Tuesday, March 11, 2008

Legal Protection for Special Relationships--irrespective of what goes on in the bedroom

Now I wonder what you think of this. As Barney Zwartz reports on his blog on The Age website, there has been a little group formed in Melbourne that goes by the rather odd title of the "Ad Hoc Interfaith Committee". It has nothing to do with me other than the fact that our Commission office was informed about it and some members have attended and we fully support its objectives. The real drivers behind the show are Rabbi Shimon Cowen and Dr Nicholas Tonti-Filippini (the latter of our John Paul II Institute for Marriage and the Family). Rabbi Cowen has provided most of the "interfaith" flavour, but it has had a reasonable support from a number of non-Catholic Christian groups. Their reason for existence is to present an across-the-board religious response to a number of bills before our State parliament regarding family and bioethical issues.

Here is their latest proposal--one that seems to strike most commentators at Barney's blog as eminently sensible. In response to the Victorian Government's proposal to set up a "relationship register" for same sex couples, the Ad Hoc Committee have called for a broadening of application by removing all references to any sexual relationship that may exist between the parties so that it can apply to any significant relationships across the board that are not protected by other means. Click here for the details and then come back and comment on what you think.

3 Comments:

At Thursday, March 13, 2008 3:26:00 pm , Anonymous Peregrinus said...

I think there’s a basic question here; do we give recognition to a couple’s relationship because they seek it, or do we give recognition to a couple’s relationship because we accept, as a matter of fact, the existence of a relationship requiring recognition?

When it comes to marriage, the emphasis of church and state is on form and ceremony. You go through a marriage ceremony, you’re married. People generally assume that a real conjugal relationship exists, and in particular that you’re having sex, but nobody actually investigates this. In fact, some married couples don’t have sex for long periods, and a few never have sex, but – leaving aside annulment for non-consummation – they are still married.

Parallel treatment suggests that if two people wish to register a civil union, we should assume they have reasons which they find sufficient for doing so, and we should recognise their union, once registered, without enquiring into exactly what is the nature of the relationship between them.

The truth is, of course, that we don’t recognise marriage arbitrarily. We accept the effect of a marriage ceremony precisely because there is a common understanding of what kind of mutual, exclusive, committed, conjugal relationship it reflects, and the consequences which flow from recognizing the marriage ceremony are in fact consequences appropriate to such a relationship – rights of support, inheritance rights, rights to make medical, etc decisions as next of kin, and so forth. Sure, a few people may get married on the strength of a relationship which doesn’t look remotely like this – I think of Britney Spears marrying an old school friend on a whim in Las Vegas a couple of years back – but this happens rarely enough that we largely ignore it, or deal with it on a case-by-case basis. And the few people who do marry on this basis fully understand that they are going to be treated in a way appropriate to a couple with a mutual, committed, exclusive, conjugal relationship, even though they don’t have one.

So I think the question is, is there a sufficient common understanding of the kind of relationship which would support a civil union? If there is, then, fine; recognise civil unions between any two people who contract one. If not, then we actually have to define the kind of relationship that, as a society, we think people in a civil union ought to have, and we make it a condition of a valid civil union that they actually have it, or intend to have it.

At the moment, there is widespread recognition of [i]de facto[/i] relationships in Australia, and the recognition of such relationships for legal and administrative purposes looks entirely at factual realities. Do the couple live together? Is their relationship conjugal?. The results is that people who do, as a matter of fact, have the required relationship are treated as de factos. They cannot choose to be treated as de factos if they haven’t got the relationship and, equally importantly, if they have the relationship, they can’t choose [i]not[/i] to be treated as de factos.

What is proposed here is a complete turnaround. Allowing people to register a civil union, and having legal consequences flow from that, makes no sense at all unless we are going to accept that those who don’t register a civil union don’t suffer, or enjoy, the legal consequences. The implication is that the current approach to identifying people in a de facto relationship will largely have to cease; it is a meaningless gesture to give people the right to contract a civil union if the state is going to make its own assessment of whether they are de factos and treat them accordingly, regardless of whether they have contracted a civil union or not.

