Institutions and Relationships Policy in Western Liberal Democracies

Total Page:16

File Type:pdf, Size:1020Kb

Institutions and Relationships Policy in Western Liberal Democracies INSTITUTIONS AND RELATIONSHIPS POLICY IN WESTERN LIBERAL DEMOCRACIES BY CHRISTOPHER DAVID NIMMO A thesis submitted to the Victoria University of Wellington in fulfilment of the requirements for the degree of Master of Arts in Social Policy Victoria University of Wellington 2015 ABSTRACT This thesis explores the influence of institutions in the development of policies dealing with adult intimate relationships in New Zealand, Australia, and the United States between 1990 and 2014. Over this period, the social importance and acceptance of non- “traditional” relationships has increased in New Zealand, Australia, and the United States. However, despite all three countries working from what Gauthier describes as a “non- interventionist” approach to family policy, relationships policies have developed in markedly different ways in each. I argue that divergent translations of similar social trends are the result of differences between the structures of decision-making and institutions of interest representation in each country, and of policy legacies that make particular policy avenues more readily accessible. Electoral systems, parliamentary procedures and party structures govern which interests are able to exercise power within legislatures, while other institutions such as courts, bureaucracies, and law commissions contribute to the policy-making process in different ways. Countries are less likely to move in a non-interventionist or pro-egalitarian relationships policy direction where candidate selection procedures allow religious conservatives to play a significant role in both major parties, but religious conservatives have had little success in reversing non-interventionist policy changes after the fact. Instead, pro- traditionalist policy changes are typically minor regulatory changes or expenditures that are vulnerable to budget pressures. Legal interests expressed through law commissions or justice bureaucracies have a key role in enabling transitions to non-interventionist policies, particularly in the treatment of non-marital relationships, although the treatment of these relationships in core government activities such as taxation and welfare may also contribute to decisions in this area. ACKNOWLEDGEMENTS I would like to acknowledge Dr Sandra Grey, a wonderfully supportive and knowledgeable supervisor, and a fine example of a public academic. I would also like to acknowledge the other academic staff (present and former) of Victoria University of Wellington who have (knowingly or not) contributed to my interest in this subject, particularly Dr Patricia Nickel, Dr Carol Harrington, Dr Rhonda Shaw, Professor Dr Wan Rafaei Abdul Rahman, Dr Kathy Stuart and Professor Kevin Dew. My thanks also go to the administration team at the School of Social and Cultural Studies for their support and encouragement, to the cleaners who make sure that the University is a pleasant place to work, to the library staff who have run off after books and journals for me, to the people who maintain the New Zealand and Australia Legal Information Institutes, and to all my postgraduate colleagues for their support. Most of all I want to thank all my family for their encouragement of me over the course of my studies, particularly my mother Kathy, my father David, brother Jeremy, my Grandma Dalma and Avia Elizabeth. My Ave Gordon fits into a special category of his own, having both encouraged me with his wonderful smiles and contributed as Secretary of Justice to the legislation I studied. CONTENTS Glossary ......................................................................................................................... 1 Introduction .................................................................................................................... 3 Chapter 1: Literature Review ......................................................................................... 6 Institutionalism and policy ......................................................................................... 6 Comparative policy studies ........................................................................................ 7 Family law ............................................................................................................... 10 Chapter 2: Methodology .............................................................................................. 12 Case selection........................................................................................................... 12 Concepts ................................................................................................................... 13 Data collection ......................................................................................................... 14 Analysis.................................................................................................................... 14 Chapter 3: Socio-political contexts .............................................................................. 17 Relationship choice trends ....................................................................................... 17 Key institutions ........................................................................................................ 20 Chapter 4: New Zealand .............................................................................................. 26 Relationship entrance and definition ....................................................................... 26 Marriage ............................................................................................................... 