Benefits, rights, and privileges of marriage?

[LadyShea]

So, on II, I state my opinion that the government shouldn't sanction relationships at all, and that any and all benefits, rights and responsibilites related to marriage could be conveyed by other types of contracts, and I am getting really freaky responses. People seem to think that marriage has these thousands of implications that simply cannot be replaced with any other type of contract.

I say a declaration of legal next of kin could cover everything marriage currently does and it doesn't matter who that NOK is, a friend, relative, lover, whatever.

Am I missing something?

[Veritas]

Further to that, LadyShea, I've said to my friends that I honestly can't see what women get out of marriage. I mean, say you do it traditionally. The man's the head of the family, she takes his name, bears his children, goes through labour, the children get his name...what's the point?

You could say security, financial and emotional, for instance, but can't she get that for herself rather than depending on a man?

Also, some say that it prevents the man leaving if he is married...well if a piece of paper is all that keeps your man in the family home, you've got problems. If a man wants to leave, he'll leave.

On the day I get all that straight in my head, I'll marry.

Or, on the day Joaquin Phoenix asks me.

[Stephen Maturin]

Originally Posted by LadyShea

I say a declaration of legal next of kin could cover everything marriage currently does and it doesn't matter who that NOK is, a friend, relative, lover, whatever.

Such declarations certainly could be made to do everything that marriage now does, but it would require an awful lot of amendments to existing law. To cite but a few examples:

- Wrongful Death: Some guy gets offed in a car crash caused by the negligence of another driver. By state statute, the executor or administrator of the guy's estate can pursue a claim for damages against the negligent driver. Who gets whatever money is recovered? The persons identified as "beneficiaries" in the statute. AFAIK, every state's wrongful death statute classifies the surviving spouse as a beneficiary. If the decedent was married, his spouse is entitled to a share of the proceeds. If the decedent and his partner weren't married, the partner gets nothing. Making the partner a contractual next-of-kin designee doesn't help because the wrongful death statute doesn't recognize such designees as beneficiaries of the claim. Fixing that problem would requiring amending the wrongful death statute.

- Loss of Consortium: Same guy, same car crash, but this time he survives and experiences a long, slow, difficult recovery. He has a claim against the tortfeasor. If he's married, his spouse has a separate claim against the tortfeasor for loss of consortium (i.e., care, companionship, affection, sexual relations, services, etc.). If the dude and his partner are unmarried, the partner gets nothing because loss of consortium, a common law cause of action, is generally limited to spouses and children. Again, the next-of-kin designation won't help all by itself. You'd still need to persuade the state supreme court to recognize a loss of consortium claim in favor of such designees.

- Family Law: There's a host of legal baggage that goes along with marital status in this arena. For example, a husband is presumed to be the father of a child born during the course of the marriage. No such presumption would exist in a designor-designee relationship without amending the state's domestic relations laws.

- Tax Law: Married folk get the "married filing jointly" standard deduction. Next-of-kin designees couldn't get that without amending the Internal Revenue Code.

[LadyShea]

Stephen, what if everyone had to declare someone a legal next of kin like when they register to vote or get their driver's license or ID? What if every law that currently reads "spouse" read "legally declared next of kin" including the tax law?

We have discussed loss of consortium on the II thread. Per it's definition involving a number of criteria; compansionship, affection, help, and sex, not all married couples qualify (separated or estranged) and some non-married couples would qualify (any committed sexual relationship).

[LadyShea]

- Family Law: There's a host of legal baggage that goes along with marital status in this arena. For example, a husband is presumed to be the father of a child born during the course of the marriage. No such presumption would exist in a designor-designee relationship without amending the state's domestic relations laws

Big deal, though, there are already laws affecting divorced and other non married parents and their rights and responsibilities, why not use them?

[Adora]

The only point I can really see to marriage these days is legal and financial ones. It allows the proper authorities to easily organise who-gets-what when someone dies (which is the whole issue with gay marriage in Australia at present) and property inheritence etc. Which is what it has always been about. Whoever the stupid twats were who created this big mythos about love and marriage should be dug up, reanimated and repeatedly shot again.

