'Slippery slope' steepens: Netherlands registers civil union of three people

[Left_Hand_of_Dorkness]

@slaphead

Eh, so I’m a :wally again. Maybe I should go for a refresher course in reading comprehension.

Not at all! Given that at least two different people misunderstood me, it seems likely the fault is mine.

Well, aside from the rather non-simple task of establishing a consensus for change, which doesn’t seem to be making much progress in the USA.

Details, details :). Yeah, when I say that it’s absurdly simple, I’m referring to the logistics of the change. You’re definitely right that acquiring the will for change is much more difficult.

Daniel

[Muffin]

You marry a person, start raising a couple of kids, then divorce and have joint custody of the kids, then shack up with a person and have a baby, then split to marry another person, who has joint custody of a couple of kids, then divorce that person, etc. That is serial polygamy, and that is what the courts presently deal with.

Whether the polygamy is only serial as it now is concerning marriage, or is contemporaneous as it now occasionally is concerning people having children from affairs, or is contemporaneous as it now only rarely is concerning triads etc., the fact remains that the courts deal with very complex family relationships every day. Adding married contemporaneous polygamous marriages to the list will not complicate anything.

[Left_Hand_of_Dorkness]

@Muffin

Whether the polygamy is only serial as it now is concerning marriage, or is contemporaneous as it now occasionally is concerning people having children from affairs, or is contemporaneous as it now only rarely is concerning triads etc., the fact remains that the courts deal with very complex family relationships every day. Adding married contemporaneous polygamous marriages to the list will not complicate anything.

Yes it will. Not that it’ll make the overall situation more complex, but at the point it’s added, we’ll have to decide a whole helluva lot of issues. The issues around serial monogamy (or serial polygamy if you prefer–I think that’s a silly term) have been decided over, quite literally, hundreds of years. The issues around polygamy are undecided within our legal system.

It seems bizarre to me to deny the tremendous complications involved in making polygamy legal. Recognizing those complications doesn’t mean that you must oppose such legalization: it simply means that you’re being realistic and are therefore prepared to meet the challenge.

Daniel

[MovieMogul]

Here’s what Dan Savage had to say about the differences between SSM and polygomy and the “slippery slope” argument. Excerpt:

“Once upon a time, the West had a ‘traditional’ marriage philosophy.” The husband owned his wife, whatever children she bore him—you know the drill. But capitalism eventually came along—thank God!—and freed us from those confining sex roles. “Each of us now has to make a living independently, based on individual talents and efforts rather than traditional roles. Over time this led to gender equality in both the job market and the marriage market. Between 1850 and 1970, every developed country struck down its sex-based rules, both in labor (i.e., women can be plumbers and legislators) and in marriage (i.e., married women can own property, hold jobs without hubby’s permission, have custody of children, and even—gasp!—say no in bed). The result: Gender equality is today’s governing public philosophy, in marriage and in much else. For 150 years, courts and legislatures have changed marriage law to fit this philosophy, under which same-sex couples fit just fine.” In other words, heterosexual marriage is not one man taking ownership over one woman, but two individuals, as equals, committing to each other.

Letting same-sex couples make the same gender-neutral commitment that opposite-sex couples make doesn’t open the doors to polygamy. “Traditional polygamy grows from exactly the opposite [of gender equality],” says Graff. “One man owns many wombs and grows lots of household labor. This violates all our contemporary notions of fairness and democracy. Polygamy would mean heading backward into marriage’s feudal history; same-sex marriage moves us forward into its equal and democratic future.”

[Left_Hand_of_Dorkness]

FTR, I think Savage is full of shit on this issue. Yes, it’s apples and oranges; but I’m a fan of all fruit.

Daniel

[Ms2001]

@Left Hand of Dorkness

With three people, the reciprocity becomes far more complicated. If I die and I have two wives and a husband, how is my property divided? Simple equity would say that my spouse gets my property–but I have three spouses. It’s much easier to divide my property into one share than into three shares.

OTOH, a case like that is analogous to someone dying with three children. We already have a way to divide up a person’s property among more than one heir. I think most “complications” of polygamous marriage have already been resolved in similar situations.

[Left_Hand_of_Dorkness]

@Mr2001

OTOH, a case like that is analogous to someone dying with three children. We already have a way to divide up a person’s property among more than one heir. I think most “complications” of polygamous marriage have already been resolved in similar situations.

I am almost certain you’re wrong on this. If you’re sure that you’re right, I have a post earlier in this thread where I ask specific questions; can you tell me how we would resolve these situations? You don’t need to give me an exact answer; just tell me which precedent we’d look to, and be prepared for me to come back with alternate, plausible precedents.

