Saturday, March 23, 2013

Divvying up the loot

Governments are on a slow path to recognizing alternate forms of marriage from the 'classic' definition.  Obviously gay marriage is the big one today but there are other small steps being made; in BC common law marriage is being upgraded to being exactly the same as official marriage.  The biggest difference is the 50/50 split of assets accrued during the common law marriage but spousal support and pension benefits are pretty important too.

I have seen some people complaining about this law as being good for con men/women who can get into a relationship and then demand half of their partner's stuff down the road but I think that sort of objection is utterly ridiculous.  For starters a confidence game that lasts a number of years and which is worth nothing if detected 18 months in seems like an unlikely proposition.  Not only that but this only matters if you can't get the mark to marry you; if you can manage to live with them for years at a time is it really so unlikely that you can't get a ring on your finger?

Really this is just a good step to protect people who have children in a common law relationship, particularly if one of them ceases working to raise the children.  After a breakup it is going to be difficult enough raising children alone without the added burden of a career that is broken or nonexistent and having no support.  While I went about getting married officially I don't think that there is any particular reason to enforce that.  If people want to get married, great, but we should strive to arrange things so that the people in a position of power (those with good careers in common law relationships) cannot abuse their position and leave their former partner out in the cold.  There is no need for an official marriage to be required to protect the vulnerable.

This got me thinking about polyamorous relationships and how complex marriage law can be when you consider them in the mix.  It is a little complex but certainly not impossible to imagine a cohesive set of laws for 3+ people marrying each other all at once but situations where 1 person is involved in several separate marriages are potentially insanely complicated to work out (graph theory applications!) and adding common law recognition into the mix is nutty.  If you have a married couple with a roommate who they sleep with, is the roommate part of their marriage as common law 2 years in?  Complicated!

While I would love for polyamorous marriages to be part of the law every time I sit down to figure out exactly how it would work I end up with a bunch of impossible problems and no answers.  I guess my hacked together solutions might be better than the current nothing, but making laws on the premise of 'well, this probably isn't worse than what we have...' isn't a great starting point.  If anyone knows of somebody who has worked this out in a coherent fashion I would love to read about it.


  1. Interesting Sky, the only attempted answer exists here in Canada of all the countries on the planet :)

    Read the section relating to Saskatchewan in the Wikipedia article.

    And there are others who have talked about it as well. You can find one example here:

  2. The government shouldn't really be involved in marriage at all... but there are good reasons for the government providing a limited civil union basic package. And as far as that goes, there's no need to go beyond the complexity of one mutual partnership. More than that is just asking for abuses and legal complications, and is very hard to codify... its simply not worth it to try, because if people want to express a more complicated relationship, where say you want to transfer some of the rights to a third person in a more complicated relationship, the legal framework is already there to do things like transfer power of attorney or next of kin or whatever.

    A basic government civil union package is a convenience, the simple version is all that they really should need to produce... complex relationships (being in a union with more than one other person) should go to a lawyer and get things spelled out explicitly so that everyone knows who has what rights. If there's a market for specific complex packages, law offices will specialize and make the packages for them, which is all that's needed... it's not like getting a civil union from the government is that special a deal, most of the issues people have with the subject come with religious marriage, and the government is supposed to stay out of people reasonably exploring their spiritual side. The government interface should always be as simple as possible... the government shouldn't have to worry about how a new tax code might be exploited if a company decides to force all its employees to be married into a single union. The legal system can build off that.

  3. bwross: I completely agree that the government should not be involved in marriage ceremonies. Ideally they would provide a simple framework for civil unions and leave the word marriage out of it completely so that all of the religious folk can do what they like within their own communities. As long as people who go through a marriage ceremony and think they are officially married are in fact officially married (which is currently the case, see the Marriage Act) things are fine on that front.

    You are right that the government trying to regulate all possible union arrangements is crazy - hence my inability to come up with any kind of useful system. People can go to lawyers to write up their agreements if they want so technically the government doesn't *need* to do step in. However, I think there might be some kind of middle ground where the government provides a template for a marriage with more than 2 people in it and leaves any of the more exotic arrangements up to the individuals in question and their lawyers.

    There isn't a huge need for this, I think, but it would be nice to have. What I feel is important is to formally end the current situation where polyamorous marraige is a criminal offence. Criminalizing consensual agreements or sexual behaviour is completely nuts and serves only to cause systemic problems for already marginalized minority groups.

  4. A lot of marriage law comes up from the common law. I'm pretty sure the example of child support, for instance, arose from the fact that before there was any law, judges would award a parent raising a child support from the other parent based on the common understanding that we have an obligation to our children. The reason child support exists in law (in Ontario, anyway) is to deal with the problem of arbitrary awards - how much child support your child gets was completely dependent on what judge you got.

    I don't know whether I think there is a good reason to make common-law pretty much the same as marriage. I do think there is a good reason to make the difference or similarity between common-law and marriage be what most people tend to expect it to, and in many cases family law courts would probably make rulings that aligned with public expectation.

    I think this is the big problem with 3+ partner marriages - there isn't a public expectation, not even an amorphous evolving one. It's one thing when judges are a decade behind the times (they are, after all, old), but when the BC Supreme Court can uphold the polygamy laws based on the idea that polygamy hurts women and children - it's clear that they don't even have a model of polygamy in their heads so they latched onto the one put in front of them. If polygamy were made legal for all we know the first polygamous marriage could be between three gay men; it's hard to see which women or children would be hurt. (Using polygamy = multiple partner marriage because of the criminal code even though it's the wrong word)

  5. Oh, by the way, the current polygamy laws are totally bonkers. 1) It is illegal to assist in a ceremony that sanctions a polygamous relationship; 2) In order to prove polygamy in court, they don't have to prove that you had any kind of marriage ceremony or that you ever had or intended to have a sexual relationship.

    So basically it's criminal to be involved in a relationship that looks like polygamy to a prosecutor.

  6. Yeah, the poly situation isn't likely to change soon... it would be seen as support for the exploitative polygynous cults, because those are the most front and center in the general public's mind when the topic comes up. It's far enough outside the Overton Window to be political suicide. It's really in the hands of the courts to deal with the current laws and deal with things reasonably.

    But getting back to what the government should allow as far a civil union benefits go, personally, I don't think they should really require ceremony or a sexual relationship. Essentially, it provides a number of benefits like extending kinship to some one outside of your family as well as allowing two adults to form a household with shared resources. Which is why I like to point out the Kate and Ally situation. Why shouldn't people in a situation like in that sitcom be prevented from gaining some type of civil union and the benefits from it if they want to? They're sharing an apartment and their resources for the benefit of raising their children as single mothers... the fact that they're not sexually involved with each other shouldn't matter so much. They probably don't want a "til death" deal, but they should be able to gain many of the protections and benefits of at least common law marriages while the two families are living together.

  7. I don't think a ceremony or a sexual relationship should be a requirement of some kind of civil union, I'm just a little galled that the criminal laws surrounding polygamy don't require the state to prove either. Reading that law I wonder what the state actually has to prove, other than that they disapprove of your lifestyle, to convict you of polygamy.

    Really, I'm just shocked that anyone charged anyone with polygamy. If it wasn't for Bountiful, polygamy would likely continue to be technically illegal for a long time, which would justify governments not having to answer question about pensions and taxes. When that gets to the Supreme Court of Canada it is very hard to believe they don't strike down the polygamy law which will be rather awkward when we suddenly need answers to the questions Sky posed.