acquired by the couple during the time they lived together, including pensions
•If one member of a common-law couple dies without a will, the surviving partner will receive all, or most, of the deceased partner's property
•If one member of a common-law couple dies, leaving a will that ignores or neglects the surviving partner, the law will override the will to ensure that the surviving partner receives his or her fair share of the couple's family property

The relevant Wikipedia article, citing the Justice Department, says:

quote:
According to Manitoba Justice, "Common-law partners who have registered their common-law relationship with the Vital Statistics Agency, or lived together and have a child together, or lived together for at least three years if there are no children of the relationship have all the same rights under the Family Maintenance Act as legally married spouses, including the right to seek spousal support."[1] [emphasis mine]

I attribute the ignorance/misunderstandings to exposure to media from many jurisdictions with many different rules about common-law relationships.

Posted by k-mann (# 8490) on :

It seems to me that if you do not want to marry the solution would have to enter into a civil union, provided that this is open for all (and not just same sex couples). To simply 'assume' that people who live together are 'commonly married' would be utterly wrongheaded (especially if the couple do not have children). How would you distinguish legally between a (romantic) couple who live together and friends who happen to share a house, a flat, etc?

Posted by Leaf (# 14169) on :

quote:
Originally posted by k-mann:
How would you distinguish legally between a (romantic) couple who live together and friends who happen to share a house, a flat, etc?

From the FAQ section of the government link:

quote:
Q I have been living with a roommate for over three years. Does the new act apply to us?

A That depends on the nature of the relationship. The act only applies to people who are living in a conjugal relationship. There is no single legal test to define this relationship, but many factors would be considered, such as:

•whether you live under the same roof

•what the sleeping arrangements are

•whether you have a sexual relationship

•whether you maintain an attitude of fidelity to one another

•whether you share household chores or perform any personal services for one another

•whether you participate in community or neighbourhood activities as a couple

•whether you present yourselves as a couple to others

Posted by orfeo (# 13878) on :

quote:
Originally posted by ExclamationMark:
Whatever allowed people to think there was such a thing as "common law" in the UK in the first place?

Anyone who has a law degree from any of the so-called "common law" countries (basically, the English-speaking world) just spit out their drink when reading this.

Posted by orfeo (# 13878) on :

The Australian position is that de facto couples have almost exactly the same legal position as legally married ones.

Having just gone through an excessively painful same-sex marriage debate/survey/exercise in delay here, the question of what marriage is actually for has come up a little (yes, only a little).

And essentially it's about ease of recognition. A de facto couple have to go through a bunch of hoops and (potentially repeatedly) establish that yes, they are a couple. A married couple get to just wave a certificate, end of discussion.

Of course, for many centuries in England the vast majority of people never went through a formal marriage ceremony. Only the nobility did that. The average folk just started living together as man and wife. So in that context, I do find it interesting when people think that legal marriage is necessary to make a couple "real". These things certainly swing over the course of the generations.

Posted by Carex (# 9643) on :

"Common Law Marriage" is an American term. I can't say why the English are confused about it, but it is easy to be confused in the US because the laws vary state-by-state, and many have changed over last century.

Generally, Common Law marriage required that the couple consider themselves to be married, and live publicly as a married couple. Generally they must also be legally free to marry, but there are some exceptions to this. (In Utah, a married person can be convicted of bigamy if they form a Common Law marriage while still legally married to someone else.)

What varies from state to state is the specific amount of time that the couple must be together before the marriage is legally recognized and various other conditions.

Most states have recognized Common Law marriage at some point, but only a handful permit them today. However, once such a marriage takes place in a jurisdiction that does (or did at the time) recognize them, it becomes a legal marriage, and is recognized by all other states.

This was convenient in less civilized areas, as a couple didn't need to wait for the itinerant preacher to come by to get married, or worry whether the preacher was really authorized, or if the paperwork got filed correctly.

I remember hearing various bits of folk lore about Common Law Marriage when I was single, in spite of the fact that California had stopped recognizing such marriages prior to 1900. But several states didn't stop recognizing them until this century, and about 9 still permit them, so friend-of-a-friend stories can keep circulating, and might be true in some states.

However, virtually every state requires that the couple agree to be married and present themselves as being married as specific requirements. While the couple might argue as to whether this really was the case, casual cohabitation without those critical parts has (generally) not been a candidate for Common Law marriage in the US.

Posted by no prophet's flag is set so... (# 15560) on :

"commonlaw" is also a Canadian term.

Posted by Carex (# 9643) on :

And Canada is in the Americas...

Posted by no prophet's flag is set so... (# 15560) on :

quote:
Originally posted by Carex:
And Canada is in the Americas...

Yankees can pretend to be Canadian when you travel. That's all you get. (only a Yank would post what you posted)

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by no prophet's flag is set so...:

quote:
Originally posted by Carex:
And Canada is in the Americas...
Yankees can pretend to be Canadian when you travel. That's all you get. (only a Yank would post what you posted)

So, Canadians get mad when people say America and excludes Canada and Canadians get mad when someone says America and includes Canada? Alrightly then.

Posted by Golden Key (# 1468) on :

"Americas" and "America" aren't the same thing.

Americas = North America, and Latin America (i.e., Mexico down to the tip of Tierra del Fuego), plus many islands. IOW, not just the US.

America = The United States of America (USA or US), including all US possessions and territories. (I'm not sure how Native American nations fit into that, because the relationship is complicated.)

The name "United States of America" goes back to our founding documents. "America" is just a short form. TTBOMK, we never kept any other country of the Americas from using "America" in their title.

Posted by Gee D (# 13815) on :

quote:
Originally posted by orfeo:
The Australian position is that de facto couples have almost exactly the same legal position as legally married ones. wife. So in that context, I do find it interesting when people think that legal marriage is necessary to make a couple "real". These things certainly swing over the course of the generations.

Indeed, under the Relationships Register Act, NSW residents have been able to register that they are are in a relationship regardless of sex since 2010. I don't know exactly the position in other states but from memory it is much the same, perhaps even agreed identical legislation. I can't remember the title of the preceding legislation in NSW, and don't have the time to check, but it dealt with resolution of property disputes between non-married couples. Again, sex was irrelevant, it was the existence of the relationship that gave rise to the claim.

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by Golden Key:
"Americas" and "America" aren't the same thing.

Americas = North America, and Latin America (i.e., Mexico down to the tip of Tierra del Fuego), plus many islands. IOW, not just the US.

America = The United States of America (USA or US), including all US possessions and territories. (I'm not sure how Native American nations fit into that, because the relationship is complicated.)

The name "United States of America" goes back to our founding documents. "America" is just a short form. TTBOMK, we never kept any other country of the Americas from using "America" in their title.

The use of the word America to mean the US has sparked annoyance from Canadians here on SOF in the past.
Just wondering what yanked np's chain.

