Common-law is a red herring here; Falchion is absolutely correct that the term is a purely legal one, and requires (in those justisdictions in which it exists) that the couple have presented themselves as married.
On the other hand, the court decided their partnership over ten years was sufficient to warrant the award. IOW, the courts already decided that there is a “separate category” between married and not married, and that this couple fell into it. The relationship clearly did accrue many of the benefits of marriage (albeit not the legal ones), and therefore also some of the detriments.
I’m not sure what your angle is, Falchion. Are you pissed off that she got the award? Are you angry about the changing societal definitions of marriage? What’s your beef?
Well, I’m not “angry” at all. (I mean, misuse of legal terms makes me angry, but that’s a different issue). I suppose my principal complaint about the award is that I don’t think it’s structured correctly (and the idea of a legal effect of engagement bothers me). If it was a contract claim (i.e., the parties agreed that she would get an interest in the house if she provided good sex, and so we’re seeking to enforce the terms of the contract), then that’s fine. But this feels like a peculiar form of legal contortion (now it may be that the actual opinion presents it as a contract claim and the article is just misleading, in which case I’m only arguing against the posters in the thread).
But, my beef is this. If I want the protections of divorce (or the benefits of marriage), then I get married. If I don’t, I don’t. But this is about seeking to impose the obligations of marriage on parties that were perfectly competent to get married, but chose not to: presumably, in part, to avoid the obligations of marriage. I guess I object to the concept of this “third category” at all.
Ok, I’ll buy that. Is it not reasonable, however, to accept the existence of an implicit contract? One which may not contain all the benefits of marriage but which did accrue some of them? I mean, isn’t part of the role of the courts to examine the gray areas?
Don’t forget that in addition to stay home for their child, she also stayed home to care for his child from a previous relationship. He got 10 years of free day care for his other kid.
Well, there’s some dude on the Internet, and then there’s what the attorney in the article said:
So it’s possible that you’re right, but I’m going by the attorney who was involved in the case.
Which, crap on a cracker, IS BASICALLY WHAT I SAID TO BEGIN WITH:
It’s true that I left out that parenthetical caveat in later posts, but unless you think that I did my own legal search on the court papers between posts, you can take that caveat as read on my later posts as well.
I can accept a specific (implicit) contract in a particular situation (and this might be one of them; I don’t know). I just don’t think there should be a grey area between “married” and “not-married.” If you not married, then you should fall within standard contract principles.
Scenario A: I buy a home. My girlfriend moves in with me. Because she is unemployed, she cleans the house, runs errands, engages in general “housewife” duties. I work and pay the mortgage (and other bills). The house stays in my name the entire time. We break up. I reject the idea that she has any claim on the house, but I also reject the notion that I could somehow claim back rent.
Scenario B: My girlfriend and I buy a home together. We both work. But, for credit reasons, we agree that I will take the mortgage out in my name and it’s my name on the deed. We agree that we’ll split the mortgage payments equally and that we’ll split the proceeds of the house if/when we sell it. We break up. I would accept that she is entitled to some interest in the proceeds of the sale of the house (although, I don’t know if the statute of frauds would operate on this sort of contract; probably).
Scenario C: My wife and I buy a home together. I don’t even live in a community property state, but regardless of who is on the deed and who pays the mortgage, one of the functions of being married is that she gets some sort of claim on the communal assets. I’m prepared to accept that.
But my main problem is that it’s not analyzed this way. Instead we have posters talking about common law marriage and courts talking about “breach of promise to marry.” As if getting engaged gives you an interest in the other persons property. Probably because, in this case, the guy agreed to provide for her while she looked after the kid, but only as long as they stayed together. In the same way that my nanny gets money in exchange for child services, but only as long as she works there.
In any case, Falchion seems to think that it’s good to have a legal code in which someone can agree to be the stay-at-home partner in a relationship, caring for children and maintaining the household, and that the wage-earner in the partnership can terminate the relationship at any time with zero recompense for the domestic partner in the relationship. No matter what name you call that legal relationship, it sucks, and we need to have a legal code that recognizes the right to the de facto joint property of the couple.
