I want to express some disagreement with people who think that the law should not have any role in regulating peoples' personal relationships.
The problem with this is that like other libertarian views it has an element of, "I don't care about anyone else, I'm all right". It's nice to imagine that responsible adults could think through the consequences of their actions, come to reasoned and written agreements, which they then stick to. But although you might do that (or accept the consequences if you don't), most people neglect to do that, and when they get into trouble it's not very helpful to say, "you should have drawn up a contract to cover situations X, Y, and Z beforehand."
I'll give three examples.
First, a married spouse automatically becomes next of kin for the purposes of things like transferrable pensions, agreeing funeral arrangements, medical operations if incapacitated, organ donations, etc. When your spouse is lying unconscious in hospital, it's too late to draw up a contract. The law really has to have a sensible position here. (I'll note that this is the issue that is most important to people campaigning for same-sex marriage rights.)
Second, a married spouse automatically inherits from their intestate husband or wife. (And in England and Wales, the marriage cancels any previous wills.) Most people neglect to make wills, and yet it's very common for one spouse to be financially dependent on the other. When your spouse dies, it's too late for him or her to draw up a will.
Third, a married couple can own property jointly without needing to enter into any kind of formal agreement to do so. When you're separating, it's probably too late to make a contract pointing out that you paid the rent on the understanding that you had a share in your partner's car.
Since it's common for people to cohabit for long periods without getting married, the law is going to have to take some position on these issues. It's all very well to say, "people should get married (or contract civil partnerships, or make their own written agreements)" but if in fact people continue to neglect to do so — and of course they will — then cases are going to keep coming up where the law as it stands is grossly unjust. I don't have any worked-out plan of my own for how the law ought to work: I just object to the idea that doing nothing is the right thing.
![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
(no subject)
Date: 2007-07-26 10:12 pm (UTC)The problem with this is that like other libertarian views it has an element of, "I don't care about anyone else, I'm all right". It's nice to imagine that responsible adults could think through the consequences of their actions, come to reasoned and written agreements, which they then stick to. But although you might do that (or accept the consequences if you don't), most people neglect to do that, and when they get into trouble it's not very helpful to say, "you should have drawn up a contract to cover situations X, Y, and Z beforehand."
I'll give three examples.
First, a married spouse automatically becomes next of kin for the purposes of things like transferrable pensions, agreeing funeral arrangements, medical operations if incapacitated, organ donations, etc. When your spouse is lying unconscious in hospital, it's too late to draw up a contract. The law really has to have a sensible position here. (I'll note that this is the issue that is most important to people campaigning for same-sex marriage rights.)
Second, a married spouse automatically inherits from their intestate husband or wife. (And in England and Wales, the marriage cancels any previous wills.) Most people neglect to make wills, and yet it's very common for one spouse to be financially dependent on the other. When your spouse dies, it's too late for him or her to draw up a will.
Third, a married couple can own property jointly without needing to enter into any kind of formal agreement to do so. When you're separating, it's probably too late to make a contract pointing out that you paid the rent on the understanding that you had a share in your partner's car.
Since it's common for people to cohabit for long periods without getting married, the law is going to have to take some position on these issues. It's all very well to say, "people should get married (or contract civil partnerships, or make their own written agreements)" but if in fact people continue to neglect to do so — and of course they will — then cases are going to keep coming up where the law as it stands is grossly unjust. I don't have any worked-out plan of my own for how the law ought to work: I just object to the idea that doing nothing is the right thing.