Posted by Golden Key (# 1468) on :

lB--

Yes. I was trying to make that point to several people.
[Angel]

There's definitely been trouble before, and even worse. There was a Hell thread that veered into "America" territory. Someone--IIRC, not even from the Americas--got really upset and insulting. I spoke up, saying more or less what I said here. Also that AFAIK, no other country of the Americas had "America" in their official title, unless on a very old deed or something. Erin piped up and confirmed that. IIRC, some folks were surprised at the truth.

Posted by Curiosity killed ... (# 11770) on :

quote:
Originally posted by Baptist Trainfan:
The BBC has featured a report into so-called "Common-Law Marriage" which suggests that many co-habiting couples have little idea of their legal position should their relationship break down. It also suggests that some co-habiting couples feel that the legal rights of marriage should be extended to them.

Ignoring any "moral" aspects to do with what goes on in the bedroom, what do Shipmates make of this? Why is there such ignorance on this matter?

See above - across the English speaking world there are a number of different forms of common law marriage, which confuses people.

quote:
Should those who choose not to marry benefit from the same legal safeguards as those who do?

In lots of places across the English speaking world they do.

quote:
And why do so many couples prefer not to get married? (I have my own views but prefer not to reveal them at present!)

I gave some reasons above.

Posted by orfeo (# 13878) on :

quote:
Originally posted by Golden Key:
"Americas" and "America" aren't the same thing.

Americas = North America, and Latin America (i.e., Mexico down to the tip of Tierra del Fuego), plus many islands. IOW, not just the US.

America = The United States of America (USA or US), including all US possessions and territories. (I'm not sure how Native American nations fit into that, because the relationship is complicated.)

The name "United States of America" goes back to our founding documents. "America" is just a short form. TTBOMK, we never kept any other country of the Americas from using "America" in their title.

The fact that you think it works that way does not mean that everyone else, particularly people in the Spanish speaking part of "The Americas", necessarily agree with you.

In fact even the Wikipedia article on The Americas doesn't agree with you, containing several footnotes within the first sentence to show that what you are asserting is not in any way a universal view.

The whole idea that it's a plural because it's 2 continents is simply not how it's regarded in much of the world.

https://en.wikipedia.org/wiki/Continent#Number

[/tangent]

[ 28. November 2017, 09:10: Message edited by: orfeo ]

Posted by North East Quine (# 13049) on :

From the OP:

quote:
And why do so many couples prefer not to get married?

There are many reasons, and this is one of the problems of common law marriage.

For example, there are couples who are cohabiting as a stage in their relationship, and will marry when they reach the stage of planning or having children. Common law marriage is irrelevent to them as they will probably co-habit for only one to five years before marrying.

Then there are those who don't want to get married until they can have the big wedding, but the years slip on and other things (house deposit, children) take precedence. This is the group for whom common law marriage would be relevent.

Then there are those who are opposed to marriage for practical (e.g. inheritance) reasons, or ideological (marriage is a construct of the patriarchy) reasons, or because a previous marriage ended badly and they want to do things differently next time round. This is the group for whom common law marriage would create difficulties.

Of the co-habiting couples I know, there are several of my children's generation who fall into the first category and one of my generation who falls into the third category (i.e. not marrying to keep the woman's property separate so that her children by her first marriage will inherit). I don't actually know anyone who is in the second category.

Posted by Gee D (# 13815) on :

quote:
Originally posted by North East Quine:
From the OP:

quote:
And why do so many couples prefer not to get married?
There are many reasons, and this is one of the problems of common law marriage.
marriage would be relevant.

Of the co-habiting couples I know, there are several of my children's generation who fall into the first category and one of my generation who falls into the third category (i.e. not marrying to keep the woman's property separate so that her children by her first marriage will inherit). I don't actually know anyone who is in the second category.

Under the current provisions of the Succession Act here, which continue the philosophy of the 1916 Testator's Family Maintenance Act, the partner may very well have a claim on the estate. He would have to satisfy various tests to do so, but the failure to remarry
by itself would not bar a claim.

Posted by no prophet's flag is set so... (# 15560) on :

Of course I take Delores on this. The term American means USAian. The poster of this knows. Just as I know that England means Wales and Scotland. [brick wall]

Posted by Augustine the Aleut (# 1472) on :

quote:
Originally posted by no prophet's flag is set so...:
It exists in some provinces in Canada. It may be the same as marriage legally or be unrecognized. Depends on where you live.

When on the verge of superannuation, I was sent on a very nice 3-day pre-retirement workshop in Montréal (with some excellent financial planning sessions, so I urge everyone to take the retirement course before they are 30). Among many topics was the place of the spouse, and we were run through the ten jurisdictions on the common law question, as it's not entirely identical. In sum, common law exists, and it's more or less the same as married, except in Québec, where the status of common law does not exist. As the notary told us, in Québec, without marriage or civil partnership status, you are just very good friends (although you can go to law to claim spousal property rights). This caused a melt-down in the workshop, as one of the couples there had been under the impression that they were common-law married, verge-of-tears ensued, and we suspended the session while the workshop leader calmed them down.

My clergy contacts tell me that the majority of those getting married have co-habited for several years. A Latin married deacon I know who runs marriage courses in the Archdiocese of Ottawa (married deacons are favoured for running marriage courses in many places) tells me that likely the majority of those in his classes have been living common law for at least two years. He said that there's as much point in being strict on this as there is on rebuking university students for an insufficient focus on maintaining their virginities. He did tell me that many of the common-law couples in his classes are surprised to learn that their status, as far as obligations and rights go in Ontario, do not change with marriage.

As far as the American question goes, there is no solution. Pierre Berton wrote that Canada was the loyal part of America, and the US was the other part. There were 15 colonies and some left; others stayed. Everyone on the planet who is not of Loyalist background thinks otherwise. Nothing can be done about it. It's like the broadcasters speaking of England when they mean Britain.

Posted by Kitten (# 1179) on :

quote:
Originally posted by no prophet's flag is set so...:
Of course I take Delores on this. The term American means USAian. The poster of this knows. Just as I know that England means Wales and Scotland.

England does NOT mean Wales and Scotland

[ 28. November 2017, 14:52: Message edited by: Kitten ]

Posted by Baptist Trainfan (# 15128) on :

I'm afraid it does to many non-Brits - as in "And what part of England is Scotland in?" [Mad]

(Please note where I'm writing this from, by the way: see below).

[ 28. November 2017, 15:05: Message edited by: Baptist Trainfan ]

Posted by la vie en rouge (# 10688) on :

quote:
Originally posted by North East Quine:
(i.e. not marrying to keep the woman's property separate so that her children by her first marriage will inherit). I don't actually know anyone who is in the second category.

Could this not be avoided by making a will?

FWIW, French inheritance law privileges children over spouses. To ensure that I don’t end up destitute if my husband dies before me, we need specific notarised deeds donating our common goods to the last survivor of the marriage. Failing that, the children of his previous marriage can turn me out of the house. Once we’re both gone, the children still get a large part of what’s left.

Posted by Crœsos (# 238) on :

quote:
Originally posted by la vie en rouge:

quote:
Originally posted by North East Quine:
(i.e. not marrying to keep the woman's property separate so that her children by her first marriage will inherit). I don't actually know anyone who is in the second category.
Could this not be avoided by making a will?

