UPDATE: Redifining Marriage: Can I marry my goat?

Yes. If you live in Brazil and get permission first.

In my post entitled Redefining marriage: Can I marry myself? I looked at some of the legal changes that were necessary to bring the Marriage (Same Sex Couples) Bill into law.  I also explored the broader idea of redefining marriage as being something other than between a man and a woman, something which is very controversial and which has and continues to be the topic of debate notwithstanding the fact that the bill was given Royal assent on 17 July this year. I looked in particular at a case in Brazil where three people were allowed to enter into an equal marriage. Brazil seems to have gone a step further now and has given permission for amarriage to take place between a man and…a goat!  Permission was given on the strict understanding that the man, 74 year old Aparecido Castaldo, will not consummate the marriage with the goat, who is named Carmelita.  Despite the union getting the official go ahead, Mr Castaldo is likely to have trouble convincing many of the legitimacy of the marriage, not least because even those who think marriage should extend to same sex couples are unlikely to support the definition extending to inter-species couples, but also because there is a strong chance that the bride, having already eaten her wedding dress, will no doubt try to munch the marriage certificate as well.

UPDATE: Gay Marriage – Government Announces Changes

The Government has this week announced its plans in relation to gay marriage, which is to become legal for most religious organisations should they decide to opt into the legislation. I considered some of the issues that gay marriage raised for practitioners shortly after the government’s consultation on this subject ended in June 2012. The culture secretary Maria Miller, who announced the plans on Tuesday, detailed what she described as a “quadruple lock” to allow same sex couples to marry but also to protect those institutions and individuals that do not want to participate in performing same sex marriages from the threat of litigation on the grounds of discrimination. The legislation is designed to recognise equality whilst protecting religious freedoms. The biggest objections to the announcement have come from those institutions that are to be explicitly excluded, the Church of England and the Church of Wales, where it will remain illegal for same sex couples to marry. They are claiming that Ms Miller’s announcement was a surprise as they were not consulted on their exclusion and there may be discussion of an amendment. After the summer debates in which the Church of England claimed gay marriage was “the greatest threat to the Church of England in 500 years” it is be difficult to comprehend them now campaigning to be included in the opt in legislation. Perhaps their real objections lie in the fact that they were not given the final word in how they are treated in the legislation or that they are being singled out in a very public way as being opposed to this progressive, and for many much welcomed, change to the law.

The governments plans may also throw up some interesting legal questions such as the definition of adultery as being grounds for divorce.

Everything I have, with you I share...

...except my bank statements, my diary and the vintage Porsche I haven’t told you about.

Should married couples share everything?

A recent internet statistic claims that one third of people would be willing to snoop on their partners to see if they are having an affair.  But what if you’re after more than evidence of an indiscretion?  If partners are willing to snoop to discover the true extent of their other half’s social exploits then what about their financial exploits?

The law recognises the need for privacy and confidentiality, even against one’s spouse.  The subject was considered in the much publicised case of Imerman [2010] EWCA Civ 908 which went to the Court of Appeal. In that case Lord Neuberger MR stated that:

“The notion that a husband cannot enjoy rights of confidence as against his wife in respect of information which would otherwise be confidential as against her if they were not married, seems to us to be simply unsustainable.” (para 82) and

“Subject of course to the court being satisfied that the normal equitable principles would otherwise be in play, a claimant is not to be denied equitable relief merely because the defendant is, or has obtained the material or information in question from, his or her spouse.” (para 85)

In other words, if a spouse gathers evidence surreptitiously, their other half will still have all the remedies available to them which would exist had their spouse been a complete stranger, such as ‘breach of confidence’, ‘theft’, or ‘offences under the Computer Misuse Act 1980’.

The equitable relief that Lord Neuberger was referring to in Imerman was the return of hundreds of thousands of documents that the wife’s brothers had stolen from the husband’s computer.  These documents were confidential to the husband, and the wife had no more right to retain them than the husband would have had to retain a copy of the wife’s personal diary (assuming she kept one).

So, there exists a right to confidentiality between spouses (which I am sure many people will be very relieved to hear) but what happens when the parties separate and there are financial proceedings on foot?  The Court requires both parties in proceedings to give full and frank disclosure of their financial circumstances.  Documents, including bank statements, asset portfolios and property valuations, which can be kept secret during the marriage, must be laid bare.  This did not help the wife in Imerman as it was held that the fact that the husband would have been under an obligation to disclose the disputed documents was not relevant to the principle of confidentiality.  Interesting then, that a couple who are going through a divorce owe each other a greater obligation to disclose their financial affairs than a couple who is happily married.  

