Thursday, April 4, 2013 by Max Ganado
We are moving towards a situation where we will have a law recognising civil unions governing a specific type of relationship between two people of different or even the same sex. The concept may bring within it even non-intimate relationships such as between siblings.
The direction, based on just expectations, appears to be one that will render this kind of union as close as possible to marriage but will not be marriage.
This legislative project is set to bring about one of the most wide-ranging changes to our law in many years. It will affect the whole of the Civil Code and many other laws. The reason for this, which may not be appreciated, is that this law is one that will affect the legal status of persons. That is what marriage does.
At law, a married person’s status changes and, with it, a plethora of laws start to apply differently. We lose some powers to contract freely and we lose more powers to dispose of our property freely, by donation or by will. This happens because we become married persons and because marriage is a status changer with its special legal effects.
If we want civil unions to be close to marriage at law then we will seek to introduce a law that affects the status of each of the participants in the civil union in the same way. It will need to create the kind of relationship which is relevant and recognised under the law of succession, apart from many other legal provisions touching subjects like administration of property, powers of attorney, leases, public law and so on.
This is by no means an easy task. Fail to make it equivalent and you lose those who want equi-valence, but make it equivalent and lose all those who avoid marriage and resort to cohabitation, finishing up where we started, with all its attendant injustices, prompting the need for another law on factual cohabitation!
Without setting out the detailed rules that bring about near equi-valence to marriage, which are all based on many years of social, psychological, philosophical and legal thinking, we will miss import-ant elements on which the desired life-long and total commitment towards each other rests, which, of course, presumes love and establishes mutual trust, fidelity, respect and support and ensures dignity and protection.
Many will recognise that the way the law operates with regard to married couples is different from the way it works with regard to siblings. To mention one example, when siblings acquire property they co-own it and co-administer it and their consent is needed for everything they wish to do with such property. If the property is sold to a third party by one without the consent of the other, it would be invalid as to the half of the non-consenting sibling.
Married persons find a presumed regime of community of acquests and, if they acquire property, each can administer it insofar as ordinary acts of administration are concerned and both must agree to extraordinary acts, such as a sale.
However, with regard to third parties, acts done in abuse of such rule are not invalid, though they can be attacked by the non-consenting spouse within set time limits. This important difference rests on the underlying marriage status.
Will the civil union have such automatic effects? Will the options to contractually exclude community of acquests and to adopt a different matrimonial regime be available to persons in a civil union? Will the “matrimonial home” protection be extended to them?
We will need to record civil unions at the Public Registry for them to have the same effects as marriage. In most respects, the marriage contract creates the status but cannot be negotiated and amended. For certainty as to the legal status of property, the rights of participants, the rights of third parties and the rules on liability and succession, and to avoid the need to draft very long contracts, civil unions need to be treated in the same way.
The Bill proposed gave the parties the power to unilaterally terminate such a contract and register the termination. The application of the rules on divorce to civil unions are the only consistent way in which we can deal with the termination, as termin-ation reverses the status of a person to what it was before, with all its legal effects.
Not treating a civil union as an issue of civil status, apart from a contract, will risk creating never-ending problems within our legal system.
Max Ganado is managing partner of Ganado & Associates, Advocates.