Depends on the jurisdiction. Some jurisdictions will invalidate a will that disinherits (i.e. leaves a bequest lower than a certain percentage of the estate) a spouse. It does seem like the kind of thing pre-nuptial agreements were made for, however. The two situations where a pre-nuptial agreement should be considered a necessity are a) where there are children from another marriage/relationship whose interests need to be protected and b) where one of the spouses is a part-owner of a family business.

Posted by no prophet's flag is set so... (# 15560) on :

quote:
Originally posted by Kitten:

quote:
Originally posted by no prophet's flag is set so...:
Of course I take Delores on this. The term American means USAian. The poster of this knows. Just as I know that England means Wales and Scotland.
England does NOT mean Wales and Scotland

Which was an ironical head bang wall pain chainsaw my arms off circumcise my forehead comment wasn't it.

Posted by quetzalcoatl (# 16740) on :

Irony is a dying art.

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by quetzalcoatl:
Irony is a dying art.

People no longer know what the word means much less it use.

[ 28. November 2017, 16:55: Message edited by: lilBuddha ]

Posted by Carex (# 9643) on :

This discussion might be better off in Purg since it doesn't address Dead Horse issues.

It may be easier to address the original question if we use a term such as "cohabitation" rather than "Common Law Marriage", as the latter has several different legal definitions, as well as varying interpretations in general use. While the specific laws (current and previous) in England, Scotland, Australia, France, Canada and the various States of the US may all address parts of the issues, each may be based on different assumptions, situations, and legal frameworks.

Why do couples choose not to get married? Usually I don't ask, because I assume it is none of my business, but the following are some of the ones I know of personally, mostly for older couples:

1) A prior divorce impoverished both litigants, and they don't want to go through that again.

2) One high-income couple figured it would cost them $30,000 a year in higher taxes, and they would rather spend that money traveling. That was about 30 years ago, and since then the US tax laws have been changed to eliminate the "marriage penalty".

3) Some source of income (retirement, government benefits, insurance payments, alimony, inheritance, etc.) or property rights would be terminated if a person remarried.

4) One partner has significant debt or potential legal liabilities, and not being married shields the assets of the other partner from possible claims.

5) A spouse of one partner suffers from dementia, mental illness, is in a coma, or has some other condition such that they are in a long term medical care facility and is unlikely to recover. For example, a man whose wife has advanced Alzhimer's may have moved on to a new relationship (possibly with the wife's encouragement as she realized her condition), but the wife is still dependent on his insurance to pay for her care.

By the time a lot of folks are in their 70's and older, they are much less concerned with what others think about their living arrangements, while they are more likely to have long term issues of insurance, retirement, benefits, etc. They are also more aware that any new relationship they establish might not last very long, due to death or ill health rather than lack of commitment. A disabling illness can wipe out the retirement savings of both partners if they are married. For such people there may be little advantage in being married.

Posted by Louise (# 30) on :

This isn't a Dead Horse and I'm going to have to try to move it to Purgatory on my phone which may not work. Please don't post here till I get it shifted.
Thanks
L
Dead Horses Host.

Posted by Louise (# 30) on :

Aha - it worked! Post away.

Posted by Leorning Cniht (# 17564) on :

quote:
Originally posted by Carex:

It may be easier to address the original question if we use a term such as "cohabitation" rather than "Common Law Marriage", as the latter has several different legal definitions, as well as varying interpretations in general use.

But it is the legal consequences that are at question.

Basically, the question is how the law should treat me if I set up home with a romantic partner. Should the law treat us as de-facto married, or something similar (and so grant me some kind of automatic inheritance rights, next of kin status and so on) or should it treat us as single (and so not imperil the pension I get from my deceased spouse, and so on.) And should the act of moving in with someone for mutual comfort and regular nookie automatically have legal consequences?

The reality seems to be that, in most jurisdictions, it is some almost random combination of both, which works out either to my favour or against it depending on my particular circumstances.

[ 29. November 2017, 03:50: Message edited by: Leorning Cniht ]

Posted by Golden Key (# 1468) on :

Re "Americas" and continents:

I've started a "Continents" thread here in Purg, and copied our discussion over. That way, we won't derail this thread.

Posted by Boogie (# 13538) on :

quote:
Originally posted by k-mann:
It seems to me that if you do not want to marry the solution would have to enter into a civil union, provided that this is open for all (and not just same sex couples). To simply 'assume' that people who live together are 'commonly married' would be utterly wrongheaded (especially if the couple do not have children). How would you distinguish legally between a (romantic) couple who live together and friends who happen to share a house, a flat, etc?

Many, many marriages start out as a romantic couple and end up as friends who share a house etc etc.

Posted by Carex (# 9643) on :

quote:
Originally posted by Leorning Cniht:

quote:
Originally posted by Carex:

It may be easier to address the original question if we use a term such as "cohabitation" rather than "Common Law Marriage", as the latter has several different legal definitions, as well as varying interpretations in general use.
But it is the legal consequences that are at question.

Basically, the question is how the law should treat me if I set up home with a romantic partner. Should the law treat us as de-facto married, or something similar (and so grant me some kind of automatic inheritance rights, next of kin status and so on) or should it treat us as single (and so not imperil the pension I get from my deceased spouse, and so on.) And should the act of moving in with someone for mutual comfort and regular nookie automatically have legal consequences?

The reality seems to be that, in most jurisdictions, it is some almost random combination of both, which works out either to my favour or against it depending on my particular circumstances.

Which is exactly why I was looking for a different term, so we can discuss how we think the law should treat people rather than the differences among the current legal implementations that use the term to mean very different things. (A critical difference is that in some places the term only applies to couples who want to be married, while in others it applies to any couple shacking up together.)

One could argue that collecting a widow's pension while cohabiting with a new man friend is a form of fraud, since the intent of the pension company was that the widow wouldn't need it if she had a replacement man to take care of her. But a counter argument might be that such a limitation on a pension is outdated anyway, and the widow is abiding by the rules, even if the situation wasn't considered when the pension plan was designed, possibly half a century ago. A complete solution very well may require changes in areas other than just how long-term cohabitation is treated.

An added wrinkle is the "community property" concept that applies in some of the States in the US whose original legal system came from Spain: each spouse owns half of the income of the other during the time they are married. So you have "community property" assets held jointly in addition to the separate property of each spouse prior to the marriage (or later purchased with separate money). On one hand, I think it is a fair way to treat a married couple (that is the we have handled all our finances, even after we moved out of a community property state) but for someone with a high salary it could mean a lot of money owed to a former partner for a few months of cohabitation if the same law applied to such relationships.

In the general case, the concept of automatic legal recognition of a cohabiting couple who specifically doesn't want to get married is one I haven't encountered until reading this thread about the laws in Canada and Australia. I can see a benefit to having some provision for children if not already covered under other laws, but, given the quirky and widely varied nature of our romantic relationships, I'm not sure how or when it should apply. Certainly a good topic for discussion!