[godfry n. glad]

Then there is the whole insurance issue, as well.

[LadyShea]

Originally Posted by Adora

The only point I can really see to marriage these days is legal and financial ones. It allows the proper authorities to easily organise who-gets-what when someone dies (which is the whole issue with gay marriage in Australia at present) and property inheritence etc. Which is what it has always been about. Whoever the stupid twats were who created this big mythos about love and marriage should be dug up, reanimated and repeatedly shot again.

Inheritance and such is better handled with a will.

[LadyShea]

Originally Posted by godfry n. glad

Then there is the whole insurance issue, as well.

What insurance issue? You mean health insurance?

Yeah, that's private business though, here in the US, and they can choose criteria. That's not a right given by the government.

I am mostly interested in why the government is involved in marriage at all. People should be able to choose to marry if they want, but it shouldn't, IMO convey rights. Each individual should be able to designate any other person to be the beneficiary of whatever rights are afforded by spouse. Does anyone know what exactly they are, even?

[fragment]

Originally Posted by LadyShea

Inheritance and such is better handled with a will.

What if someone doesn't make a will? Should the spouse get nothing in such a case?

[viscousmemories]

Originally Posted by Stephen Maturin

Such declarations certainly could be made to do everything that marriage now does, but it would require an awful lot of amendments to existing law.

Would it be possible to do that all in one fell swoop by changing the legal definition of 'spouse' to something more broad?

[fragment]

Originally Posted by LadyShea

I am mostly interested in why the government is involved in marriage at all. People should be able to choose to marry if they want, but it shouldn't, IMO convey rights.

Does the government directly convey rights upon the married, or is it merely recognising the existence of a relationship between people and that certain things follow from that, e.g. the right to be recognised as next of kin? An analogy might be parenthood, which is legally recognised in a number of ways, but not something which is directly conferred upon people by the state.

[LadyShea]

Originally Posted by fragment

What if someone doesn't make a will? Should the spouse get nothing in such a case?

That's not what I said, at all. I have never once stated anything against marriage in and of itself. Dammit, I am getting frustrated here too. I want marriage to exist, I just want the government not to discriminate based on it.

My hypothetical is that everyone chooses and legally designates one person to be their legal next of kin (for lack of a better term) to which all rights currently conveyed only to married people, are to be extended. The nature of the relationship between these two people would be irrelevant. If two widows want to pool resources and name each other "legal next of kin" then that would be fine, if roommmates want to name each other, fine. Gay couples, relatives. It shouldn't matter if you are fucking the person you want to be your desingee with regards to such matters.

If someone dies without a will, in my hypothetical world, not in the current world, then everything should go to whomever they designated as their legal next of kin. Under many circumstances that would, indeed, be a spouse, but my way does not discriminate against non-marrieds.

[Dragar]

Surely there is a 'point' to marriage outside of a legal context?

Traditionally, it's a big, ritualistic occassion, where the happy couple's friends and family all turn up to celebrate the two of them making a commitment to each other. Gifts are given which typically aid them in setting up a new household.

Everyone wears fancy clothes and acts oddly - and people remember events where things are different. And the declarations are made in public, so all the community knows what has taken place.

Maybe a lot of that isn't needed any more. But surely some of it is worth keeping around?

[LadyShea]

Originally Posted by fragment

Does the government directly convey rights upon the married, or is it merely recognising the existence of a relationship between people and that certain things follow from that, e.g. the right to be recognised as next of kin? An analogy might be parenthood, which is legally recognised in a number of ways, but not something which is directly conferred upon people by the state.

I am not sure. People keep telling me that certain rights are only conveyed to the married, and an attorney told me "legal next of kin" status can't cover them all, but didn't enumerate which ones those were.

I always believed most rights were due to the assumption of next of kin status.

[LadyShea]

Originally Posted by viscousmemories

Would it be possible to do that all in one fell swoop by changing the legal definition of 'spouse' to something more broad?

Yes! You get it!

[LadyShea]

Originally Posted by Dragar

Surely there is a 'point' to marriage outside of a legal context?

