Características de las parcelas

The contractual model allows parties to structure their relationship through contracts and wills, regardless of formal recognition or lack thereof.²⁹ Through contracts, such as cohabitation or caregiving arrangements, parties may opt for a property regime similar to that applicable to married couples or take on marriage-like obligations.³⁰ Through wills, a party has a designated beneficiary to inherit property, as if they were married.³¹ The contractual model will thus include aspects pertaining to both contracts and wills.

27 Obergefell v. Hodges, 135 S. Ct. 2584 (2015), at 2613 (Roberts J dissenting op.), quotingJAMES Q.

WILSON,THE MARRIAGE PROBLEM:HOW OUR CULTURE HAS WEAKENED FAMILIES 41 (2002).

28 See e.g. NANCY POLIKOFF, BEYOND STRAIGHT AND GAY MARRIAGE: VALUING ALL FAMILIES

UNDER THE LAW 142-43 (2008) (proposing an approach that assesses the program’s purpose and giving an example of the different rationale that can justify benefits to a retired worker: if the rationale is to compensate for the care that the wife has performed toward the dependent child, then the benefit should not go to childless spouses; if it is one that acknowledges the adults’ financial interdependence then it should go to the interdependent partner).

29 L. COMMISSION CAN., BEYOND CONJUGALITY: RECOGNIZING AND SUPPORTING CLOSE ADULT

RELATIONSHIPS 115 (2001), available at

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1720747&rec=1&srcabs=1524246&alg=7&pos=

3 (last visited Oct. 20, 2018).

30 Id.

31 Id.

At present, individuals can achieve some of the flexibility required by family pluralism through private contracts like prenuptial agreements or health care proxies.³² However, not all of the legal protections of marriage can be assigned by contract. For instance, in the U.S. a person cannot freely assign Social Security benefits, health insurance benefits, or rights under the Family and Medical Leave Act.³³ In Québec, one of Canada’s civil law provinces, although public law government programs recognize unmarried couples on a functional basis, such couples are always legal strangers when it comes to private family law.³⁴ Thus, a pure contractual model (where all family-related matters are dealt with by contract) would require that current laws and regulations be amended to allow for designating a new family member as beneficiary of a broader array of benefits.

The contractual model is characterized by a high degree of flexibility, since it allows parties to create the bundle of rights and obligations that they deem appropriate.³⁵ By contrast, marriage and registration systems usually provide for a standard set of rights and obligations that automatically accrue through those statuses, with some minor deviations.³⁶ The contract’s tailor-made nature is just a surface advantage; its most valuable asset is its ability to enhance personal autonomy. It enables the parties to articulate their own expectations – to “forge one’s own contractual regime and negotiate the terms of one’s commitment [is] a valued tool in a free society.”³⁷ The contractual model’s benefits are also its shortcomings. This model works best when parties participate on equal footing with each other in the drafting of the agreement, share a relatively similar knowledge, and have balanced bargaining

32 Laura A. Rosenbury, Friends with Benefits, 106 MICH.L.REV. 189, 231 (2007).

33 Id.

34 Leckey, supra note 2, at 14. Also, although the “droit à une réserve héréditaire” (right to a reserved portion of an estate) has not been included in the Civil Code (and thus not been extended to married couples), as a compromise on the annexation of the Province to Canada, de facto couples continue being excluded from all the remaining prerogatives in the field of succession. Unmarried partners can inherit only by will and cannot make gifts of future property. Brigitte Lefebvre, Récents développements en droit des successions: Le droit Québécois, 14 ELECTRONIC J.COMP.L. 1 (2010), at 3. 35 L.COMMISSION CAN.,supra note 29, at 115.

36 There are core provisions which cannot be waived. By contrast, there is a trend pointing to the customization of the relationship deriving from the increasing possibility for marital couples to depart from non-core legal baselines so as to tailor the relationship to their actual needs. See William N.

Eskridge, Family Law Pluralism: The Guided-Choice Regime of Menus, Default Rules, and Override Rules, 100 GEO.L.J. 1881, 1884 (2012).