26 Civil unions .......................................................................................................... 27 De facto relationships .......................................................................................... 28 Relationship exit ...................................................................................................... 30 Chapter 5: Australia ..................................................................................................... 35 Relationship entrance and definition ....................................................................... 35 Marriage ............................................................................................................... 35 Non-marital relationships..................................................................................... 38 Relationship exit ...................................................................................................... 42 Other Initiatives ....................................................................................................... 46 Chapter 6: United States .............................................................................................. 48 Relationship entrance and definition ....................................................................... 48 Marriage ............................................................................................................... 48 Non-marital relationships..................................................................................... 53 Relationship exit ...................................................................................................... 55 The federal government and marriage ..................................................................... 59 Chapter 7: Classifying Relationships Policies ............................................................. 63 Translating family policy ideal-types to relationships policy .................................. 63 Diverging models ..................................................................................................... 65 Chapter 8: Analysis ...................................................................................................... 70 Path dependency ...................................................................................................... 70 Interest representation .............................................................................................. 74 Conclusion ................................................................................................................... 85 References .................................................................................................................... 90 Legislative references .............................................................................................. 90 Other references ....................................................................................................... 93 Figure 1: Absolute minimum ages of marriage in the United States ..........................51 Figure 2: Divorce regimes in the United States …......................................................56 Table: Characteristics of relationships policy models ……………………………….64 1 GLOSSARY ABS: Australian Bureau of Statistics DOMA: Defence of Marriage Act ACL: Australian Christian Lobby EGTRRA: Economic Growth and Tax Relief Reconciliation Act AFDC: Aid for Families of Dependent Children EITC: Earned Income Tax Credit AIFS: Australian Institute of Family FLA: Family Law Act Studies FPA: Family Protection Act ALP: Australian Labor Party FPP: First-past-the-post voting system ALRC: Australian Law Reform FTB-B: Family Tax Benefit B Commission\ GLAAD: (formerly) Gay & Lesbian AZRS: Arizona Revised Statutes Alliance Against Defamation BDM Tasmania: Births, Deaths and GLAD: Gay & Lesbian Advocates and Marriages Tasmania Defenders CAFC: California Family Code HIRS: Hawaiʻi
Recommended publications
  • Sexual Citizenship and the Civil Union Act 2004
    University of Wollongong Research Online Faculty of Law - Papers (Archive) Faculty of Business and Law 2006 Sexual citizenship and the Civil Union Act 2004 Nan Seuffert University of Wollongong, [email protected] Follow this and additional works at: https://ro.uow.edu.au/lawpapers Part of the Law Commons Recommended Citation Seuffert, Nan: Sexual citizenship and the Civil Union Act 2004 2006, 281-306. https://ro.uow.edu.au/lawpapers/566 Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: [email protected] Sexual citizenship and the Civil Union Act 2004 Abstract This article analyses the parliamentary debates on the Civil Union Act 2004, which provides for legal recognition of same sex relationships, for stories of national identity. A close reading of the parliamentary debates on the Act suggests that although the supporters and opponents of the legislation seemed to be worlds apart, many told similar stories about New Zealand as a nation, and citizens within that nation, emphasising similar values and aspirations. Both sides told stories of citizens, of New Zealanders, as tolerant and fair, as forwarding-looking progressives who value stable long-term, committed relationships, warm loving communities for children, and strong families and family relationships. Both sides generally saw marriage as a positive institution, a cornerstone of society and a building block for society and the nation. While some talked of existing alternatives to marriage, such as defacto relationships, and there was some recognition that not all marriages are good ones, with a few notable exceptions, there was little mention of critiques of marriage as an institution and little or no positive mention of relationships outside of the paradigm of long-term committed monogamous relationships.