Posted by Alex Cockell (# 7487) on :

quote:
Originally posted by Leaf:

quote:
Originally posted by k-mann:
How would you distinguish legally between a (romantic) couple who live together and friends who happen to share a house, a flat, etc?
From the FAQ section of the government link:

quote:
Q I have been living with a roommate for over three years. Does the new act apply to us?

A That depends on the nature of the relationship. The act only applies to people who are living in a conjugal relationship. There is no single legal test to define this relationship, but many factors would be considered, such as:

•whether you live under the same roof

•what the sleeping arrangements are

•whether you have a sexual relationship

•whether you maintain an attitude of fidelity to one another

•whether you share household chores or perform any personal services for one another

•whether you participate in community or neighbourhood activities as a couple

•whether you present yourselves as a couple to others

SO the flipside is - if you are Friends with Benefits, or another form of casual arrangement, you have to basically present the entire look and feel of what TRP/MRA/MGTOW would call a "pump and dump".

Sex == marriage all over again? Gets confusing out there..

Posted by Cathscats (# 17827) on :

NEQ said..."Then there are those who don't want to get married until they can have the big wedding, but the years slip on and other things (house deposit, children) take precedence. This is the group for whom common law marriage would be relevant."
She then said that she didn't personally know any couple in that category.

As a minister in a scenic part, I have met many of them. Many couples who come to me, from outside the area, who want a Highland wedding have been together and saving up for this for years. Others begin to make arrangements and then cancel because they can't afford it. I am always at pains to remind them that it is not the marriage they can't afford - just the small fee to the registrar to issue the schedule is needed - the church doesn't charge, and I may not on pain of I don't know what! But it is all the other stuff that people think a wedding needs that is so expensive.
And may I say that televised Royal weddings and their hype don't help dispel this myth. Also films. Also the fact that people plan a wedding for so long these days, that they are prey to any idea that crosses their path during that period, so that what may have begun as a fairly simple wedding grows arms and legs.

Posted by Cathscats (# 17827) on :

Hosts, please help and delete the post above, having trouble with things this morning....

Posted by Erroneous Monk (# 10858) on :

I think the answer is that it is complex. In England, while living together as if you were spouses does not necessarily give you the rights and obligations of marriage, the fact that you have chosen *not* to marry will not necessarily prevent/protect you from having *some* of those rights and obligations, but it will be a matter of judgement as to how the law should be applied.

So if you want clarity then either:
(1) marry; or
(2) remain un-married and take legal advice about what, if any, contractual agreements can be put in place that will enhance your chances of being able to enforce on each other the degree of rights and obligations you do actually intend to have towards each other.

Posted by Enoch (# 14322) on :

quote:
Originally posted by Carex:
"Common Law Marriage" is an American term. ...

No it isn't. Common law marriage was rendered void in England and Wales by Lord Harwicke's Marriage Act of 1753. It did not apply to Scotland and it did not apply to marriages of Quakers or Jews. As it was before the Irish Act of Union, I assume it didn't apply to Ireland.

It was designed to bring to an end a self-evident mess. It was largely successful. The mess was 'who was married to whom?' and 'who was obliged to what?'. A person could in good faith marry someone and then it turn out that somebody else could claim they were already married to them, either by a clandestine marriage by a dodgy clergyman, or by some casual ceremony involving words uttered, possibly in jest. There were dodgy clergymen who got some sort of subsistence performing clandestine marriages in pubs in London.

To return to the actual issue of this thread, as a retired lawyer, It's my unequivocal opinion that the law on this should not be changed. Either you are married, or you are not. If you are not married, you have neither acquired the rights that go with marriage nor incurred the obligations. Whatever the reason for not being married, whether high principle, laziness, a desire to get out of it easily if you want to or lack of agreement between you and your so-called spouse, shouldn't make any difference. People ought to be entitled to know what commitments they have and do not have. It's sloppy thinking and sentimentality to think otherwise. Whatever the Beeb and sundry campaigners may claim I also don't think there are many people who don't actually know that - however much they may protest otherwise.

To put it simply, if you are living tally, you are free to leave at any time, but so is your partner. If you are married, neither of you is. Likewise, if you are living tally, you have no material claim on her/him and she/he has no material claim on you beyond the terms of the tally, if there are any.

Changing the law would recreate much of the mess Lord Harwicke's Act was designed to end. It's as real an issue now as it was then.

Many of the disadvantages that used to apply with children of unmarried couples no longer do - though I happen to know by repute of someone who will not inherit an honour when his father dies because his parents have lived together domestically for many years as though married, but aren't.

Having said all that, though, I do think the law of England and Wales should recognise and enforce ante-nuptial contracts, as virtually every other jurisdiction in the world does. For generations it has recognised that those created by foreign marriages under regime are binding. I can't see any good reason why the same shouldn't apply to marriages in this country. I don't accept the specious reason why they aren't.

North East Quine, what is the position of Scots law on ante-nuptial contracts?

Posted by Enoch (# 14322) on :

quote:
Originally posted by Carex:
.... An added wrinkle is the "community property" concept that applies in some of the States in the US whose original legal system came from Spain: each spouse owns half of the income of the other during the time they are married. So you have "community property" assets held jointly in addition to the separate property of each spouse prior to the marriage (or later purchased with separate money). On one hand, I think it is a fair way to treat a married couple (that is the we have handled all our finances, even after we moved out of a community property state) but for someone with a high salary it could mean a lot of money owed to a former partner for a few months of cohabitation if the same law applied to such relationships. ....

Carex, once you've married under community of property, wouldn't that follow you for the rest of your married life and thereafter in affecting what you can leave by will and what you can't? Or doesn't that apply in the USA?

If you marry under community, do you get a choice as to how it will operate and have to declare that at the time of the marriage? And does this vary by state? In many countries that have community, you have to choose whether it will apply to everything, including inheritances, or only to what you acquire during the marriage.

Posted by Gee D (# 13815) on :

quote:
Originally posted by Enoch:

quote:
Originally posted by Carex:
"Common Law Marriage" is an American term. ...
To return to the actual issue of this thread, as a retired lawyer, It's my unequivocal opinion that the law on this should not be changed. Either you are married, or you are not. If you are not married, you have neither acquired the rights that go with marriage nor incurred the obligations. Whatever the reason for not being married, whether high principle, laziness, a desire to get out of it easily if you want to or lack of agreement between you and your so-called spouse, shouldn't make any difference. People ought to be entitled to know what commitments they have and do not have. It's sloppy thinking and sentimentality to think otherwise. Whatever the Beeb and sundry campaigners may claim I also don't think there are many people who don't actually know that - however much they may protest otherwise.

To put it simply, if you are living tally, you are free to leave at any time, but so is your partner. If you are married, neither of you is. Likewise, if you are living tally, you have no material claim on her/him and she/he has no material claim on you beyond the terms of the tally, if there are any.

Changing the law would recreate much of the mess Lord Harwicke's Act was designed to end. It's as real an issue now as it was then.

North East Quine, what is the position of Scots law on ante-nuptial contracts?