37 L.COMMISSION CAN.,supra note 29, at 115.

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powers.³⁸ When this is not the case, the vulnerability of one party is a concern.³⁹ This factor alone may outweigh the benefits of autonomy and contractual freedom.⁴⁰ Additionally, private contractual law is cumbersome because it requires that parties invest a lot of time and effort in reaching an agreement. The cost of agreement includes both direct costs – the legal fees required to enter into the contract – and indirect costs – spending time, effort and energy entering into a mutually beneficial contract.⁴¹ Contracting also has an emotional cost to the parties for a few reasons.

First, parties must articulate their expectations for the relationship – even if the time is not ripe for articulating them. It also leads parties to develop an adversarial mentality that might result in negative feelings surrounding the negotiations.⁴² Agreements also suffer from an optimism bias, and parties may not articulate their expectations because of positive illusions of the length of the relationship and the capacity of parties to privately resolve potential controversies.⁴³ It is unrealistic to think that parties will articulate all of the relevant aspects of the relationship because of cognitive bias and the relative time and cost of predicting all potentially relevant aspects of the relationship (financial cost of bargaining).

Furthermore, there is one key limit in this model that hinders any further analysis:

contracts are binding on parties, not on the government. The consequence is that such arrangements are technically “invisible” in the eyes of the state and irrelevant for its social law apparatus.⁴⁴ Through contracts they can only regulate areas at free disposition of parties, such as property and financial aspects of cohabitation. Public benefits do not fall within this area. Thus, many families using contracts to overcome this invisibility find themselves in a position where they can only achieve a very limited array of benefits/rights.

Is this always the case? Currently, yes. Will this always be the case? Not necessarily.

Conservative bills in Alabama, and Missouri are testing grounds of publicly-binding

38 Leckey, supra note 2, at 14.

39 TAMARA METZ,UNTYING THE KNOT:MARRIAGE, THE STATE, AND THE CASE FOR THEIR DIVORCE

126 (2010) (arguing that caregiving itself creates vulnerability).

40 Id.

41 See Helen Reece, Leaping without looking, in ROBERT LECKEY (ED.),AFTER LEGAL EQUALITY: FAMILY,SEX,KINSHIP 119 (2015).

42 Id. at 120.

43 See Anne Barlow, Legal rationality and family property inJOANNA K.MILES &REBECCA PROBERT

(EDS.),SHARING LIVES,DIVIDING ASSETS:AN INTERDISCIPLINARY STUDY 34 (2009).

44 Leckey, supra note 2, at 14.

contracts.⁴⁵ These conservative bills were proposed to oppose the U.S. Supreme Court’s decision in Obergefell v. Hodges, which mandated the legal recognition of same-sex marriage in the U.S.⁴⁶ Oklahoma proposed to replace marriage licenses with common law marriage affidavits. Missouri aimed at replacing marriage with civil union contracts. Ultimately, Alabama original proposal would have replaced marriage licenses with civil contracts for everyone.

Especially, under the Missouri and 2016 version of the Alabama’s bills married couples acquire their status upon stipulation of the contract.⁴⁷ The model proposed in Alabama squarely falls within a contractual model, since it is the contract alone that triggers the legal consequences of the “being married.”⁴⁸ Likewise, the bill in Missouri can be ascribed to a contractual model⁴⁹ in that in this model: (i) the contract is valid the date is executed;⁵⁰ (ii) the contract of domestic union is registered for mere notification purposes, and thus is not the registration but the validity of the contract that triggers legal effects.⁵¹

As a consequence, the signing of the contract triggers the marital status, with all the benefits and obligations thereof.

In this way, these bills essentially overcome the invisibility problem. The private law instruments used to enter into the relationship bind the government and third parties,

45 All the information regarding the Oklahoma bill can be found on the website of the Oklahoma Legislature: http://www.oklegislature.gov/BillInfo.aspx?Bill=HB1125 (last visited Jun 15, 2018); all the information regarding the 2018 version of the Alabama bill can be found on the website LegiScan:

https://legiscan.com/AL/bill/SB13/2018 (last visited Jun 15, 2018); all the information regarding the 2017 version of the Alabama bill can be found here: https://legiscan.com/AL/bill/SB20/2017 (last visited Jun 15, 2017); all the information regarding the first version of the Missouri bill, proposed in 2017, can be found on the website LegiScan: <https://legiscan.com/MO/text/HB62/2017> (last visited Jan 15, 2018); while all the information regarding the 2018 version of the Missouri bill, which emulated the former version, can be found on the website LegiScan: <

https://legiscan.com/MO/bill/HB1434/2018> (last visited Jul 15, 2018).