    [Show full text]
  • Recognising Non-Conjugal Relationships in New Zealand
    LORRAINE JOHNS RECOGNISING NON-CONJUGAL RELATIONSHIPS IN NEW ZEALAND: SHOULD WE EXTEND THE RIGHTS AND RESPONSIBILITIES OF MARRIAGE AND MARRIAGE-LIKE RELATIONSHIPS TO OTHER CARING RELATIONSHIPS? LLM RESEARCH PAPER LAWS 591: THESIS FACULTY OF LAW 2010 Table of Contents Chapter One I Introduction .......................................................................................... 1 II Structure of Thesis ................................................................................ 4 III Setting the Scene .................................................................................. 5 A What Are Non-Conjugal Relationships? ............................................... 6 B The Legal Recognition of Non-Conjugal Relationships: Why is This an Important Issue? ....................................................................... 8 C The Demographics of Non-Conjugal Relationships: How Common Are They? ............................................................................................. 9 D Examples of Non-Conjugal Relationships Already Recognised by New Zealand Law ................................................................................ 12 E Recognising Non-Conjugal Relationships - the Human Rights Dimension ........................................................................................... 17 IV Principles for Recognising Personal Relationships ............................... 18 A Equality ............................................................................................... 19 B Autonomy ...........................................................................................
    [Show full text]
  • LAW REFORM and the ADOPTION ACT 1955: a HISTORY of MISFORTUNE Research Paper for LAWS 526: Law Reform and Policy
    ISLA MIRREN DOIDGE LAW REFORM AND THE ADOPTION ACT 1955: A HISTORY OF MISFORTUNE Research Paper for LAWS 526: Law Reform and Policy Submitted for the LLB (Honours) Degree Faculty of Law Victoria University of Wellington 2016 2 Law Reform and the Adoption Act 1955: A History of Misfortune Law Reform and the Adoption Act 1955: A History of Misfortune The Adoption Act 1955 is now 61 years old and has been passed over for reform on multiple occasions. This paper analyses the failed history of law reform beginning in the year 2000 when a Law Commission Report was issued. This paper identifies why successive attempts by both Labour and National governments failed in reforming adoption over a sixteen year period. Despite multiple attempts at reform, this paper argues that law reform has failed due to a combination of other important governmental priorities, the controversial issues involved in adoption, the ability of the courts to reinterpret the legislation, and the small impact of reform. This paper concludes by using adoption reform as a case study to draw out three main general principles about law reform. The first is the necessity of reform; this paper argues when law reform involves a controversial human rights problem it becomes simultaneously difficult to progress due to political risk, but once that controversy is resolved the reform is no longer considered as necessary. The second is the opportunity to reform; when law reform is seen as less necessary because other agencies are able fix problems within the legislation, other more critical projects will displace a reform project on the hierarchy of political priorities.
    [Show full text]
  • The International Private Law Provisions in the Civil Partnership
    1 Recognition of Foreign Relationships Under the Civil Partnership Act 2004 Introduction The United Kingdom’s Civil Partnership Act 2004 came into effect on 5th December 2005, having received Royal Assent just over a year previously. It creates an institution for same-sex couples, known as “civil partnership”, parallel to but separate from marriage, and it replicates most of the rules of civil marriage in terms of entry, consequences during subsistence, and termination. Opposite-sex couples have no access to this new institution, just as same-sex couples have no access in the UK to the established institution of marriage. Maintaining the exclusivity of both institutions to the different gender mixes was crucial to the Government’s policy in promoting the legislation, designed to avoid the criticism that the Act represented an attack on the institution of marriage1. The United Kingdom was by no means the first country to introduce civil partnership for same-sex couples: the credit goes to Denmark2, though that country was quickly followed in the 1990s by the other Scandinavian countries and in the early 2000s by an increasing number of western and central European countries.3 In addition, civil partnership has been introduced, by a variety of names (the most common of which are “civil union” and “registered partnership”) in other (politically) western jurisdictions, such as some provinces and states in North America4, and New Zealand.5 1 See Civil Partnership: A Framework for the Legal Recognition of Same-Sex Couples (DTI, 2003) at paras 2.7 – 2.8 and Annex B; Civil Partnership Registration: A Legal Status for Committed Same-Sex Couples in Scotland (Scottish Executive 2003) at paras 5.7 – 5.8.
