L'union fait la force
To whom it may concern: that's everyone
Two friends of mine came round on Sunday to discuss a matter of some importance. They wish to register their relationship as cohabitation, for which they require official assent. It has been refused.
They have asked me to write a testimonial, supporting their application. This I have done. They said “just a half page”. It is five pages long.
When I sent it to them for approval at 4 o’clock this morning, I said to them that I hoped it would change the refusal decision to one of consent; and that, if it fails to do that, we have already entered the new Nazi age. This, I hold to.
I believe that the refusal of this application speaks to fundamental flaws in officialdom, which is why I think it’s something you ought also to read. Here it is. The names have been changed.
To whom it may concern.
My name is Graham Vincent. I am a Belgian national, my address is ****. I hold national ID number ****. I am enrolled at the Law Society of Scotland as a solicitor under an Act of Sederunt of 15 October 1987. I am a sworn translator in the service of Justice in Belgium.
I have been requested by persons of my personal acquaintance, Mrs Teresa Stalin-Bryson and Mr Stanislav ****, to write a testimonial of support in their application to register their personal relationship in Belgium as legal cohabitation. It is my understanding that, at the time of writing, this status has been refused them by the Belgian State.
Belgium is a country that accords many rights and liberties to its nationals and residents. Those who are not holders of its passport may nonetheless acquire rights of residence and to work here, subject to certain qualifications laid down by law. These requirements have to do with the probity of the individual concerned, the cogency of the work he proposes to undertake, his ability to maintain himself in a satisfactory state of dwelling and civilisation, etc. Belgium will require him to adduce evidence that he does not pose a danger to the honest citizens of their country: he must prove his lack of criminal turpitude. Stanislav is from a nation that is outside Belgium and even outside the European Union. Since acquiring an interest to live, study and work here, these are requirements he has needed to obtemper in order to secure his legal passage to being resident in Brussels, with Teresa. He has done so, without reproach. He is contributing to Belgium’s economy with remunerated labour; he has contravened no law. He is an upright citizen, wherever he happens to come from.
Another acquaintance of mine has changed his name. He is Hungarian and wishes to distance himself from the land of his birth. Stanislav does not. He admits to being Albanian because Albania is where he is from. That is the sole portent of Stanislav’s nationality: he hails from there. That is the only portent of any nationality. Yet, one is given to suspect that Belgium’s civil service reads far more into the word “Albanian” than is portended by its eight simple letters. Something it doesn’t infer from other demonyms.
The requirements incumbent on Teresa are somewhat lesser in number from those incumbent on Stanislav. She is a Frenchwoman and, under the principal freedoms enshrined in the Treaty of Rome, she may seek work, set up a business and physically move among the 27 member states of the EU and needs only to notify the relevant state authorities of her intentions in that regard, otherwise there is no statutory hindrance to her doing so. She is an EU citizen. Stanislav is not. He is “Albanian.”
Legal cohabitation is in no way a compulsory form of household. Nor, for that matter, is marriage. But marriage and legal cohabitation are two possible forms of organisation for a household that are offered, for those who wish to avail themselves thereof, under Belgian law. In fact, Belgian law is so progressive in its current state that it would even permit these things if either Stanislav were a woman or if Teresa were a man. So liberal is the Belgian State.
However, the Belgian State is cognisant, as are the parties in the case in question, that the status of legal cohabitation, the one a quo here, accords, as well as a number of obligations, also a number of rights, and Belgium is rightly concerned that these rights and obligations should not be taken on without due and proper consideration: by the parties themselves and by the State which accords their status. Because some of these rights may be viewed as “financially attractive”, Belgium has set itself the unenviable task of distinguishing applications for legal cohabitation that satisfy the letter and spirit of its legislation from those that do not, are sham and presented in a manner that speaks to their insincerity. The task is an unenviable one because what Belgium must do is exercise its discretion under the law by giving due and fair weight and consideration to all the elements of the case, in a reasoned decision. The reasoned decision is the cornerstone of administrative procedure in this country. However, the reasoned decision that Belgium must render, and has rendered, is one that goes to the heart of “whether an application for legal cohabitation is genuine or sham.” The sole difference between the two being a difference in the state of mind of the applicants. Belgium must show that factors exist that cause it to doubt the parties’ sincerity to a standard that is sufficient to sway the balance of its judgment to a negative decision. And yet, it cannot actually enter the minds of the applicants to determine what state they are in. They must look instead to indiciae.
Belgium has an interesting history of this kind of mind-reading, taking sometimes quite extraordinary measures to circumvent states of mind of its own when engaging in even the legislative process. In 1990, after he had initially, in 1971, rebuffed endeavours by the representatives of the Belgian people to decriminalise abortion, King Baudouin was persuaded that to resist a second time this “right of the people” would perhaps have the potential to be seen as something less than the constitutionality of his position as a constitutional monarch might allow on interpretation. His Majesty was duly persuaded to allow passage of the bill on condition that his name appeared nowhere on it. This was awkward as long as he was the King, but less awkward if he was not. So, he abdicated and during the week when equerries were officially unaware of the King’s whereabouts, the bill was passed and became law, upon which His Majesty resumed the throne. A device was deployed that sought to reconcile the expediency of constitutional monarchy with the rights of a people to rule its own destiny: there can be no question but that the device that was applied to allow the passage of an act of parliament by Belgium’s democratically elected representatives in the face of opposition from their hereditary king, whilst resolving the King’s relationship with his maker, was engaged in for this purpose of allowing the king to fulfil his duties as constitutional monarch and for his people to fulfil their expectations of him in said capacity. In short, an elaborate ploy was enacted in order to assuage matters that troubled the King’s mind.