As a lawyer not yet retired, I agree. The possibilities here of impermissible marriage are very limited. So those who want the benefits of marriage can do so. (I except of course same-sex marriages, but the necessary legislation for that is at long last on its way through Federal Parliament.) If they choose not to marry, why should all these consequences flow? The problem is that the various legislatures have seen fit to impose these.

Posted by Curiosity killed ... (# 11770) on :

There are some recent cases where women are claiming compensation even though they were not married:
Denise Brewster won the right to claim her partner's pension in February 2017.
Jakki Smith has just won the right to claim compensation for her partner's death

Posted by BroJames (# 9636) on :

The reason for the ignorance is easy. First of all England and Wales has a Common Law legal system, so the term "Common Law" is current and has a meaning in that system. Secondly, there used to be such a thing as a Common Law Marriage in England and Wales, albeit abolished over 260 years ago. Thirdly, Common Law Marriages have continued to exist in the law of the neighbouring jurisdiction of Scotland until quite recently. Fourthly, the term common law marriage has (certainly until my teens and twenties) been common (albeit inaccurate) euphemistic parlance to describe couples whose living arrangements seem in all respects to be those of a married couple, but who are in fact not married.

The problems with giving the same rights to co-habitation as to marriage are likely to include defining at what point such rights may arise (How long a period of cohabitation?, What about people who begin in, say, a student house-share, but end up as cohabitees? What about intermittent cohabitation where one person has two people who think they are cohabiting with that one? What about a cohabitation which ended a couple of weeks before the death? Will that be different if a new cohabitation has begun?)

Marriage offers (or offered) a clear definition of when rights do or do not begin and end. Most of the issues could probably be dealt with by statute, but the simplest way would be to require couples to take some legal step to formally declare their commitment with some safeguards to ensure that one person isn't formally declaring that commitment with multiple others, and with some system to govern the breakdown or end of relationships to try and ensure fair dealing between the parties.

In the law of England and Wales at the moment, the only way of doing that for heterosexual couples is marriage. Civil partnerships (giving similar rights and responsibilities) and marriage both are available for same sex couples.

Posted by mark_in_manchester (# 15978) on :

This seems cloudy.

A (male) friend of mine recently left a woman with whom he has two kids. They were never married. They had effectively been 'sharing the house' together for many years while the kids grew up, FWIW - the relationship died early. He brought the kids up, worked part-time, and restored the house. She worked FT and brought in the money. Apart from the building work, they represent a traditional family with inverted roles.

The law has decided that his ex-partner gets to stay in the house with his youngest until the youngest is 18. He may leave it a year later, for reasons of youngest's education. But when the house is sold, it has been decided they both have a financial interest in it, and he will be paid out.

This is not a particularly amicable situation, and solicitors were involved. It seems at odds with the legally-informed posts above, which suggest to me that he might have had few rights due to the non-marriage?

Posted by Erroneous Monk (# 10858) on :

quote:
Originally posted by Curiosity killed ...:
There are some recent cases where women are claiming compensation even though they were not married:
Denise Brewster won the right to claim her partner's pension in February 2017.
Jakki Smith has just won the right to claim compensation for her partner's death

Indeed. So if I were living with someone and had intentionally not married them, as I wished to avoid having such obligations, I'd be taking a risk. I would imagine there are legal agreements that can be put in place that confirm that neither party intends such obligations to arise. Of course if either party does intend such obligations to arise, they'd better marry (or put a legal agreement in place confirming that it is their intention that it is there intention to confer those rights on the other party).

Posted by orfeo (# 13878) on :

quote:
Originally posted by Enoch:
Changing the law would recreate much of the mess Lord Harwicke's Act was designed to end. It's as real an issue now as it was then.

I'm not entirely convinced by this, because my first thought is that our ability to gather records and evidence about these things is far greater than it was several centuries ago.

Having said that, having a bright line is admittedly simpler. No matter how much the evidence for working out who is or is not a couple has become, a single piece of paper, a marriage certificate, will always be simpler.

Gee D says that Australian jurisdictions have seen fit to impose obligations. The thing is... in my view de facto couples were largely recognised because that's what a lot of de facto couples wanted. Not all. But a lot. Many people did not think they ought to be required to go through a formal ceremony before they would have any rights.

And in the case of same-sex couples, until now it was the only form of recognition that was open to them.

Posted by Jane R (# 331) on :

mark in manchester:

quote:
This is not a particularly amicable situation, and solicitors were involved. It seems at odds with the legally-informed posts above, which suggest to me that he might have had few rights due to the non-marriage?

If he lived in that house for years and contributed to its upkeep (by doing restoration work on it) that may have given him some rights. Also, if they bought the house as a couple they might have owned it jointly or as tenants-in-common?

Posted by BroJames (# 9636) on :

First, the law tends to protect the right of the children of a relationship to a home, and that includes that adult who has care of them. When the youngest child becomes an adult then the law looks at how it is right to share the property between the parents.

The first thing that will be looked at is the legal title to the house. Joint ownership implies an expectation that each is entitled to a share in the house, and that will not necessarily be overturned by the fact that only one has actually paid the mortgage. Even if there is no joint ownership as such, the court may recognise the interests of the partner who is not named as the owner. There is a useful overview in this PDF from Shelter

Posted by North East Quine (# 13049) on :

Originally posted by Enoch:

quote:
North East Quine, what is the position of Scots law on ante-nuptial contracts?

They are enforceable, provided they are fair and reasonable, and there is no suggestion that either party was coerced into signing, or hadn't understood the full implications. Ideally both parties should have independent legal advice before signing such an agreement. Post-nuptial agreements are also possible.

I'm not sure how much case law there has been to establish what is de facto fair and reasonable and so I'm not sure how clear cut the law is. But e.g. if the parents of one partner wished to gift a large sum of money or property to their child in anticipation of the marriage, it would be fair and reasonable for that sum of money or property to be protected in some way.

I could be wrong but I think that what is fair and reasonable might change if there were children of the marriage, or if a child of the marriage had a health condition which precluded one parent working etc.

Posted by no prophet's flag is set so... (# 15560) on :

The income tax people in Canada send out declarative questionnaires to people they determined may have lived together for 1 year in equivalent to married circumstances and then access income tax like marrieds. The province here legislated with family law to equivalent to married. It's social engineering via procedures and administrative ideas as far as I am concerned.

The issue emerges when I must introduce my child's "partner", I try to do it by name and avoid anything else, then listen my way into trouble versus talking my way in. Are these partners daughters and sons in common law?

Apparently many people think these issues are silly for me to think about, at least in my world. Because it is only about the 2 individuals. The former idea of families and parents supporting the relationship in any formal manner is passé. Marriage becomes "mom, dad we are moving in together". The family acknowledgement is "how nice!". And never ever ask anything about it. The tax thing I mentioned above is the only necessary formal part.

[ 29. November 2017, 12:39: Message edited by: no prophet's flag is set so... ]

Posted by Augustine the Aleut (# 1472) on :

No Prophet raises an interesting question. I am now of an age where my friends' once cheerful toddlers are now setting up households where they share dishwashing chores and beds with others. I have noticed on a few occasions how "my daughter's boyfriend/girlfriend" becomes "my daughter's partner" after a year, then gets introduced as "my daughter/son-in-law" a little while later.