    [Show full text]
  • Register of Pecuniary and Other Specified Interests Summary 2017
    J. 7 Register of Pecuniary and Other Specified Interests of Members of Parliament: Summary of annual returns as at 31 January 2017 Fifty-first Parliament Presented to the House of Representatives pursuant to Appendix B of the Standing Orders of the House of Representatives REGISTER OF PECUNIARY AND OTHER SPECIFIED INTERESTS OF MEMBERS OF PARLIAMENT: SUMMARY OF ANNUAL RETURNS J. 7 2 REGISTER OF PECUNIARY AND OTHER SPECIFIED INTERESTS OF MEMBERS OF PARLIAMENT: SUMMARY OF ANNUAL RETURNS J. 7 MISTER SPEAKER I have the honour to provide to you, pursuant to clause 18(3) of Appendix B of the Standing Orders of the House of Representatives, a copy of the summary booklet containing a fair and accurate description of the information contained in the Register of Pecuniary and Other Specified Interests of Members of Parliament, as at 31 January 2017. Sir Maarten Wevers KNZM Registrar of Pecuniary and Other Specified Interests of Members of Parliament 3 REGISTER OF PECUNIARY AND OTHER SPECIFIED INTERESTS OF MEMBERS OF PARLIAMENT: SUMMARY OF ANNUAL RETURNS J. 7 Introduction Since 2005, members of Parliament have been required to make an annual return of their pecuniary and other specified personal interests, as set out in clauses 5 to 8 of Appendix B of the Standing Orders of the House of Representatives. The interests that are required to be registered are listed below. Items 1 to 9 provide a “snapshot” or stock of pecuniary and specified interests of members as at 31 January 2017. Items 10 to 13 identify a flow of members’ interests for the period from the member’s previous return.
    [Show full text]
  • The New Zealand Civil Union Act: New Challenges for Private International Law
    69 THE NEW ZEALAND CIVIL UNION ACT: NEW CHALLENGES FOR PRIVATE INTERNATIONAL LAW Joanna Campbell * This article discusses private international law issues which arise as a result of the Civil Union Act 2004, which came into force in 2005. The author first discusses what kind of recognition New Zealand may extend to foreign unions, including both civil union type relationships and same sex marriages. This discussion considers recognition under the Civil Unions (Recognised Overseas Relationships) Regulations 2005, recognition as marriage and other possible avenues of recognition. This includes a consideration of currently recognised and unrecognised relationships, and the desirability of the current approach. It also includes a discussion of the issues surrounding the recognition of these types of relationships generally; for example, validity, status and public policy. The author then considers what kind of recognition the New Zealand civil union may receive in foreign jurisdictions. I INTRODUCTION The enactment of the Civil Union Act 2004 and its coming into force in 2005 has given rise to much public debate. The Act also gives rise to less widely discussed issues in the area of private international law. Around the world various forms of recognition for domestic partnership have emerged.1 Many European countries, including the United Kingdom, have legislation similar to the New Zealand Civil Union Act 2004 which allows partners of the same or different sex to register their relationship. Other countries have made the more controversial move of amending their marriage laws to allow couples of the same sex to marry in the same way as different sex couples: namely Belgium, the Netherlands, Spain and some jurisdictions in Canada and the United States.
