Page 462 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

opt out of the status, they would sign a simple standardized form to that effect, get it
notarized, and file it with a court, all of which could be accomplished without a lawyer.

Ideally, prior to filing such a declaration, they would be given a pamphlet explaining
in simple language what rights they would be giving up by opting out. If the partners

disagree about whether to opt out, this gives substantial bargaining power to the party
desiring a legally enforced commitment, likely to be the party in a weaker economic
position or the caregiver of a child. The other party would then be put to the choice of

leaving the relationship and giving up whatever advantages they derive from it or having
the status imposed upon them, thus protecting the more vulnerable party.

Third, a system of registering their partnerships should be provided to cohabitants
under which they may become civil partners from the beginning of their relationship

if they wish. This would allow couples not only to avoid the two-year wait before
the status is imposed but also to enter a committed relationship unburdened by the religious
or gendered associations of traditional marriage. This relationship would involve both

the benefits and burdens of marriage, such as the duty of support and common ownership
of property upon its termination. Such a system has proved very popular with couples
in both France and the Netherlands. The partners should also be given the alternative

of designing their own contract, so as to avoid state family law provisions if they wish
but nonetheless be treated as married by third parties and the state.

The most common objection raised to a status-based and comprehensive system
such as I propose is that it interferes with individual autonomy – that is, people may

have obligations imposed upon them which they did not choose. This, of course, is the
reason I include the alternative of opting out or designing a couple’s own contract. Yet

it is true that the system would interfere with some individuals’ autonomy. This does
not trouble me very much. We are none of us really autonomous; we are all surrounded
by webs of relationship and obligation. Indeed, we owe our lives and nurture to them.

Some type of limited autonomy is the way we all realize our full personhood. Those
who wish to be fully autonomous should perhaps remain outside intimate relationships.

Other critics still raise the tired objection that such a system will have a negative
effect on marriage. Statistics from other countries – France, the Netherlands, Sweden,

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