Following the result of the referendum on marriage equality, now is a good time to ask ourselves, as individuals and a society, whether heterosexual or LGBT: does the contract of marriage create an institution where we would like to live?
The status of marriage should nurture and protect the economic interests of families, but it has inherent weaknesses that foster inequality. Action needs to be taken by opening up for discussion the subject of economic equality within marriage, with a view to legislation that helps minimise conflict between spouses and makes the contract of marriage more relevant and meaningful.
Couples who marry or enter civil partnerships tend to be at a romantic, idealised stage of their relationship, and so aren’t looking for potential future problems. Family law and prenuptial agreements tend to deal with rights and obligations that arise when marriages end rather than adopting a prescriptive approach that aims to protect the economic interests of families.
Joint finances
Many couples never discuss how they will organise their long-term joint finances unless they attend a marriage course, where different scenarios and hypothetical situations are discussed. Many participants in civil ceremonies don’t realise that when they sign the register they remain in many respects separate individuals in terms of how they decide to organise their finances.
Conflict can arise in relation to family finances for many reasons and changes in the law would help address this.
Examples of problematic situations are as follows: with children, one spouse ceases to work outside the home and has no ready access to money unless there is no joint account or credit card; a couple’s spending habits are out of sync, as one spouse might perceive the other as being mean or a spendthrift; a self- employed spouse is secretive about his or her income or financial position; one spouse is risk-averse or a risk-taker in relation to joint assets; a spouse has a gambling addiction.
A spouse who stays at home and does housework and looks after children is not recognised in law as being equal to an employee or au pair. Spouses who work for pay are under no obligation to give a spouse who works in the family home access to their bank account, or hand over cash or make pension payments to their benefit. Some spouses use money as a means of control.
Lack of information
Spouses aren’t entitled to access business accounts or be informed about decisions in relation to investments made by their husband or wife. A spouse who has control over his or her own business, farm or the family income can exclude the other spouse from having any knowledge or input into decision-making. Spouses may make bad investment decisions, gamble wildly or engage in criminal activity without the knowledge of their husband or wife.
In order to achieve equality in a married relationship, economic power needs to be carefully balanced. Changes in the following areas ought to be discussed with a view to enacting relevant legislation:
Freedom of information: Married couples ought to be obliged to give each other access to information about their businesses, debt decisions, savings, assets and employment. Third parties, including banks and accountants, ought to be obliged to furnish it to spouses of their clients during the course of their marriage.
A joint family account: Every couple ought to be obliged to set up a mechanism for the family finances. It could be a post office or savings account that is accessible to both spouses.
Fair pay and pension contributions: Those who work in the home as homemakers and child minders ought to be automatically given a percentage of pay and pension contributions from family resources.
Gambling and high-risk investments: Family assets ought to be protected by making all gambling and high- risk investment decisions and accounts subject to the joint consent of both spouses.
Such changes would affect the dynamic of the marital relationship for the better – and might also deter many who do not have the economic interests of their family as their priority from entering marriages or civil partnerships in the first place.
Rachel Fehily is a barrister, mediator and author of Break Up, Don't Crack Up: A Positive Plan for the End of Your Relationship in Ireland ( Orpen Press) familylawmediator.ie