Mentioning this to one of these friends, he noted that, after the child hits 16, there's not much to be done about it, but the wise father will make sure that chores are allotted to the new family member, so as to lighten his own load and provide him with amusement.

Posted by Felafool (# 270) on :

ExclamationMark wrote:

quote:
As to the big white wedding thing, it isn't necessary. 2 witnesses and a Registrar is all you need. Perhaps it's more about the churches and everyone else seeing it as a money spinner: we do weddings for free!

I agree that the big white wedding thing is not mandatory.

I disagree that it is about churches seeing it as a money spinner.

To get married in a Registry office will cost you about £120 in UK

To get married in C of E church the costs are fixed nationally at around £450 - 500 depending on whether it is your parish church or not. This fee includes registration and reading of the Banns, which otherwise would be charged by the Registry Office. (optional extras such as bells, choir, organist, vergers, maybe heating etc may incur additional costs)

Other churches will have their own fees (or not as ExclamationMark suggests), but you will have to pay £120 to the Registrar to get the wedding registered.

Most people pay more each year to keep a car on the road. so I don't see these costs as exploitative in any way. IMHO It's the outfits, flowers, limousines, receptions/parties, honeymoons, etc which are the moneyspinners, and totally un-necessary in terms of giving a recognised legal status to a relationship.

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by Felafool:

I disagree that it is about churches seeing it as a money spinner.

Of course it is designed to bring in more money than it costs. It damn well should be if the church is economically and socially responsible.

quote:

IMHO It's the outfits, flowers, limousines, receptions/parties, honeymoons, etc which are the moneyspinners, and totally un-necessary in terms of giving a recognised legal status to a relationship.

Yes, these are the expectations which can be prohibitive.

Posted by Felafool (# 270) on :

quote:
Originally posted by Felafool: I disagree that it is about churches seeing it as a money spinner.

lilBuddha wrote
Of course it is designed to bring in more money than it costs. It damn well should be if the church is economically and socially responsible.

I don't disagree that churches should cover costs but I might take issue about whether they need to make a profit in order to be economically and socially responsible.

Staying on the topic, I don't consider Registry office fees to be 'moneyspinners' as they have to cover costs of providing a legal service.

Similarly, the nationally fixed fee for C of E weddings takes this approach since by law it has to provide marriage services and have the resources to support that provision.

I repeat my view that the real moneyspinners are all the non-essential add-ons that society/culture deems appropriate to mark the occasion.

Posted by Og, King of Bashan (# 9562) on :

I was taught in my first year of law school that common law marriage was historically, in a way, a pretty good protection for women. If you lived on the plains with a man, had a few kids, and acted as if you were married, but never had time to get an actual certificate, it would be pretty easy for the man's family to swoop in after his death, call you a squatting whore, and kick you out to fend for yourself. Common law marriage gave you a fighting chance to have a court stop this, and have the land pass to you.

I have also seen it misused in nasty fights between adult kids and stepmoms / girlfriends (depending on who you ask).

So it's a mixed bag in my estimation, but still probably a good protection for vulnerable women in some circumstances.

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by Felafool:
I don't disagree that churches should cover costs but I might take issue about whether they need to make a profit in order to be economically and socially responsible.

Not profit, which has a meaning beyond gathering more in than what is spent.
But responsible for any organisation is recovering immediate costs plus a small amount to cover inflation and unforeseen future costs. This is being economically responsible in that is is less of a burden than asking for additional funds when a new need arises.
The social bit was a though to subsides those who might have a hardship with the basic fees. However, on second thought, it mightn't be wise to encourage marriage if that amount is a barrier. In most cases, IMO.

Posted by Enoch (# 14322) on :

quote:
Originally posted by orfeo:
I'm not entirely convinced by this, because my first thought is that our ability to gather records and evidence about these things is far greater than it was several centuries ago. ...

It isn't just a matter of the records and evidence. If whether a person is married or not, or has the rights and obligations of being married even when they haven't got married, is dependent on an assessment by a judge, rather than an event that everyone can point to, with a certificate, that engenders uncertainty in itself. A person needs to be able to know what their situation is, whether they are married or not.

Posted by Carex (# 9643) on :

quote:
Originally posted by Enoch:
Carex, once you've married under community of property, wouldn't that follow you for the rest of your married life and thereafter in affecting what you can leave by will and what you can't? Or doesn't that apply in the USA?

Only certain states, often those whose legal frameworks have a Spanish background, are "Community Property States". The laws apply to all married couples living in those states: it is based on residence rather than being a condition acquired at the time of marriage. And, being the US, of course each State has different laws and legal opinions on how they apply. (Alaska has optional community property.) The states also vary on whether community property law applies to registered Domestic Partnerships or equivalents.

I did leave out a few details in my attempt to be brief. It applies only (mostly) to earned income. Couples can maintain their own separate property / assets / money from before the wedding, and from inheritances, gifts, or the earnings from separate investments (maybe), as long as those can be kept distinct. Community Property is all income earned by either spouse during the marriage (while living in a Community Property state) and anything bought with that income. So, for example, if one spouse buys a house and makes mortgage payments out of their salary, the house is community property even if the title to the property is in their name alone. This extends to some work benefits as well: a work pension plan, for example, is community property to the extent that the couple were married during the employment. Very often in a divorce such a plan has to be split into separate benefit plans for each spouse, or an equivalent plan provided for the other spouse. Basically, everything acquired during marriage is assumed to be community property unless it can be shown otherwise.

The concept, of course, is that both spouses contribute equally to maintaining the household, even if only one works. That aligns with my idea of marriage, though it can introduce a number of legal quirks. (If one spouse hides income, for example, the other spouse is still liable for income tax on half of it.)

Those interested in the minute details will find a lot of information on line, as it is a very complex subject.

Posted by Gee D (# 13815) on :

quote:
Originally posted by orfeo:

quote:
Originally posted by Enoch:
Changing the law would recreate much of the mess Lord Harwicke's Act was designed to end. It's as real an issue now as it was then.
Gee D says that Australian jurisdictions have seen fit to impose obligations. The thing is... in my view de facto couples were largely recognised because that's what a lot of de facto couples wanted. Not all. But a lot. Many people did not think they ought to be required to go through a formal ceremony before they would have any rights.

And in the case of same-sex couples, until now it was the only form of recognition that was open to them.

Fortunately that last looks about to change very soon, so we need not go down that path. What I draw issue with is the first paragraph I've quoted. Did many really think that, and why? And if they had some philosophical objection to marriage as being based upon patriarchy (or some other label) what was there to stop their taking steps to set out their rights to property and income? That only leaves such things as next-of-kin rights, which they have deliberately chosen not to take. Why should the state step in and impose obligations which the couple sought to avoid?

Posted by orfeo (# 13878) on :

quote:
Originally posted by Gee D:
And if they had some philosophical objection to marriage as being based upon patriarchy (or some other label) what was there to stop their taking steps to set out their rights to property and income?