    [Show full text]
  • Increasing the Representativeness of Parliament in Aotearoa/New Zealand
    Increasing the representativeness of Parliament in Aotearoa/New Zealand What have been the effects, and what can be learned from the process? Tina Day 20-10-05 1cjd's new zealand comment (print vers)- october 2005.dot Introduction In 1996 the Mixed Member Proportional system displaced the ‘First Past the Post’ system in Aotearoa/New Zealand (A/NZ). One result seems to have been a sustained (although fluctuating) increase in the Parliamentary representation of women, to around 30%. Other results and learning points are less clear, but potentially of great interest to us in the UK. For example: • increased representativeness increases the legitimacy, standing – and volatility – of Parliament • openness on the part of politicians results in a strong connection between public and politician • equity is seen to be about the valuing of merit but may need more positive measures to progress further towards parity. Each of these issues is discussed in more detail in this paper. Key questions for the study included: • Does the change of system guarantee more women MPs, even with a future change of government – and will the number and percentage of women continue to rise beyond the 30% level that is perhaps the minimum proportion necessary for a legislature deemed to be representative of women? • Is there any evidence in the New Zealand experience that the culture of Parliament, together with its policy making, has started to change now that there are more women in the House of Representatives as well as being more visible in other top jobs? • What about all the other, hitherto under-represented groups – how have things changed for them? This article is based on interviews with 21 MPs from all the political parties represented in the 47th (2002-2005) Parliament (including about half the total of women MPs and about one fifth of all MPs) and a handful of further interviews with other interested parties (including former Parliamentary candidates).
    [Show full text]
  • I Green Politics and the Reformation of Liberal Democratic
    Green Politics and the Reformation of Liberal Democratic Institutions. A thesis submitted in partial fulfilment of the requirements for the Degree of Doctor of Philosophy in Sociology in the University of Canterbury by R.M.Farquhar University of Canterbury 2006 I Contents. Abstract...........................................................................................................VI Introduction....................................................................................................VII Methodology....................................................................................................XIX Part 1. Chapter 1 Critical Theory: Conflict and change, marxism, Horkheimer, Adorno, critique of positivism, instrumental reason, technocracy and the Enlightenment...................................1 1.1 Mannheim’s rehabilitation of ideology and politics. Gramsci and social and political change, hegemony and counter-hegemony. Laclau and Mouffe and radical plural democracy. Talshir and modular ideology............................................................................11 Part 2. Chapter 2 Liberal Democracy: Dryzek’s tripartite conditions for democracy. The struggle for franchise in Britain and New Zealand. Extra-Parliamentary and Parliamentary dynamics. .....................29 2.1 Technocracy, New Zealand and technocracy, globalisation, legitimation crisis. .............................................................................................................................46 Chapter 3 Liberal Democracy-historical
    [Show full text]
  • Melodrama and Gendered Mediation: Television Coverage of Women's Leadership “Coups” in New Zealand and Australia Linda Trimble Published Online: 15 Aug 2013
    This article was downloaded by: [Linda Trimble] On: 15 August 2013, At: 08:10 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Feminist Media Studies Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/rfms20 Melodrama and Gendered Mediation: Television Coverage of Women's Leadership “Coups” in New Zealand and Australia Linda Trimble Published online: 15 Aug 2013. To cite this article: Feminist Media Studies (2013): Melodrama and Gendered Mediation: Television Coverage of Women's Leadership “Coups” in New Zealand and Australia, Feminist Media Studies To link to this article: http://dx.doi.org/10.1080/14680777.2013.826268 PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content.
    [Show full text]
  • Births, Deaths, Marriages, and Relationships Registration Bill Government Bill
    Births, Deaths, Marriages, and Relationships Registration Bill Government Bill Explanatory note General policy statement Introduction This Bill— • re-enacts the Births, Deaths, Marriages, and Relationships Registration Act 1995 (the 1995 Act) to ensure all provisions are presented in an up-to-date and accessible form; and • gives effect to the recommendations arising from the Minister of Internal Af- fairs’ review of the access provisions in the 1995 Act (BDM access review), which was presented to the House of Representatives on 20 October 2016; and • updates and amends some operational provisions in the existing law; and • responds to 3 discrete issues raised in the Law Commission’s review of burial and cremation law. Policy objectives The policy objectives of this Bill are to— • future-proof the system of civil registration of life events (births, adoptions, name changes, sexual assignment and reassignment, marriages, civil unions, and deaths) (BDM information) for matters important to government; and • establish a medium-neutral platform that supports the provision of, and access to, all BDM services, which aligns with the Government’s Better Public Ser- vices objectives, including Result 10, which the Department of Internal Affairs (the Department) is responsible for: people have easy access to public ser- vices, which are designed around them, when they need them; and 296—1 Births, Deaths, Marriages, and Relationships 2 Registration Bill Explanatory note • regulate third party access to BDM information for authorised purposes, in- cluding the provision and effect of certificates that provide an official record of registered BDM information; and • balance the public interest in access to BDM information for legitimate pur- poses with the protection of at-risk individuals and individuals’ privacy inter- ests; and • implement the Law Commission’s recommendation for a new statutory system for notifying deaths, which will improve the timeliness and accuracy of death registrations, including the cause of death.
