In an article published in the Sydney Morning Herald on 6 August 2013 titled “High Divorce Rate means it’s time for Wedleases” Paul Rampell discusses whether or not the institution of marriage needs to be reviewed. In particular he focuses on for what most people is one of the defining aspects of marriage – that it is a promise for life.
“We all know that far too many marriages end in divorce yet this institution does not adapt. Indeed many people today want to expand conventional marriage to include same sex couples. So why is there no effort to improve the legal structure of marriage, when it has shown itself to be deficient?”
Rampell goes on to say that currently marriage is understood as a legal partnership that lasts for a life time until one of the spouses dies. He questions whether this is too long a partnership given that:
“People, circumstances and all sorts of other things change. The compatibility of any two people over decades may decline with these changes to the point of extinction.”
Rampell proposes that we “borrow” from real estate and instead of property leases we think in terms of a “wedlease”.
He states that couples could commit to periods of a wedlease for a set amount of years, for example one year, five years, ten years or whatever term suits them.
Following this the lease could then be renewed as many times as suits the couple. In the end a wedlease could end up being the same as a traditional marriage if it were repeatedly renewed.
However, Rampell states that unlike traditional marriage a wedlease could allow couples a way out of an unhappy marriage, for example, “If the relationship is bad, the couple could go their separate ways at the end of the term. The messiness of divorce is avoided and the end can be as simple as vacating a rental unit.”
In terms of how property is divided Rampell proposes:
“A marital lease could describe the property of the spouses in detail, so separate ownership is clear. If a couple wishes to buy something later, or share ownership they can keep a schedule of these items and decide as they go along how these would be disposed of in the event of a partner’s death or if they do not renew their wedlease. Landlords and tenants have proved the effectiveness of making clear their separate property and its disposition at the end of property leases.”
Rampell also proposes that in the event of a child being born the couple could include an option that the lease continue until the child reaches adulthood.
Whilst I take on board that perhaps if parties enter a marriage or wedlease with the idea in their mind that it is to be reviewed in one, five or ten years it may make some of the “messiness” identified by Rampell, slightly more able to be dealt with I think in reality the idea that the “messiness of divorce is avoided and the end can be as simple as vacating a rental unit” is somewhat out of step with reality.
This comment seems to show a flawed understanding of the reality of human relationships. Even if, in theory, the couple have agreed to review their relationship in five years, the end of any relationship is generally not as simple as vacating a rental unit.
While Rampell compares wedleases as akin to leases, I think he seems to not account for the emotions that people feel when a relationship ends, regardless of whether or not they sign some kind of wedlease at the commencement of a relationship.
The reality is that the relationship between, either de-facto couples, those in a wedlease, or husband and wife in a marriage will never be as clean as: “Landlords and tenants”.
Furthermore, the idea of entering a marriage like relationship with a “see how it goes” approach could still be done within the current framework of people living in de-facto relationships. However, I do take on board that Rampell’s proposal of a wedlease would make the review of the relationship more official at one, five and ten years.
Putting aside my “lawyer hat” for a moment also I think many people would find it unromantic to consider, for example, signing a one year contract to marry someone under a wedlease. I think in reality many people would rather simply not get married at all and simply live together and then re-assess the situation as it goes on.
Also, if someone signed, for example, a five or ten year “wedlease” I do not think that this would necessarily guarantee that they could make it, so to speak, to the end of that lease period. It is still likely that they will “break” the lease, so to speak at some point, for example, three years in rather than five years in, or seven years in rather than reaching the agreed ten years. At some point in the end, when a relationship ends it ends, and it is very painful and difficult for those going through the relationship breakdown.
In my view the idea of a “wedlease” as a panacea to the pain of a relationship ending and a guarantee as to how matters will be resolved is another means by which people might seek to convince themselves that they have control over the future, whereas in reality the future remains unknown and cannot be completely controlled.
The reality is that unfortunately some people love each other dearly when they first marry and truly do intend to spend their lives together – yet somewhere along the way they grow apart sometimes amicably, other times acrimoniously.
The risk of “messiness” in separation can probably never be insured against. A pre living together or pre marriage Financial Agreement can provide for how assets may be divided upon separation, however these documents certainly do not offer a panacea for the pain of separation, as Rampell tries to suggest a wedlease would.
Whilst it may difficult to keep matters amicable, when a separation does become “messy” lawyers can assist in trying to resolve parenting and property matters. In matters where emotions run high between parties, lawyers can assist in focusing discussions onto possible solutions and outcomes and away from blame, anger and retaliation. This is because unlike the parties, the lawyers are not emotionally or personally involved in the matter.
If you are finding it difficult to resolve parenting or property matters with your ex partner or spouse please contact us at Armstrong Legal on (02) 9261 4555 to make an obligation free initial appointment.
You may also contact us on (02) 9261 4555 to discuss the possibility of drafting a pre living together or pre marriage Financial Agreement which would provide for how assets should be divided if you and your partner separate.