I personally object to the current approach to de facto relationships – I think if adults choose not to marry the state should respect their choice – so I would be quite happy to see it reversed. But I think it is important to recognise that the AHIC proposal implies its reversal, and perhaps the AHIC proposal should not proceed except in conjuction with its reversal. And I’m not sure that this is something the state of Victoria can deal with independently of the Federal Government.

 
At Thursday, March 13, 2008 5:24:00 pm , Blogger Schütz said...

From what I gather, Peregrinus, "civil union" is the wrong category for understanding the nature of this "relationships register".

People have the right under law to protect what is theirs. We have a duty (under the fourth and sixth commandments, and probably also the ninth and tenth depending on how you read them) to respect the relationships of others and to help them maintain these relationships.

In the form suggested by the Ad Hoc committee, this "registry" idea would be expanded to allow anyone with a significant relationship with someone else that is not based on ties of family or marriage to protect that relationship legally. To me this is fair enough. What is suggested is a civilly recognised and legally protected relationship--not a "union".

I think I can support that without having to go into the question of what is happening sexually between the two people or even whether the "significant other" is cohabiting. It might, in fact, be a helpful way of giving legal recognition to so-called "de-facto" relationships without giving these the weight of "common law" marriages.

 
At Thursday, March 13, 2008 6:18:00 pm , Anonymous Peregrinus said...

From what I gather, Peregrinus, "civil union" is the wrong category for understanding the nature of this "relationships register".

People have the right under law to protect what is theirs. We have a duty (under the fourth and sixth commandments, and probably also the ninth and tenth depending on how you read them) to respect the relationships of others and to help them maintain these relationships.

[i]“In the form suggested by the Ad Hoc committee, this "registry" idea would be expanded to allow anyone with a significant relationship with someone else that is not based on ties of family or marriage to protect that relationship legally. To me this is fair enough. What is suggested is a civilly recognised and legally protected relationship--not a "union".

I think I can support that without having to go into the question of what is happening sexually between the two people or even whether the "significant other" is cohabiting. It might, in fact, be a helpful way of giving legal recognition to so-called "de-facto" relationships without giving these the weight of "common law" marriages.”[/i]

My point is, though, who decides whether the couple have a relationship to protect? Is it the couple themselves, or someone else? If they turn up at the town hall seeking to register their relationship, will the registrar ask any questions at all to establish whether they actually have a relationship? Or will he proceed on the basis that they must do, as otherwise they wouldn’t bother to register it? If they turn up to marry, the celebrant will take the latter approach. Should it be different if they turn to to register?

If the registrar is going to ask any questions at all (Do you live together? Do you share household expenses? Do you own any assets in common? Do you feel responsible for one another’s welfare?) it seems to me that “Is your relationship conjugal?” is a legitimate question as part of a range of questions designed to get an overall understanding of the nature of the relationship. After all, it points to a degree of openness to one another, a degree of trust in one another, a degree of emotional connection, which could say a great deal about the relationship, and help us to decide whether this is the kind of relationship which ought to benefit from whatever protections it is that registration will offer.

A sexual dimension need not be an absolute necessity. In the superannuation context, there is what is known as an “interdependency relationship”, which doesn’t have to be sexual, but mostly is. Whether the relationship has a sexual dimension isn’t determinative, but it is a relevant factor, and it is always a question that would be asked in any case where it is necessary to establish whether two people have an interdependency relationship.

The point is, if the registered relationship follows that model, a couple presenting themselves for registration will be asked if they are having sex. The answer “no” might not be fatal, but they will then need to be able to point to other factors to justify their claim for registration.

If AHIC is advocating a regime under which the question simply is not asked, that seems to me to imply a regime in which no questions are asked – as with marriage, the very fact that the couple wish to register is enough. But that would be a dramatic change in Australian public policy in respect of non-marital relationships.

 

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