Traditionally, it's a big, ritualistic occassion, where the happy couple's friends and family all turn up to celebrate the two of them making a commitment to each other. Gifts are given which typically aid them in setting up a new household.

Everyone wears fancy clothes and acts oddly - and people remember events where things are different. And the declarations are made in public, so all the community knows what has taken place.

Maybe a lot of that isn't needed any more. But surely some of it is worth keeping around?

I never said I wanted to eliminate marriage. I just don't want discriminatory rights and privileges entertwined with it. I don't understand why the government is involved.

[fragment]

Originally Posted by LadyShea

That's not what I said, at all. I have never once stated anything against marriage in and of itself. Dammit, I am getting frustrated here too. I want marriage to exist, I just want the government not to discriminate based on it.

My hypothetical is that everyone chooses and legally designates one person to be their legal next of kin (for lack of a better term) to which all rights currently conveyed only to married people, are to be extended. The nature of the relationship between these two people would be irrelevant. If two widows want to pool resources and name each other "legal next of kin" then that would be fine, if roommmates want to name each other, fine. Gay couples, relatives. It shouldn't matter if you are fucking the person you want to be your desingee with regards to such matters.

If someone dies without a will, in my hypothetical world, not in the current world, then everything should go to whomever they designated as their legal next of kin. Under many circumstances that would, indeed, be a spouse, but my way does not discriminate against non-marrieds.

Sorry, maybe my point wasn't clear. It just seems to me that a lot of people would fail to legally declare this next of kin, in the same way that a lot of people fail to make a will. Why shouldn't there be a legal recognition of the actual social and economic relationships people enter into even when they haven't created a formal document specifying them?

Take the case of someone who was in a relationship and declared their partner as next of kin, but then later fell out with that person and entered a relationship with someone else (these are either formal marriage or common-law relationships)... but this person failed to update who their legal next-of-kin was before dying. Does the current spouse lose all rights to inherit? If the inheritance was contested in a court, what should the outcome be?

[fragment]

Originally Posted by LadyShea

Yes! You get it!

Maybe there's some confusion here... because it doesn't seem to me like what viscousmemories is suggesting is the same thing as what you suggested in the OP, LadyShea...

[LadyShea]

Originally Posted by fragment

Sorry, maybe my point wasn't clear. It just seems to me that a lot of people would fail to legally declare this next of kin, in the same way that a lot of people fail to make a will.

I suggested they sign the document when they register to vote, or get their driver's license or ID. It could also be one of the million forms someone signs when purchasing property "In the event of your death, who is your designee for this property?" kinda thing.

Why shouldn't there be a legal recognition of the actual social and economic relationships people enter into even when they haven't created a formal document specifying them?

There should be, the problem is the current system discriminates against those who aren't or can't be married. Single people and homosexuals for examples.

Take the case of someone who was in a relationship and declared their partner as next of kin, but then later fell out with that person and entered a relationship with someone else (these are either formal marriage or common-law relationships)... but this person failed to update who their legal next-of-kin was before dying. Does the current spouse lose all rights to inherit? If the inheritance was contested in a court, what should the outcome be?

To get married you have to fill out forms, to change your designee you would need to fill out forms. You would need to fill out forms on your checking accounts and other financial holdings to add the new person, and the "legal next of kin with regards to this property" could just be another one. Really it seems so simple to me, I am baffled others see it as some kind of hardship.

[LadyShea]

Originally Posted by fragment

Maybe there's some confusion here... because it doesn't seem to me like what viscousmemories is suggesting is the same thing as what you suggested in the OP, LadyShea...

He is suggesting a broader, more inclusive category than spouse, that is all I am suggesting at its core, I am just being more specific with my brainstorming.

[Carnivale Ed]

I agree with Dragar. The problem I think you're having, LadyShea, is that, despite some assertions to the contrary, we, as a society, don't consider a romantic/married relationship to be exactly the same as other types of interaction. We presume they're more significant, a reasonable presumption given the nature of the relationship, and that presumption can't simply be legislated away. Marriage, and adoption, are basically the only ways we have of 'choosing' our family. It is the 'standard', if you will, that everything else is measured by.