Mostly the fact that most couples don't stroll into the offices of lawyers and say "we want to set out our rights to property and income". It's just not typical behaviour.

And that's the one big disadvantage of wanting everything to be formalised. It doesn't reflect what people actually do as they form relationships and then live them out. The conversations they have about such matters are informal and ad hoc. They don't write out contracts.

I suppose that maybe, just maybe, people WOULD be in the habit of drawing up formal statements about property and income if the law was different and word got around that the lack of formality could lead to a total lack of equity and some kind of financial ruin if the relationship ever ended. But I'm doubtful. I think mostly the law changed to reflect real-world behaviour, rather than the law creating the behaviour.

It follows that I'm skeptical about your assertions that people have deliberately chosen not to do things or have sought to avoid things. Maybe in some cases that's true.

[ 29. November 2017, 20:19: Message edited by: orfeo ]

Posted by mousethief (# 953) on :

quote:
Originally posted by Carex:
Only certain states, often those whose legal frameworks have a Spanish background, are "Community Property States".

Interesting. Washington is a community property state, but we are well out of the Spanish Zone. Perhaps it has more to do with geographical westness than Spanishosity.

Posted by Carex (# 9643) on :

quote:
Originally posted by mousethief:

quote:
Originally posted by Carex:
Only certain states, often those whose legal frameworks have a Spanish background, are "Community Property States".
Interesting. Washington is a community property state, but we are well out of the Spanish Zone. Perhaps it has more to do with geographical westness than Spanishosity.

Wisconsin is the real outlier on the map. Idaho wasn't heavily settled by the Spanish, either (though the Spanish / Mexicans sent out soldiers to try to intercept Lewis and Clark, so they certainly had interest in the region.)

But the big spread of States from Texas to California and Nevada, plus Puerto Rico, are testimony to the origins. Wikipedia traces it back through Spain to the Romans and Visgoths, or something like that. But every training on it that I attended in California described it as a holdover from Spanish Civil Law, as opposed to Common Law, though it doesn't surprise me that other progressive states have seen the benefit of it.

I think Texas is the only Community Property state that still recognizes Common Law Marriage as well.

Posted by Gee D (# 13815) on :

quote:
Originally posted by orfeo:

quote:
Originally posted by Gee D:
And if they had some philosophical objection to marriage as being based upon patriarchy (or some other label) what was there to stop their taking steps to set out their rights to property and income?
It follows that I'm skeptical about your assertions that people have deliberately chosen not to do things or have sought to avoid things. Maybe in some cases that's true.

You may be right about that. What would your answer be to a comment that they have deliberately not married?

Posted by orfeo (# 13878) on :

quote:
Originally posted by Gee D:

quote:
Originally posted by orfeo:

quote:
Originally posted by Gee D:
And if they had some philosophical objection to marriage as being based upon patriarchy (or some other label) what was there to stop their taking steps to set out their rights to property and income?
It follows that I'm skeptical about your assertions that people have deliberately chosen not to do things or have sought to avoid things. Maybe in some cases that's true.
You may be right about that. What would your answer be to a comment that they have deliberately not married?

I don't know. Mostly because I don't have sufficient knowledge of the extent to which the law allows people to "contract out" of the default position of de facto couples.

I suspect that family law is perfectly happy to respect the wishes of couples that have actually made some kind of arrangements (though really, how does family law even get involved unless there is a dispute?). But I also think that a number of areas, such as social security, would simply tell a couple that they were, in fact, living together as a couple and would be treated as such. Especially if treating them as 2 single people would cost the government more.

Posted by Gee D (# 13815) on :

Here's a link to an example from this evening's reading. It's pretty obvious why the parties could not marry (roll on the amending Act in the Representatives!) and how these problems can crop up unexpectedly. The comment that the Applicant may well have succeeded to the entirety of the NSW estate shows the extent to which statute has changed the succession position already.

But overall, the case shows all the more reason why people should take steps to regularise their non-married relationship.

Posted by orfeo (# 13878) on :

quote:
Originally posted by Gee D:
But overall, the case shows all the more reason why people should take steps to regularise their non-married relationship.

The question, though, is what is the preferable default position when they don't?

No default position is perfect. But there has to be one because, no matter how much you might encourage people to regularise their relationship, they won't. To use that example, Succession Acts (whether the current one or much earlier ones that probably didn't recognise de facto relationships to the same degree) exist precisely because people don't make wills.

Nor do they make provision for other kinds of problems like relationship break-ups. Or if they do, the actual break-up causes people to want to change the provision.

So there has to be a way of dealing with the mess. The question is simply, what is the better way of dealing with it.

Posted by Enoch (# 14322) on :

quote:
Originally posted by orfeo:
... I suspect that family law is perfectly happy to respect the wishes of couples that have actually made some kind of arrangements (though really, how does family law even get involved unless there is a dispute?). ...

Not in England and Wales it isn't. Until very recently, unless it was a landed settlement of the sort that have been dying out over the last century and a half, any such agreement was classed as unenforceable, contrary to public policy, immoral and seen as an attempt to oust the future jurisdiction of the courts.

There's been some movement on this in the last few years, but the courts still take the line they are entitled to ignore any such agreement if they don't like any of the potential consequences.

Posted by Gee D (# 13815) on :

Orfeo, two points very quickly.

The Succession Act in NSW started the Wills Probate and Administration Act, obviously covering much more than intestacies. It did not come into existence precisely to cover those who did not make a will. It does that and much more, even ignoring the provisions incorporating what was once the Testators' Family and Maintenance etc Act.

As to your concluding question, the answer is that legislation should do nothing. Other acts cover relationship breakdowns, formation of new relationships etc. There is a wide range of choices and I'd say let people make their own choice. Even deciding to make no choice between legislated possibilities is itself a choice.

Posted by Twilight (# 2832) on :

quote:
Originally posted by Curiosity killed ...:

The big white wedding is such an expensive and unrealistic dream for so many people and it seems to be required to get married, so people put that off.

It's not required at all. A few friends and family, some finger foods and a homemade cake is more than enough. My husband and I just asked our respective best friend and immediate family and it's lasted 38 years so far.

It amazes me to hear couples with children together say they "aren't ready," to get married. I would think the father, in particular, would want to have a legal marriage in place before his child was born.

Posted by orfeo (# 13878) on :

quote:
Originally posted by Gee D:
As to your concluding question, the answer is that legislation should do nothing. Other acts cover relationship breakdowns, formation of new relationships etc. There is a wide range of choices and I'd say let people make their own choice. Even deciding to make no choice between legislated possibilities is itself a choice.

All I think that this will do is deliver a different set of complaints and hard luck stories to the media, as opposed to the set we have now.

Posted by Curiosity killed ... (# 11770) on :

quote:
Originally posted by Twilight:

quote:
Originally posted by Curiosity killed ...:
The big white wedding is such an expensive and unrealistic dream for so many people and it seems to be required to get married, so people put that off.
It's not required at all. A few friends and family, some finger foods and a homemade cake is more than enough. My husband and I just asked our respective best friend and immediate family and it's lasted 38 years so far.
<snip>

Just to clarify - this is not my personal view; I am reflecting what I have heard from many people: that they feel that marriage requires a big white wedding. This seems more general as several people I met*, who had quiet weddings, organised huge church celebrations of wedding vows for their 25th wedding anniversaries.