Daniel

[Ms2001]

@Left Hand of Dorkness

I am almost certain you’re wrong on this. If you’re sure that you’re right, I have a post earlier in this thread where I ask specific questions; can you tell me how we would resolve these situations? You don’t need to give me an exact answer; just tell me which precedent we’d look to, and be prepared for me to come back with alternate, plausible precedents.

1. Sam, a paleoMormon, marries Lisa and Mary and Fran and Zelda. Mary lives in another state, and has been married to Sam for ten years longer than the other three women. Sam dies without a will. What is the default setting for division of Sam’s property?

Same as if Sam had been the father of the three women.

2. Paul and Jeff and Katrina and Lily all get married. Katrina and Lily both have children, but they’re not sure who the fathers are. They all divorce. Who gets custody of the children, and who owes child support?

Same as if they had never been married - run a paternity test to determine which one is the father, and treat the other men as stepparents if necessary.

3. Same as #2, but this time, Lily leaves the relationship. Does she owe child support to Katrina’s son?

If the law requires stepparents to pay child support, then yes; she’s effectively a stepmother.

4. Same as #3, but this time, Jeff leaves the relationship. Does he owe child support to Katrina’s son?

Same as above.

5. Jeff is in the hospital, in a coma from which he will almost certainly not wake. Paul does not want extraordinary measures to prolong Jeff’s life; Katrina does; Lily is too traumatized to give an opinion. What happens?

Same as if two parents disagreed on whether to pull the plug on their son.

6. Do you believe that the answers to the above questions are clearly suggested by current case law–or if not, that clarifying the case law would be a painless, uncontroversial process?

I believe they’re clearly suggested, but if you have some contradictory case law in mind, I wouldn’t mind seeing it.

[Left_Hand_of_Dorkness]

@Mr2001

Same as if Sam had been the father of the three women.

Ah, but Mary claims that as his first wife, she’s got precedent: she’s invested more into the relationship than the other two women, and deserves more of Sam’s wealth, since it’s really more her wealth anyway. Daughters don’t have a similar argument to make.

Same as if they had never been married - run a paternity test to determine which one is the father, and treat the other men as stepparents if necessary.

Paul turns out not to be the father of either child. He points to other cases in which a woman, artificially inseminated, divorces her husband, but the husband had full custody rights to the child and wasn’t treated as a stepparent. He’s been in the family as long as Jeff, and has raised both children as much as Jeff has; why, he asks, should he be treated differently from the husband of the artificially-inseminated woman?

If the law requires stepparents to pay child support, then yes; she’s effectively a stepmother.
Same as above.

See above.

Same as if two parents disagreed on whether to pull the plug on their son.

Lily’s persuaded to give an opinion. Are we now in a majority-rules situation, or is it still the same as if two parents disagree? The losing side is going to fight.

The point is that there ARE different perspectives from which these issues can be approached, and it’d be a good idea for the state to offer some guidelines ahead of time. People will disagree about which current model is the best one to use, so we’ll need to hash that out.

Daniel

[Ms2001]

@Left Hand of Dorkness

Ah, but Mary claims that as his first wife, she’s got precedent: she’s invested more into the relationship than the other two women, and deserves more of Sam’s wealth, since it’s really more her wealth anyway.

I’d be inclined to disregard that, since they all entered into the same relationship willingly and as equals.

Suppose in a two-party marriage, millionaire Bill marries penniless Melinda with no pre-nuptial agreement, and then they divorce. Does Melinda get half of Bill’s stuff?

In states where she would, it’d make sense to divide up the assets of a polygamous marriage evenly. In states where she wouldn’t, it’d make sense to divide the polygamous marriage’s assets up in the same way: i.e., according to the wealth they had when they got married.

Paul turns out not to be the father of either child. He points to other cases in which a woman, artificially inseminated, divorces her husband, but the husband had full custody rights to the child and wasn’t treated as a stepparent. He’s been in the family as long as Jeff, and has raised both children as much as Jeff has; why, he asks, should he be treated differently from the husband of the artificially-inseminated woman?

Because the father in that other case was an anonymous sperm donor. The father in this case is known. If Jeff weren’t the father either, then Jeff and Paul would have equal claim to custody.

Lily’s persuaded to give an opinion. Are we now in a majority-rules situation, or is it still the same as if two parents disagree? The losing side is going to fight.

We’re now in the same situation as if, say, a parent is on life support and his three children disagree on his treatment. I don’t know whether that calls for majority rule or consensus rule; they seem equally good to me.

[Left_Hand_of_Dorkness]

@Mr2001

I’d be inclined to disregard that, since they all entered into the same relationship willingly and as equals.

I’m sure you would, but that’s not the point: the point is (for this and the other questions) that these are controversial topics on which there’s no clear controlling case law. Different parties will point to different case law, and unless the legislature sets out guidelines in advance, you’re going to have a crazyquilt of contradictory decisions from courts.