If you really want to confer all the rights of a spouse on a non-spouse, I think you could probably already do so (or nearly), you just have to go to the trouble of doing it. The presumption of a spouse (and family in general) being of primary importance to a person, though, just makes good sense, especially from a legal standpoint. It's reasonable to think that these are the people that have your best interests at heart, the people you most care about.

I'm not sure about your claims of discrimination. What, exactly? Not recognising homosexual realtionships I get, thus we have a huge push for gay marriage at the moment, but even this push is based on the presumption that a romantic relationship is of primary importance to a person. Why should society assume that people want to confer rights on others, outside their family, when no romantic relationship exists?

[fragment]

Originally Posted by LadyShea

He is suggesting a broader, more inclusive category than spouse, that is all I am suggesting at its corel, I am just being more specific with it.

OK, let me tell you where I'm coming from on this. Not so long ago New Zealand created a new Civil Union provision... in effect it is marriage in all but name, and open to a broader range of people, such as same-sex couples. Good move. However, even before that legislation had been enacted which gave common-law couples, who had signed no legal declarations whatsoever about their relationship, close to all of the legal privileges of marriage (and the responsibilities too).

I can't remember the exact definition of a common-law relationship, but it's something like a relationship involving most of a set of features, such as emotional commitment, co-habitation, intertwined finances. In principle, this makes a lot of sense to me... it is a recognition that people enter into relationships that are like marriage to all intents and purposes without bothering themselves with all the legal loose ends, and that such people are deserving of legal recognition of such a relationship. For instance, under this situation, a common-law wife who gave up her career in order to look after the kids has exactly the same entitlement to combined property as a married woman in the case where the relationship breaks up. Under the scenario you suggest such a woman would be left unprotected in the case her partner failed to make a legal next-of-kin declaration.

So what I'm saying is that, while I'm in favour of vm's approach of broadening the definition of marriage, I consider the specific implementation you are suggesting could lead to injustices in the case where people fail to fill out the legal forms. The issue is not whether or not people consider it a hardship to do so, it is whether the fact that people would fail to do so should leave their spouses/partners/whatever unprotected.

By all means, legal next-of-kin declarations could be a powerful tool, but they are insufficient, in my opinion.

Disclaimer... I could well be talking out of my ass to some extent, as I have no legal expertise whatsoever.

[LadyShea]

I'm not sure about your claims of discrimination. What, exactly? Not recognising homosexual realtionships I get, thus we have a huge push for gay marriage at the moment, but even this push is based on the presumption that a romantic relationship is of primary importance to a person. Why should society assume that people want to confer rights on others, outside their family, when no romantic relationship exists?

What about single people? Currently all rights are conveyed to their blood next of kin, which may not be the best choice. All I am suggesting is that every individual be able to choose the person that all assumed rights, etc. go to. Really we already assume a number of things with marriage and blood relatives.

For example, if hubby and I divorced, and he was in a coma or some other medical decisions need to be made, his parents would have those rights automatically as assumed next of kin. Because he doesn't WANT his parents having those rights, he currently has to sign all kinds of forms regarding a living will, etc. If he could name someone else, on a single form, that assumes all the rights and responsibilities of a spouse or next of kin, then there would actually be less paperwork, etc.

[Carnivale Ed]

Originally Posted by LadyShea

What about single people? Currently all rights are conveyed to their blood next of kin, which may not be the best choice. All I am suggesting is that every individual be able to choose the person that all assumed rights, etc. go to. Really we already assume a number of things with marriage and blood relatives.

For example, if hubby and I divorced, and he was in a coma or some other medical decisions need to be made, his parents would have those rights automatically as assumed next of kin. Because he doesn't WANT his parents having those rights, he currently has to sign all kinds of forms regarding a living will, etc. If he could name someone else, on a single form, that assumes all the rights and responsibilities of a spouse or next of kin, then there would actually be less paperwork, etc.

Yes, but might I suggest, he's in the minority. How much more trouble for every other person to have to go to the trouble of actually naming their parents as the people they want making decisions?

If single people really don't want their blood relatives making decisions then, as you've shown, there are already mechanisms in place for them to ensure that's not the case. If it's important enough, they'll fill out the paperwork.