* I worked as a church administrator for a couple of years. I discussed a lot of wedding and wedding blessings in that time.

Posted by Gee D (# 13815) on :

quote:
Originally posted by orfeo:

quote:
Originally posted by Gee D:
As to your concluding question, the answer is that legislation should do nothing. Other acts cover relationship breakdowns, formation of new relationships etc. There is a wide range of choices and I'd say let people make their own choice. Even deciding to make no choice between legislated possibilities is itself a choice.
All I think that this will do is deliver a different set of complaints and hard luck stories to the media, as opposed to the set we have now.

Agree. I'd rather the new batch than the present.

[ 01. December 2017, 09:55: Message edited by: Gee D ]

Posted by Callan (# 525) on :

quote:
Originally posted by North East Quine:
Out of curiosity, why hadn't he put his name on his children's birth certificates?

There's no advantage for a man in having the father's name left blank on a birth certificate. It means the man has no rights, but he can't opt out of responsibilities, because a DNA test will prove paternity if he is being sued for maintenance.

Obviously, if he was married his name would automatically be included in the birth certificate.

If memory serves it is possible for a spouse to register a child's birth on behalf of both spouses - I did so when our daughter was born - but if one is not married the father has to be present at the registration. ISTR that when my nephew was born, both my sister and her then partner, had to be present at the registration. So if someone is disorganised, can't get time off, and is innocent of the law they may not turn up and get registered.

Posted by Curiosity killed ... (# 11770) on :

It is definitely the case that if the couple are not married, both must register the birth, and sign the registration document, to have both names on the birth certificate.

Posted by SvitlanaV2 (# 16967) on :

quote:
Originally posted by Twilight:

quote:
Originally posted by Curiosity killed ...:

The big white wedding is such an expensive and unrealistic dream for so many people and it seems to be required to get married, so people put that off.

It's not required at all. A few friends and family, some finger foods and a homemade cake is more than enough. My husband and I just asked our respective best friend and immediate family and it's lasted 38 years so far.

It amazes me to hear couples with children together say they "aren't ready," to get married. I would think the father, in particular, would want to have a legal marriage in place before his child was born.

I think that because the social obligation for couples to marry has receded, there almost seems like no point in having a wedding unless you can really splash out and re-create the fairy tale romance scenario - which doesn't come cheap.

Marrying for the piece of paper has become irrelevant in most cases, especially for poorer couples. In many Western countries it seems that state support for children is more reliable than anything that an unskilled and possibly unemployed father can provide. Marriage and sometimes even cohabitation can lead to less money coming to the mother for the care of the children.

Meanwhile, there's a higher likelihood that marriages between poor couples will fail. Cohabitations are even more likely to break down, but I suppose the point is that in communities where individuals may lead chaotic lives, promising to stay in a committed relationship with one other person for the next 50-odd years seems to make very little sense.

Posted by Leorning Cniht (# 17564) on :

quote:
Originally posted by Callan:
So if someone is disorganised, can't get time off, and is innocent of the law they may not turn up and get registered.

There was a minor storm in a teacup a few years ago when it transpired that the hapless Mr. Miliband (of bacon sandwich-eating fame) had failed to register himself as his eldest son's father.

Posted by Carex (# 9643) on :

quote:
Originally posted by Twilight:

It amazes me to hear couples with children together say they "aren't ready," to get married. I would think the father, in particular, would want to have a legal marriage in place before his child was born.

It doesn't surprise me when people are hesitant to make a long-term commitment when they aren't feeling sure of themselves and their relationships. Most of us haven't received much guidance in that area - I certainly hadn't when faced with those decisions. It would be good if the same level of consideration were given to making the long term commitment of having children, but it doesn't always seem to work out that way. Relationships - and people's approaches to them, are messy...

I'm not sure why you see being married prior to the birth of a child more important to the father, however. I'm not aware of any laws in the US that would treat the child, or the father's responsibilities toward it, any differently. Did you have something specific in mind?

Regarding what aspects of "marriage" should be automatically assumed for a cohabiting couple at some point, that will also depend on having some logical and cohesive idea of how married couples should be treated differently than single people. Clearly they are in many cases, such as taxes or inheritance, but part of the greater discussion may need to be which of those really serve some purpose that is best served by limiting them to married couples.

Then I'd consider two different cases: basically "rights" and "responsibilities". The "responsibilities" would be many of the matters covered by family law: providing for spouse and children, dividing assets when the relationship breaks up, etc. This is where I can see some automatic status given to an ad-hoc relationship at some point, but it is always going to be messy because it only becomes an issue when the relationship breaks up. An important part of the law should be that the law should be fairly easy for those in such relationships to understand (if they choose to do so). That's so people can be fairly sure what their status is (unlike the couple Augustine related who discovered they really weren't married.) It also has to handle some of the common quirks of relationships: what if one person is already married to someone else?

At least here in the US, we have laws about child support issues that apply regardless of whether or not the parents were married, so mostly I see it as being about the rights of each partner when the relationship breaks up, in cases such as a man working while a woman stays home to raise the children. Obviously, every case will be different, and it is going to be messy. But it already is, as evidenced by many of the cases that find their way into the courts.

In the "rights" category would be those things where a married couple can claim some benefit that a single person can't. For example, if the taxes on a married couple are lower than on the same two single people, or the ability to cover a partner on an insurance policy. In that case I think I'd favor an "opt-in" approach. For example, my work provides discounted health insurance as a benefit to me, and I can choose to have my wife covered as well. In the last few years the insurance company has allowed unmarried couples the same coverage if they file a "domestic partner" affidavit with the company (which has no legal status with the State.) This has some minimum requirements, such as having cohabited for at least a year, and only having one certified domestic partner at a time.

Currently when I file our taxes I can choose to file jointly (as a couple) or individually. If cohabiting couples have some such ability, then let them choose a filing status that reflects how they want to see their relationship if they want to have the benefit. (There are situations where a married couple must file separately.) The couple may have to sign an affidavit, as is the case with the health insurance, but personally I'd prefer this approach - where the couple chooses what steps they are ready to take - rather than having the IRS analyzing their records to see who they think is cohabiting with whom.

How does all this affect the institution of marriage? Do we care? Is there a reason to treat marriages differently from cohabitation? Would such rules make stronger relationships, or discourage people from cohabiting before they are ready to make a commitment? Or force them to be less open about their cohabitation so they could escape some responsibilities? (I knew one couple whose house had previously been subdivided, and had two different street address, so they each used a different one to make it look like they were neighbors.)

I don't know how I feel at this point about what benefits or responsibilities should be part of cohabitation. But whatever we do, it needs to include a clear statement of what we are trying to accomplish by adopting changes to the laws. Once we agree on a purpose, we can see what changes may be appropriate to accomplish that purpose.

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