Sunday, November 13, 2005

Right To Privacy – Part 7

The best way to get a bad law repealed is to enforce it strictly.
-- Abraham Lincoln

Legal Arguments:

A. Coverture to Partnership to Independent Self Reliance-- The Abrogation of the Doctrine of Necessaries

“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” O.W. Holmes. The Path of the Law. 10 Harvard Law Review 457 (1897)

The original rational for the obligation of spousal support has long since passed. The obligation began in a time, and because of the principle of coverture.

“At common law, a woman’s legal identity merged with that of her husband; she could not own property, enter into contracts, or receive credit as an individual. This condition, known as coverture, created a need for the doctrine of necessaries because a married woman was dependent upon her husband for maintenance and support.” Abrogating the Doctrine of Necessaries in Florida: The Future of Spousal Liability for Necessary Expenses After Connor v. Southwest Regional Medical Center, Inc. Shawn M. Wilson. Florida State Law Review 24:1031. 1997 at 1032.

Coverture died with art. XI § 2 Fla. Const., § 708 Fla. Stat. (Married Women’s Property), and Merchant’s v. Cain, 9 So. 2d 373, 375 (Fla. 1942).

Whatever remnants of the tattered economic partnership model that remained after the Florida Constitution and Florida Statutes gave women equal property rights with men were further frayed when the legislature was compelled to make the dissolution of marriage statute and alimony provisions gender neutral as to not violate constitutional equal protection rights. Any shred of basis for an economic partnership model of marriage was torn asunder by the abrogation of the doctrine of necessaries in Connor v. Southwest Florida Regional Medical Center, Inc., 668 So. 2d 175 (Fla. 1995).

In Connor 668 So.2d , the Florida Supreme Court, when given the option of applying the doctrine of necessaries (the responsibility of the husband for the debts of the wife to third parties) equally to husbands and wives or abrogating the doctrine chose the latter. The Court determined it should abolish the doctrine. It determined it was the duty of the legislature, if it so chose, to create public policy by deciding whether to apply the doctrine equally to husbands and wives.

The final demise of economic partnership and the firm establishment of the model of economic independent parties in a marriage was cemented when the legislature, in 1996, with two different bills tried unsuccessfully to reinstate the doctrine. See Fla. HB 1211 (1996); Fla. SB 906 (1996).

Judge Overton’s dissenting cry did not prevail in the Connor 668 So.2d opinion. We do not need to interpret the consequences of the Connor 668 So.2d opinion, Judge Overton himself tells us the effect and meaning of the decision. ..“In this day and age, we should not weaken the obligation of marriage by eliminating the spousal duty to care for one another.” He also tells us…“The majority’s decision to abrogate the common law doctrine of necessaries departs from the partnership theory of marriage...”

Critically important is the clarion significance Judge Overton recognized the Connor 668 So.2d opinion to be…

“The majority’s abrogation of the doctrine of necessaries appears to shift the policy of the State by, in effect, requiring each spouse to take care of himself or herself. It also reduces the legal obligations of the marriage contract.”

Overton recognized the Connor 668 So.2d opinion eliminated the spousal duty to care for one another. He recognized the opinion departed from the partnership theory of marriage. He recognized the opinion changed the policy of the State to require each spouse to care for himself or herself. He recognized the reduction of the legal economic obligations of the marriage contract. This Court must do the same.

The Florida Supreme Court has declared the parties within a marriage economically independent. After dissolution of the marriage § 61.08 Fla. Stat., contrary to Connor 668 So.2d, makes the prior economically independent parties economically dependent.

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