46 Obergefell, 576 U.S. On the ruling of the decision see Melissa Murray, Obergefell v. Hodges and Nonmarriage Inequality, 104 CAL.L.REV. 1207 (2016); Kenji Yoshino, The Supreme Court, 2014 Term – Comment: A New Birth of Freedom?: Obergefell v. Hodges, 129 HARV.L.REV. 147, 162–79 (2015).

47 See Robin Fretwell Wilson, Divorcing Marriage and the State Post-Obergefell, in ID, THE

CONTESTED PLACE OF RELIGION IN FAMILY LAW 415, 419 (2018).

48 Another bill squarely falling within a contractual model is the one proposed in Indiana, HB 1163, 120th Gen. Assemb., 2nd Reg. Sess. (Ind. 2017). See Id.

49 Wilson, supra note 47, at 431.

50 Missouri Bill Would Eliminate Marriage Licenses, Nullify Federal Control in Practice, TENTH

AMENDMENT CENTER, Dec. 8, 2017, https://blog.tenthamendmentcenter.com/2017/12/missouri-bill-would-eliminate-marriage-licenses-nullify-federal-control-in-practice/ (last visited Jun 15, 2017).

51 H.R. 62, 99th Gen. Assem., 1st Reg. Sess., at 451.125(5) (Mo. 2017).

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since it is the state that confers upon the parties the power to acquire with erga omnes effects the status of “married couple.”⁵²

According to the Law Reform Commission of Canada (the Commission), a body advising the Canadian government on family law, besides the lack of “official or public aspect” of private agreements, there are two more problems associated with the contractual model:⁵³

1. Lack of “certainty.” The Commission does not clearly articulate what it is implying when it suggests that contracts lack certainty (“Throughout our consultations, it became clear that simply allowing people the option to enter into private contracts… was insufficient because … it [did not] offer sufficient guarantee of certainty.”)⁵⁴ One reason for uncertainty is the creation of non-uniform legal regimes amongst families, which is administratively difficult to manage. Any relationship would have different contractual terms, forcing the administration to check all the time whether a unit counts as a family for purposes of a specific law, unlike with default regimes.

By contrast, the unpredictability of all potentially relevant aspects of the relationship (e.g., rules to share property, support upon breakdown of the relationship, etc.) can be read from the perspective of parties (not the administration). I share this concern.

It is unrealistic to think that the contract will articulate all of the parties’

expectations. This is a shortcoming that needs to be taken into account in choosing among different models.

2. “Lack of official record of those private agreements.” The lack of a formal record would, in the words of the Commission, prevent the “efficient administration of laws and programs where relationships could be relevant.”⁵⁵ But this is not an intrinsic feature of the model. Recently proposed legislation in Missouri and Alabama show that the state could start recording common contracts through its clerks without many

52 By contrast, a pure private law model does not bind the government or third parties. See Leckey, supra note 2, at 12.

53 L.COMMISSION CAN., supra note 29, at 114 (“Throughout our consultations, it became clear that simply allowing people the option to enter into private contracts, such as cohabitation agreements or caregiving arrangements, was insufficient because it did not always have the official or public aspect that was needed, nor did it offer sufficient guarantee of certainty. In addition, the lack of official record of such private arrangements prevents the efficient administration of laws and programs where relationships could be relevant”) (emphasis added).

54 Id, at 114.

55 Id, at 114.

additional administrative costs. The state could keep track of those entering into a family contract.⁵⁶ The Commission’s concern can therefore be addressed through a system that sets forth the eligibility conditions to enter the contract, and asks the administration to merely check that such conditions are met.