Should the same level of financial disclosure exist within a marriage as on divorce?   After all, it is not just the assets which couples are keeping from one another but debts too, £41billion according torecent reports.  Such dishonesty could lead to bankruptcy, and further financial consequences for the whole family, so perhaps there is an argument for saying that spouses must share such information with each other?  It does still leave the problem of actually obtaining the information as, even if spouses were obliged to share their financial position with one another then, according to Imerman, a spouse who sought to obtain information from their other half through dishonest methods could still be breaking the law.  The only solution would be to remove the principal of confidentiality against one’s spouse and the Courts have made it quite clear that they are not prepared to do that.

If you’d like to read more on this topic then Mr Justice Mostyn gave an excellent analysis of marriage and the economic relationship between spouses in his address to the All ParliamentaryGroup on Family Law in 2010.

Don’t be shy!  Tell me what you think.

I bet I can guess your age!

Just tell me what you think of the Supreme Court’s decision in Jones v Kernott, and I’ll tell you how old you are (roughly).

Answer the poll, now!

Now that the profession has had time to digest the Supreme Court’s decision in Jones v Kernott, which was handed down in November 2011, opinion appears to be divided as to whether the outcome was a step forward in the protection of cohabitees’ property rights or an unhelpful precedent that muddies the traditional property law rules.  In my experience of discussing this topic with other practitioners, those more recently qualified tend to favour the former position while the more experienced generation take the more cautious line.

In a nutshell (and it is a big case to squeeze into a small nutshell, perhaps a coconut would suffice), the couple, who were never married, bought a house in 1985 in joint names and valued at approximately £30,000 but made no express declaration of trust.  In 1993, Mr Kernott moved out and ceased all contributions to the mortgage and upkeep.  Fast-forward 14 years to 2007, and Mr Kernott wants to realise his interest in the property prompting Ms Jones to make an application under TOLATA 1996 for a declaration that she was the sole beneficial owner.  What the Supreme Court decided was that there could be an intention inferred and/or imputed from the parties’ actions that can affect the way they hold the property, even if no express intentions can be shown.  On that basis, they decided that from the time that Mr Kernott moved out the couple no longer intended to hold the property as joint 50/50 owners and awarded Mr Kernott a meagre 10% interest.

I’m simplifying things of course but there is a bigger picture I am trying to look at here.

Experience versus Youth

The younger generation appear to analyse the Jones v Kernott problem from a more idealistic view point.  They respond more to the facts of the case and in particular Ms Jones spending 14 years funding the mortgage and household and see the SC decision as a fair outcome, giving her the larger share of the jointly owned property.  Those more experienced tend to dwell more on the specific application of the law and express concern at the idea of asking the court to impute an intention that might not have been there.

Perhaps this comes from their increased familiarity in dealing with such issues or disinclination on the part of the youngsters to get beyond the basic facts and really analyse the decision (the case, and the Supreme Court decision is not easy reading).  That said, the five Supreme Court Justices who made the decision were none of them spring chickens and they unanimously decided (alright Baroness Hale differed on the reasoning) that the property was not to be treated as 50/50 in these particular circumstances.  I don’t think anyone would argue that they did not give proper consideration to the law.

Evolution of Social Ideals

Cohabitation is on the rise.  People are choosing not to marry or are marrying much later in life.  To some people cohabitation is as acceptable, if not preferable, to marriage, and they put no stock in the idea that the quality of the relationship is in any way contingent on its status.  Strengthening the rights of cohabitees might be seen as a logical step to bring the law in line with this evolution of social ideals and consequently is much more palatable to a generation that has grown up in a world where non-traditional relationships are socially acceptable.  To those more traditionally inclined the decision in Jones v Kernott could be viewed as legitimisation of the non-married couples status beyond that of simply two people who purchased a property together.  One wonders if the decision would have been any different if there had been no children involved (there were) and so the property was, to some extent, considered as a family home.

I’m not suggesting that all newly qualified family lawyers are pro-cohabitation and anti-marriage (I qualified last year and got married this year).  Nor am I suggesting that the elder generation of practitioners frown on everyone living together outside of wedlock.  I am simply commenting on a trend that has caught my attention and would like to extend the debate.