Falchion calls this the disadvantages of marriage. I call it the protection of the law. We need to extend that protection to everyone.
Well, I am right. And I explained why twice. And I’m certainly not going to suggest that the woman’s lawyer had an interest in portraying their relationship as the functional equivalent of marriage when seeking a division of the assets, but I will say that he’s wrong that Georgia reenacting common law marriage would have solved this (since they probably would not have been married under pre-1997 law, either).
But you’re right. When you said “No, I’m not wrong on the common law marriage point,” I did not realize that you were simply asserting your reading comprehension skills. I believed that you were making a substantive point as to the issues in the case. And I apologize for my misunderstanding.
There is a system that allows for a claim on joint property for a stay at home partner and protects that partner from the termination of a relationship. It’s called “marriage.” It contains benefits and detriments (and yes, divorce is a disadvantage of marriage).
[Moderating]
This is technically a violation of the board’s rules about altering the contents of a quote box. No warning issued, particularly as this is a pretty innocuous example, but in the future, andros, please don’t put summations of other people’s arguments inside quote boxes attributed to them.
[/Moderating]
Divorce isn’t a disadvantage of marriage; it’s just a name for the dissolution of a particular relationship. There is no reason why a person who is unable to access this legal construct within a relationship should be denied the result of ten years’ domestic labor (your reductionist description of it as trading sex for money is loathsome and inaccurate).
In this particular case, of course, the legal framework surrounding divorce is only a disadvantage for the guy trying to cheat his ex out of her share of their work for the past ten years. Those two people tied their lives together, albeit not under the name “marriage”; they combined their material assets in an informal structure, and he was able to conduct his business outside the home because she was willing to stay at home and take care of the kids and the household.
If he didn’t like this arrangement, he was free to hire a nanny for their child and to hire workers to come take care of everything that his ex was taking care of. I’ll wager he’d be out more than 50K if he’d done that, though.
If you want the implied contract to be, “I’ll give you room and board in exchange for your work in the house and in raising children,” I think you’ll find he’s in violation of minimum wage laws.
As for your reading comprehension crack: nice try, but no. I’m not saying that you were right about the facts of the case. I’m saying that, whatever the accurate description of the law (and I do agree that you’re describing the law accurately), the attorney more familiar with both marriage law and with the specific facts of this case than you, me, or the writer of that article suggested that this relationship would qualify under common law marriage. I think you lack credibility when you dispute his claim based on the facts in the article, when he’s making the claim based on the facts of the case.
I think you’ll find you’re pulling things out of your arse. Minimum wage only applies if you’re actually paying someone a wage. Volunteer work is not illegal, not even if you are provided with fringe benefits like a free lunch or transport.
Except it turns out, in our society, our laws do not operate on a strict policy of caveat emptor. Yes, she could have made him put a ring on it before living with him. If she had, she would have been protected by divorce law.
But she didn’t do that, instead she cohabitated with him in an informal matter. But it turns out that under our legal system cohabitating with someone informally doesn’t automatically mean you can screw over your ex-cohabitator. Our system of laws also sometimes enforces informal agreements and contracts even if they are not written down on a piece of paper and registered at city hall.
If you don’t want your informal cohabitator to maybe be awarded a share of assets accumulated during your cohabitation, then don’t cohabit with them. Or alternatively, keep a careful account of expenses and who owes what, so that when the cohabitation dissolves it is easy to see who owes who what. But since this couple opted for an informal accounting of expenses, they needed a judge to figure out how to split things up.
Lack of a formal contract doesn’t mean that the other party is automatically screwed. It just means they usually are, since they have to convince a judge that they’re entitled to some of the shared assets and that’s harder without an express contract.
This is a good illustration that divorce is not a negative about marriage (well, it’s negative that it happens) but a positive. It’s good to have specific, predictable rules about how marital property will be divided. It avoids the confusion of having to divide quasi-marital property. Even if you got rid of marriage entirely, you’d still need something like divorce.