Interesting Links for 21-06-2023

[andrewducker]

1. Men: Try not being awful when a woman turns you down.

(tags:relationships men OhForFucksSake gaming )

2. EV market share is growing because the vehicles keep getting better

(tags:electricity cars Technology )

3. It's time for the law to recognise polyamorous relationships

(tags:relationships marriage law polyamory )

Comments

[bens_dad]

2 I have wanted an electric car for decades. The price and the range have always been the problem.
The article doesn't appear to say whether the electric-ness is irrelevant or a no-brainer.

3.
It is not at all clear that the writer and her husband have a fixed set of people that they both wish to bring into the relationship.

I am reminded of an Ally McBeal episode, where it turned out that the first wife was only agreeing to the polyamory as it was better to have half of the husband than none.
What level of scrutiny do we need to ensure that isn't happening in secret ?

[andrewducker]

Ensure that people aren't making compromises in their relationships? I'm not sure that that's something the state needs to be involved in.

[naath]

evs, better range, cheaper, maybe not enoigh for you

how many women marry for money, does the law care?

[calimac]

3. Of course this is exactly what people opposed to same-sex couple marriage warned us would be the next step. And they were right, heh heh.

I know some pretty stable polyamorous groupings, and if we're worried about unstable ones, there are enough unstable cis het couples getting married to call that into question, too.

[errolwi]

NZ courts have decided that that they will make the existing laws (somewhat inelegantly) apply at least in one case. The alternative would have been constructive trusts, which is what happened before we essentially codified the case law to make the Relationship Property Act (as opposed to the Matrimonial Property Act)
https://www.stuff.co.nz/national/132356856/polyamorous-exes-how-to-split-2m-home-three-ways-divides-supreme-court

[penta]

I'm not actually sure this decision was a good idea, honestly. The act in question explicitly uses the term couple. The Supreme Court may be incredibly well-intentioned, but judges are supposed to read the words used in the legislation as they are commonly understood - the Wikipedia article on the topic might not cover NZ but does cover Australia. If the legislature in the Relationship Property Act had wanted to cover polyamorous relationships, they were perfectly capable of doing so. They used the word 'couple' explicitly in the legislation without defining it specifically in the legislation, which would suggest ordinarily that they did not intend to cover polyamorous relationships.

Violating a really basic principle of statutory interpretation like that pretty much guarantees a backlash, and for those thinking it's a good idea for courts to do that, well, I will point you at Roe v Wade and ask if other countries really want to emulate using the courts to achieve things you haven't even attempted to do via the legislative process.

[errolwi]

I'm a bit surprised that the Supreme Court is willing to go to these lengths. The practical alternative wouldn't be that bad surely (constructive Trust(s) as was the case when it was the Matrimonial Property Act), although Family Court judges might not be able to sit on the case if the RPA didn't apply.

[andrewducker]

The idea that two people in a relationship continue to have that relationship even if they are also in other relationships seems pretty obvious to me.

Which means that a triangle relationship consists of three relationships between couples, and should be judged in that way.

If the law doesn't say "if you form another relationship in addition to your existing one then you're excluded from this act" then why would you be?

[danieldwilliam]

I am sympathetic to the situation the New Zealand people find themselves in but the behaviour of the NZ Supreme Court makes me uncomfortable.

I think this is a question of what the law is compared to what some people think it ought to be or the what some people think the purpose of the law is.

I think the NZ Supreme Court has probably made a mistake here - both in terms of what the legislation says and their own constitutional position as an activist court.

1) What the law is

The Act uses the word couple and I think the most common definition people would have when using the word couple in the context of relationship related property is that it involves two people in a theoretically exclusive, particular and special relationship akin to being husband and wife.

I think you can argue that this relationship or set of relationships does not fit well within the current definition of couple as understood by the person on the Auckland Omnibus.

And I don't think it is correct for a court to extend definitions of words because they don't like the outcome in general or in particular. Hard cases make bad law and often the role of a Supreme Court is to tell one side or the other to take it up with the legislature.

The following article discusses the four types of statutory interpretation

https://www.lawteacher.net/free-law-essays/administrative-law/the-rules-behind-statutory-interpretation-administrative-law-essay.php

(I am a trendy liberal in favour of an activist judiciary because I very occasionally think the mischief rule should be applied and have been in favour of the Scots Law doctrine of the declaratory power

https://en.wikipedia.org/wiki/Declaratory_power

. Even I think the NZ Supreme Court have overstepped and probably mis-stepped here.)

2) Is and Ought are Different

If one thinks that the law on property in committed relationships is wrong or out of date or doesn't reflect how people currently conduct themselves the proper channel for changing the law is an Act of Parliament.


