My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Friday, July 23, 2010
I wrote previously about this piece of legislation when it was still a bill and that article is still accessible on my older posts. I made some criticism of provisions in the bill at that stage or lack of them. In particular, I criticised the fact that children residing with same sex couples for whatever reason were not protected by the legislation. This is a glaring omission and one which, in my opinion, is calculated to give rise to great hardship for those who are most vulnerable in our communities.
It was argued during the passage of this bill into legislation that the two parts of this act, namely, that part dealing with same sex relationships and that part dealing with opposite sex relationships, should be separated and treated under separate pieces of legislation. I agree with that submission. Regrettably, it was not picked up. Because gay and lesbian partnerships and opposite sex co-habiting couples were dealt with in the same piece of legislation, no proper thought or debate was given to the separate problems that each circumstance essentially presents. After all, opposite sex couples can marry if they wish and with divorce available, there is little reason of a compelling nature as to why they should do so if they are so minded. If they are not so minded, why are we forcing obligations on them, that the nature of their relationship suggests they do not want. Why don’t we have an “opt in” clause rather than an “opt out” clause for cohabiting opposite sex couples who want to have rights against each other in certain circumstances. Gay and lesbian couples are in a different situation as they cannot marry under current regulations and accordingly, the lack of rights accruing in their particular relationships can give rise to injustices of a severe nature.
From a gay and lesbian perspective, the Act creates a new legal relationship of civil partnership for same sex couples who choose to register their relationship. That relationship then ends only on the death of a partner or dissolution by a court of the partnership. Once the relationship is created, the Act sets out various provisions that may be availed of by the couple should the need arise. They are discussed in more detail in my previous article and they encompass property, financial provisions and other rights and entitlements consequent on civil partnership to include provision for maintenance, protection of shared homes, inheritance entitlements and pension provisions. Similarly to separation and divorce, the orders that may be made will depend on the circumstances of each particular case and what constitutes “proper provision in all the circumstances of that case. As in divorce legislation, the Act precludes “clean break” settlements. In my view, that is a mistake and I believe that there should be provision for clean break settlements just as I believe that facility should be available in marital breakdown which it currently is not. As well as being silent on the issue of children residing with and dependent on same sex couples, the Act is also silent on the tax and social welfare treatment of such couples.
For cohabiting opposite sex couples, as well as cohabiting same sex couples, who are unmarried or unregistered, the Act will impose certain rights and obligations upon those individuals unless the couple specifically choose to opt out of these protections. Choosing to “opt out” may in the first instance presuppose that such couples are aware of these issues and secondly, it may involve the expense of consulting with a solicitor in order to understand what exactly you are “opting out “of and how you go about doing just that. I personally think “opting in” is a much fairer way of doing things as people who are concerned about these matters tend to find out their situation and will willingly incur the expense to be protected. The provisions enabling the court to make certain redress, and/or provide a safety net for cohabiting couples, in order to protect an economically dependent or vulnerable party are not as extensive as the reliefs currently available to spouses and now to civil partners. They, nonetheless, mark a significant change in the current legal position. The fact that these reliefs are discretionary ie the Judge will decide what is appropriate rather than automatic, may afford some consolation though not much I should think. Those cohabitants who have resided together for 5 years come within the provisions of the Act and two years if they have children. The Act also defines what constitutes cohabitation for the purpose of the Act and recognizes officially, Cohabitant Agreements. This means that co-habiting couples can regulate their own joint financial affairs and they can specifically opt out of the redress scheme if they so wish. Provided both cohabitants have the benefit of independent legal advice then the court will consider such Agreements to be valid and enforceable.
I have come across references in many blogs and articles that many of these provisions enabling people to “opt out” and so forth are “ unromantic”. I have already expressed my reservations about the legislation and my reason but I have little sympathy with the “romance” perspective. There is not much romance either in the divorce court. Just as it is important for couples getting married to try and get a handle on each other’s attitude to children, money, property, family, friends, loyalty, faithfulness and work to name but a few things, so too must all other couples have some understanding of each other or frequently pay a very high price. Such conversations can be used to deepen rather than weaken the relationship if they are properly handled. Collaboration offers such an opportunity as it enables delicate conversations to take place by structuring the choreography of the conversation, ensuring that the conversation takes place face to face even though each party is personally represented at the table and that it is handled by trained collaborative lawyers and mediators.