Daniel

[Ms2001]

@Left Hand of Dorkness

Different parties will point to different case law, and unless the legislature sets out guidelines in advance, you’re going to have a crazyquilt of contradictory decisions from courts.

That’s nothing new.

Did you know that in California or Texas, you can resell any software you’ve bought even if the EULA prohibits it, but in Missouri, you can’t? Eventually someone might bring a software reselling case before the Supreme Court, and we’ll finally have a single answer to the question “Am I buying or just leasing this program?”, but in the meantime, the country seems to keep on running with two answers.

[Left_Hand_of_Dorkness]

@Mr2001

That’s nothing new.

Did you know that in California or Texas, you can resell any software you’ve bought even if the EULA prohibits it, but in Missouri, you can’t? Eventually someone might bring a software reselling case before the Supreme Court, and we’ll finally have a single answer to the question “Am I buying or just leasing this program?”, but in the meantime, the country seems to keep on running with two answers.

Perhaps, because there’s huge honkin amounts of money behind software, and because the law didn’t need a proactive change before software got recognized. At the point where multiple marriages bring in that much money, you might find politicians willing to make those changes to the law.

Daniel

[Muffin]

No, polygamous marriages do not make the (Ontario) law any more complicated.

Polygamous marriages have been dealt with for a long time in conflict of law decisions, where persons who are in perfectly legal polygamous or potentially polygamous marriages from various nations in Africa, the Middle East, and Asia land up in an English law jurisdiction.

The granddaddy of cases dealing with polygamous marriages under English law (and which has been applied in Ontario) is Hyde v. Hyde and Woodmansee (1866) http://www.uniset.ca/other/ths/LR1PD130.html which determined that polygamous marriages do not count for squat in English courts because polygamy is not recognized in Christian nations.

Since then, the law (in Ontario at least), has advanced to recognize polygamous marriages for purposes under the Family Law Act and the Succession Law Reform Act (links previously provided). And yes, there are Canadian cases that do not follow Hyde and instead recognize foreign polygamous marriages as being valid for succession purposes.

So let’s have a look at what this means when a family blows apart (in Ontario):

[ul]Property division? The law already recognizes polygamous marriages for this issue, but in any event, it is a lot easier to handle a mechanical calculation under the FLA by way of a married spouse’s claim than it is by way of a non-married spouse’s trust claim. It follows that multiple polygamous spouses’ claims would be easier to handle than multiple non-married spouses’ trust claims. As it stands in the wonderful world of family law and estate law, there are lots of multiple/overlapping non-married spouses’ trust claims, often overlapping with married spouse claims either through the FLA or via an SLRA election to take under the FLA or under the SLRA on its own. If some of them were to become multiple polygamous spouses’ claims (theoretically possible under the existing law, but I have not come across any in practice), it would not complicate what is already a complicated thing.[/ul]

[ul]Spousal support? The law already recognizes polygamous marriages for this issue, but in any event, it doesn’t make much difference if you are married or not. If you have a child together or if you have been together for three years, you can go for it even if you were not married.[/ul]

[ul]Custody and access? Best interest of the child is the test. Marriage has little to do with it. When looking at what the Children’s Law Reform Act sets out for establishing parentage, cohabitation within 300 days of birth suffices, and for those folks who happen along later, there is a provision that lets anyone go for custody or access, so it is not necessary to be married to make a claim for custody or access.[/ul]

[ul]Child support? The law already recognizes polygamous marriages for this issue, but in any event, if you are not married, then it comes down to paternity/maternity, or acting in the role of a parent. The law already includes polygamous marriages, which would make it easier to get child support by virtue of there being more parents to chase.[/ul]

[ul]Estate? The law already covers (first by advances in caselaw, and then by amendment to the SLRA) polygamous or potentially polygamous marriages with respect to testate succession, intestate succession, and dependants’ relief. Nuf said.[/ul]

Now let’s step back and look at Hyde (in which a Mormon tried to get a divorce in England, but was denied one because his polygamous marriage was not recognized). It was based on a Christian belief system:

@Hyde headnotes

Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others.
A marriage contracted in a country where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a marriage as understood in Christendom; and although it is a valid marriage by the lex loci, and at the time when it was contracted both the man and the woman were single and competent to contract marriage, the English Matrimonial Court will not recognise it as a valid marriage in a suit instituted by one of the parties against the other for the purpose of enforcing matrimonial duties, or obtaining relief for a breach of matrimonial obligations.

Bring that situation forward to today, in an ostensibly multicultural nation (Canada), where we have a lot of people who come from countries where polygamy is accepted (and thereby if married in those countries are now in potentially polygamous marriages even if they only have one spouse), where the family and estate laws have broadened to include polygamous marriages, and, most importantly, where freedom of religion is constitutionally protected. Hyde is on its last outs.