3) What the Purpose of the Law is

There's an open question about whether the law is there to protect "traditional relationships" that are not in the form of a Roman or Christian marriage or whether the law is there to protect people who order their economic and financial situation in good faith on the basis of genuine long-term relationship of whatever form. I doubt the NZ Parliamentary committee scrutinising this legislation unpacked their assumptions on fundamental nature of marriage and other committed relationships.

There is an allied question of what we mean by marriage. We may have elided the concept of an economic union and a spiritual union. We could decide that a marriage when registered with the state should purely be the economic union. That it acts as a shorthand for a set of agreed upon economic rights. If you want those rights, get married. If you don't, don't get married or draft your own contracts at your own expense.

You could argue that the purpose of the act is to protect the economic position of people who create a single economic unit with each other where the strict legal ownership of assets does not reflect the agreed upon moral ownership of those assets or the unmonitised contribution to the common weal of some members of the relationship. I'd be sympathetic to that argument. However, here are administrative and natural justice problems with taking that view. People should know in advance what the law so they can order their business. People also have the right to not go to the trouble of ordering their business in a efficient or a fair way. People in the relationship are the not the only people with potential moral or contingent property rights.

You could equally argue that the purpose of the Act was to protect property rights in and only in exclusive pair relationships which has the substance but not the form of a traditional Christian marriage.

If it were the intention of the the legislature when passing the Act to go beyond protecting moral property rights in quais-Roman marriage they should have chosen a different word from couple. If they intended to extend those protection to other forms of relationship I think they should have explicitly said so in the Act. We should be wary about allowing the state to interfere in the private property arrangement of citizen on the basis of fuzzy or stretched definitions. What the court has done here is say "I know that the important bits of paper say X owns this property but we the state know better" And it's saying the state knows better on the basis of a bit of convoluted word-smithery. i agree with Hernado de Soto that strong property rights are important for economic prosperity. People need to know when they own something and when they do not in a modern Western economy.
I would argue that courts ought to be circumspect about extending the law. They should generally follow the rule of strict interpretation.


And the politics of this is sketchy. I think most people (even in New Zealand) think that a couple is a couple in a traditional sense and the decision to alter or extend property rights in other forms of relationships is a political decision. Those should take place in elections and during legislation. Courts are the not the forum for changing concepts of important socual

And when they don't it risks undermining the legitimacy of both courts and the legislative process. If you can win an election on a manifesto that Black is White and then pass an Act that says that Black is White and then the courts come along and re-define your Act so that Black is Black what is the purpose of either institution worth?

[andrewducker]

"You could argue that the purpose of the act is to protect the economic position of people who create a single economic unit with each other where the strict legal ownership of assets does not reflect the agreed upon moral ownership of those assets or the unmonitised contribution to the common weal of some members of the relationship. I'd be sympathetic to that argument. However, here are administrative and natural justice problems with taking that view."

I can't see what other view you can take, if the law specifically includes "de facto relationship" as part of its definition. It clearly is there to cover specifically that eventuality. The question from https://www.legislation.govt.nz/act/public/1976/0166/latest/DLM441113.html would, I assume be whether living with your partner, who *already has a partner* would count as being in "a couple", or whether coupledom is entirely exclusive.

Which, as you say, is probably something that the NZ legislation should get around to clarifying.

[danieldwilliam]

The other positions you could take include

1) but *only* if the people affected are in monogamous, heterosexual relationship (with children?) - a compasionate but muscular Christian approach.

2) but *only* if the people affected are in monogamous, heterosexual relationship and would have gotten married but for some impediment and it would cause material hardship or manifest unfairness to surviving children if property rights were not treated as if the relationhip were quasi-marital (which appears to have been part of the animus for the Scots Law on "marriage by cohabitation with habit and repute which regularised de facto property rights by declaring the de facto relationship a de jure marriage in certain circumstances

The situation seems to be messy and as Western societies become more used to important relationships being outside of the boundaries of traditional marriage structures we're going to have to have a proper conversation about how and when we recognise the shared economic endevour and the whatever parental roles and responsibilities are going on. (We're probably not far away conceptually from a triad with a child biologically the child of a stay at home parent and a low earner suing for child support from the high income non-biological parent).

I suppose in some ways the NZ Supreme Court might be applauded for trigger that landmine but I fear that undebated-in-the-body-politic attempts to grab a particular position through court might provoke a negative reaction. I'm not unsympathetic to the idea of regularising polygamus relationships but heck no do I want that decision made by an appellate court.

[andrewducker]

Neither of those things are in the law that was passed. I've looked at what it says, and it's quite clear about the definitions of everything except "couple".

Where, I agree, they could have said "A couple shall be an exclusive pairing of two and only two people, and if someone is already in either a marriage, civil partnership or de facto marriage then having another relationship with another person will end the existing one" or "...and if someone is already in a marriage, civil partnership then it will be ended by the creation of the new de facto relationship".