    [Show full text]
  • Mccarthy, F. (2011) Playing the Percentages: New Zealand, Scotland
    McCarthy, F. (2011) Playing the percentages: New Zealand, Scotland and a global solution to the consequences of non-marital relationships? New Zealand Universities Law Review, 24 (4). pp. 499- 522. ISSN 0549-0618 http://eprints.gla.ac.uk/58119/ Deposited on: 17 January 2012 Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk PLAYING THE PERCENTAGES: NEW ZEALAND, SCOTLAND AND A GLOBAL SOLUTION TO THE CONSEQUENCES OF NON-MARITAL RELATIONSHIPS? FRANKIE MCCARTHY* This article offers a comparative analysis of the property consequences of non-marital relationships in New Zealand and Scotland. The article summarises and critiques the New Zealand system, where de factos are dealt with alongside married couples through the Property (Relationships) Act 1976, before analysing the provisions of the Family Law (Scotland) Act 2006 which establish a scheme for regulation of non-marital couples entirely separate from existing divorce law. An alternative regime, based on assessment of a percentage entitlement to the claim a spouse would have received in equivalent circumstances, is then proposed as a solution to the difficulties in both jurisdictions. A. Introduction As part of the continuing discussion on the appropriate legal response to the social trend of non-marital cohabitation in western societies,1 a comparison of the systems employed in New Zealand and Scotland is an intriguing prospect. In regulating the property consequences following on the termination of such relationships, the two jurisdictions have adopted approaches as diametrically opposed as their respective positions on the globe. In New Zealand, non- marital partnerships have been equated with legally formalised relationships, meaning de facto couples participate in the same property sharing regime as they would do on divorce.
    [Show full text]
  • Essay: Family Law and Civil Union Partnerships – Status, Contract and Access to Symbols
    183 ESSAY: FAMILY LAW AND CIVIL UNION PARTNERSHIPS – STATUS, CONTRACT AND ACCESS TO SYMBOLS Graeme W Austin* This essay locates New Zealand's civil union legislation within the dynamic between "status" and "contract" that animates modern family law. "Status" concerns who we are; "contract" concerns the transactions we can enter. Because family law is concerned with affective relationships, it cannot apprehend people only as the atomised individuals anticipated by the modernist emphasis on contractual relations. Family law acknowledges the relevance to legal issues of "messy" issues of personality. Among the most complex and powerful aspects of personality with which the law concerns itself is love. Love affects who we are and law affects what love can be. Law provides and constrains the symbolic repertoire that helps organise the way we think about our affective relationships. The enactment of civil union legislation was an enormously positive step. However, by continuing to deny homosexuals the ability to marry, the New Zealand state persists in denying homosexuals a key part of the symbolic repertoire that is relevant to the way people in love can conceptualise their relationships. The transactions the state permits us to enter, particularly transactions that are expressions of love, affect the construction of our identities, illustrating once again the deep links that exist between who we are and the contracts we can enter. I INTRODUCTION Family law fits awkwardly with historical narratives that portray the "movement" in progressive societies as being "from status to contract".1 Expanding on the thesis expounded in Sir Henry Maine's 1861 Ancient Law,2 Professor Graveson writes: "The rights and duties, capacities and * J Byron McCormick Professor, James E Rogers College of Law, University of Arizona.
    [Show full text]