Glossary items: (these are not ads.)
End of list.
Legal structure of relationships
The Hidden legal structure around relationships
Comparison with consumer regulation
A possible solution - deregulation of marriage
The hidden legal structure around relationships
Men and women often think hard about their choice of partner before forming a relationship.
However, people rarely think about the extra parties in their relationship. You are more than a couple. You also marry the Government's relationship laws and the prejudices of tax funded agencies.
Unfortunately, the laws and prejudices that apply to relationships are hidden from people when they are considering marriage or other relationships.
To help make sense of relationship law, we will look first at how consumer law usually works.
In some ways, marriages are similar to long-term bank mortgages or insurance contracts. Consumer regulation for long-term finance contracts consists of:
Overall regulation: There is an overall body of law, and an overall supervising regulator. The regulator is also responsible for recommending changes to laws.
Service providers: A number of businesses provide similar, but slightly different, products under the overall regulation. Standard contract clauses and appropriate consumer warnings come with the products.
Ongoing contract obligations: The contract details the requirements of each party during the period of the contract.
Contracted events / termination: The contract provides full disclosure and warnings about what will happen at later events, such as default on your mortgage payments, or a claim on your insurance policy.
Consumer advocates: Groups monitor industry practice from the consumer's perspective. These groups advise the regulator about inappropriate behaviour by businesses.
Consumer hints: Businesses or others may give customers handy hints such as advice to draw up a budget, or to clear leaf debris away from your house. However, these hints are not obligations under the contract.
The end customer: Theoretically the end customer has product choice and the protection of regulation. The end customer can also evaluate their risk because of full disclosure from the start.
The default rate on bank mortgages is around 5-10%. The claim rate on insurance policies is around 15-20%.
The regulator considers these rates high enough to warrant clear warnings and disclosure to all customers. Initial finance contracts disclose full details about possible future events, such as default, claims and termination, and what will happen if such events occur.
The failure rate for marriages is higher than the termination rates for long-term financial contracts. The failure rate is 25-35% for marriages and higher still for de-facto relationships. The risk from relationship failure (i.e. kids and all property) is also much higher than in a single financial contract.
So, what does relationship law look like?
Relationship Law
Relationship law is not disclosed at the start of a relationship. As far as we can make out it looks like this:
Overall regulation: Although marriages have a traditional and religious history, the Family Law Act now covers all relationships in Australia. The Government is the only regulatory body.
Service providers: The Government is the only body permitted to provide marriages. Although the Government has only one type of marriage, it does not provide a standard contract, or any consumer disclosure, for that marriage.
Ongoing contract obligations: There is no contract, so there are no obligations. There are marriage vows but these are not enforceable. The marriage actually suspends operation of many Australian laws. Documentation and disclosure is not required.
Contracted events / termination: There is no contract documentation. The Family Law Act has some guidelines, but disclosure to the couple at the start of the relationship is not required. The Family Court evaluates everything retrospectively, using their discretion.
Consumer advocates: There are many interest groups - men, women, religious, homosexuals - but nobody seems to be happy. Women's groups and tax-funded agencies criticise men. Men are not happy with how they are treated. Religious groups want a more traditional form of relationship. Homosexuals cannot participate at all.
Consumer hints: Yes, providing relationship advice seems to be the only area of Government activity. However, the agreements you make are not enforceable. Whether you keep them, or not, does not have any effect on how the Family Court evaluates your case.
The end customer: The end customer has only one option for the relationship they go into. There is no contract, or disclosure, so the customer is unprotected, and cannot evaluate risk.
Obviously, the legal structure for relationships is a lot less than that for long-term financial relationships.
No fault divorce seems to have produced a no obligation, no repercussion marriage. However, family breakdown is still full of blame, recrimination and often retribution. Because there are no contract documents, the Family Court process is easy to use as retaliation for a perceived grievance.
Is there a way forward?
The underlying problem is the Government’s role, and the fact that it provides only one marriage option.
The Government is the regulator, but also the sole supplier. Because the Government has a monopoly on the supply of marriages, it is both a lazy regulator and a lazy supplier.
The Government prevents anyone else from providing marriages, but it provides only one type of relationship - a marriage without any legal contract or disclosure.
A possible solution - deregulation of marriage:
The Government becomes a regulator, but not a supplier, of marriages.
Other suppliers develop their own marriage contracts, under strict guidelines. For example, all contracts will provide some standard clauses, and full disclosure at the start of the contract period. However, suppliers will provide some different clauses for different interest groups. This will allow both religious groups and homosexuals to develop their own contracts.
Wherever possible, marriage should cease to be a barrier to operation of normal community laws. This will help to regulate behaviour in marriages, and forego the need to document everything in an ongoing relationship.
Contracts will detail procedures for future events, and what will happen at the end of relationship. Both parties should be fully aware of what will happen. The Family Court will only intervene if laws are being broken.
People will make informed choices about the types of relationships they go into, so they will be happier in those relationships. Their expectations are clear from the start, and not determined retrospectively.
If both people agree, they can alter the contract over time.
See also list of problems with current practice in property settlements. This list should be disclosed to young men contemplating marriage.
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