So the law has said "You can have X, and Y, and Z" and also said that "You can't have two of X", and "You can't have two of Y" and "You can't have X and Y at the same time", but been silent on combining X or Y with Z, or having multiple Zs at once. For a judge to step in and say that, despite the law being silent on it, you aren't allowed to, would feel like a bigger overreach to me.

[danieldwilliam]

My point from a strict literal interpretation point is that the legislators probably meant (and intended to mean) that couple meant something like "A couple shall be an exclusive pairing of two and only two people, and if someone is already in either a marriage, civil partnership or de facto marriage then having another relationship with another person will end the existing one" and that it didn't need defining beyond that.

Which was probably a pretty sound defintion in 1976 when the original act was passed and probably also in 2001 when it was updated.

[andrewducker]

Gotcha.

I'm not sure that many people having a open relationship would want their marriage instantly ended because they had a second relationship. But I can see some legislatures going that way!

[danieldwilliam]

I think one of the other commentators on this conversation who (I think is in a poly relationship) was against the idea of having regularised poly relationships - I think because they were all too complex to fit in to a shrink-wrap pre-determined "oven ready" defined by legislation agreement.

But the important thing is the society wide conversation.

Rome for reference had several different forms of marriage. Some more binding than others. Julius Caesar was married by Confarreatio and as Flamen Dialis his marriage was indesolvable.

[andrewducker]

I'm not convinced by the need for societal-wide conversations in general. Passing laws shifts the Overton window. And I'm perfectly happy to shift the Overton Window by changing things and then letting the sky not fall.

Edit: Which isn't to say that conversations don't help. I'm totally in favour of conversations *as well*.

[andrewducker]

By the way, the exact same issue exists in Scottish Law, as far as I can see:
https://www.legislation.gov.uk/asp/2006/2/crossheading/cohabitation/2020-12-31

I'm sure that at some point a similar case will arise here. Or they'll tidy things up.

[andrewducker]

And also, this makes me even more convinced that, when I write the constitution for a free Scotland that there will be the explicit option for the Supreme Court to say "Buggered if we know what the law writers wanted, punt it to Parliament to come back with a ruling."

[adrian_turtle]

3. Several towns outside Boston allow more than 2 people to register domestic partnerships. This makes my family feel wonderfully affirmed, even though it has essentially no legal meaning outside the town (and very little meaning within it.) We don't even live in one of the municipalities where we could register our partnership! We're 5 miles away, but now I have a name for my girlfriend's other partner beyond "family" or "housemate," or "mishpocheh" or perhaps "family can be complicated and he's my family." A name that's recognized outside the polyamorous community, by people unfamiliar with "metamour."

I like the idea of giving polyamorous families recognition and protection from discrimination. I don't like the idea of legal polyamorous marriages that come with a standard set of automatic default rights about inheritance and child custody and taxes and property ownership and citizenship. Polyamorous relationships are so different (from each other, as well as from 2-person marriages) that it makes more sense to make each contractual relationship separately. In the US, it used to be a terrible problem that a hospital could prohibit visits from anyone but a blood relative or a spouse, and patients (especially AIDS patients) died alone with their loving partners locked outside. Or with hateful parents preaching at their bedsides. Now you can designate anyone to be allowed to visit you in the hospital, or to see your medical records, or to have medical power of attorney if you are unable to speak for yourself. You just need to remember to fill out the forms in advance. (Do that. Go do it now!) It benefits everyone who is unmarried for whatever reason, and polyamorous groups like mine make up a very small minority of that. You can also write a will dividing your property among several partners, just as you could divide it among several siblings. The problem is when people die without a will, the law assumes everything goes to the spouse.

I know I'm making it sound easy when it's really a daunting administrative mess to make all the contracts that are implied by marriage. (The 3 of us still haven't gotten around to it, and we even know a family lawyer who works with unconventional families.) But it's possible. And I think the solution is to make each part easier and more flexible for everyone, rather than making is all automatic for polyamorous families specifically.

[channelpenguin]

3. Oh my. I think kinda the opposite. That there should be no legally contractual marriage AT ALL. For anyone.

My thinking is ... Financial contracts are financial contracts. Love is love. There is NO reason to associate them. I'm sure that far, far too many people don't realise that a civil marriage IS legally a financial contract, and very little else (me included - but long divorced now).

I don't see the need for a the bundled massive mess of legal connections that is a marriage. People should just have whatever party ceremony they want to declare their love and set up the actual contracts they want (and this should be easy and fair!). Separation of Concerns, LOL.

Men and gaming groups

[snippy]

I've ended participation in two different in-person tabletop gaming groups because of this problem. OTOH I ended my participation in a women-only gaming group because everybody had cats, and I have a live-threatening allergy.

Re: Men and gaming groups

[andrewducker]

Trapped from all directions!

I'm sorry that you had to deal with men being awful.