There can therefore be no question but that Belgium has historically taken extraordinary measures in order to accommodate a state of mind unilaterally declared by him whose mind it was. In the present case, the boot is slightly on the other foot, for it is not a king’s state of mind that requires to be proved; it is the state of mind of two very ordinary people. So, the question before Belgium’s civil servants is: to determine on a fair assessment of all the factors in their case whether Stanislav and Teresa have truly formulated within their own minds a consensual intent to legally cohabit, or whether they have delivered themselves up to a trick, a mendacity and a ploy, with the intention of extracting consent from the state, that accords with nefarious intentions for the sole purposes of profit.
At the current state of play, Belgium has arrived at its decision: that Teresa and Stanislav are tricksters. This conclusion has been arrived at on the basis of a number of material factors which include the nature of the accommodations at the house in Brussels where the two of them de facto live together. These include the size of the beds in which they sleep, the nature of the pillows upon which they rest their heads, the number of stairs that separate their sleeping quarters and the contents of their cupboards, and other factors of which it would be speculative of me to venture an opinion as to whether they had counted or not in the state’s decision.
I have said that the state’s task is unenviable. But it is not impossible. The default position of an application for legal cohabitation must be that it will be granted unless there is cogent evidence that points to its lack of sincerity. Under the old law of divorce, the interim period between marriage breakdown and the dissolution of the union was known as “separation from table and bed.” The old view was that a couple that no longer takes its meals together and no longer sleeps in the same bed may well remain married in law but has by that stage embarked upon separate existences in so far as their domestic arrangements are concerned. Separation of table and bed was the old term to indicate a breakdown in the relationship. It is a term of jargon that has passed into history and is a term that might generally be taken to indicate a statement of fact. But it is no such statement, for, whilst those who no longer have a common understanding as a couple may well move away physically from each other to eat and sleep in separate quarters, there is no inverse logic in deeming those who de facto do eat and sleep separately as possessing no intimacy otherwise to be found in a classic personal relationship of intimacy: the reasons can sometimes be crassly obvious – with the tolerance of Job, snoring ruins many relationships. In other words, the absence of common table and sleeping arrangements in a relationship may be taken to indicate a breakdown in the relationship but their absence cannot be deemed proof of the absence of the relationship itself. If it had been the intention of Belgium’s lawmakers to impose requirements on individuals in order to qualify for the status of legal cohabitation, that they must sleep in the same bed and that they must dine at the same table and that satisfactory evidence of these aspects be adduced to officials required to assess applications for legal cohabitation, then the principle of fair and due notice to the citizenry of the obligations incumbent upon them under the law would require that these matters be set down in suitable terms in the legislation on cohabitation. It is my understanding that no such requirements are contained in that legislation.
That is not to say that the officials that have reached a decision in Teresa and Stanislav’s case have committed an error of judgement in basing their decision on factors such as those mentioned. What I suggest, and I’m able to suggest from my own personal, very close relationship with Teresa, is that, if they have considered these matters in reaching their decision, there are still other aspects which are just as fundamental, if not more so, to a decision and which, unlike with the state’s officials, have been gained over personal exchanges with her in body, spirit, mind and soul. If officials were availed of these matters, then they are matters that those officials have overlooked, whether willingly or otherwise. There are elements in the decision which, I understand, have not been put to the applicants, that they may have a right of reply before a final decision be made on those aspects. That is not in line with my understanding of due process in this kingdom. And there are matters to which I believe undue weight has been accorded in reaching the decision. I understand that counsel for the parties has summarised the decision as being subjective. I respectfully disagree with counsel on that assessment. The decision is not in any way subjective. It is meticulously objective. However its objectivity is constrained to a very carefully selected number of criteria, which have been accorded a weight and importance that exceeds the weight and importance that ought reasonably to be accorded to them and, in support of this selective process, other matters have been left out of all consideration whatsoever, and that is not how Belgium should make decisions. I believe that that runs counter to the spirit of openness, fairness and equal treatment that is fitting to the case.
What I know about Teresa and Stanislav, which the Belgian state does not know and which I respectfully crave them to take into consideration in reassessing this application, is the irreproachable sincerity, honesty and devotion of Teresa, whom I have known for 30 years, whose trials and tribulations I have shared, to whom I have offered counsel, support, warmth and, when appropriate, criticism and guidance, in a spirit of true shared experience on life’s path — called friendship. I have shared her joys. I attended her marriage to Bill Bryson, an accomplished writer and journalist of no mean intellectual attainment. I have delved with her into matters metaphysical: in short the fundaments of the questions that men and women always ask, whether as philosophers or farmers: the meaning of life, the substance of the deity, the nature of devotion, a man’s ability to speak his mind and to be lent credence for that which he expresses about what is within him.
His Majesty King Baudouin of the Belgians has shown that a mortal’s relationship to his God could in 1990 still have a role to play in an ever more secular society that demanded the right to be able to abort a child. It is a matter of no small philosophical significance. In that case the state of Belgium bent over backwards to accommodate the troubles of their head of state’s mind. In a country that embraces as one of its prime guiding principles equality before the law, it cannot be beneath the dignity of the due process to which every person in Belgium is entitled to give equal due consideration to what is in the minds of these two individuals and to not impinge, by way of a select catalogue of very limited criteria, to brandish peremptory conclusions that seem almost to want to circumvent the very task with which the state is presented, by short-circuiting to a denial of a right enshrined in statute, one on which the peace of mind and future security of these two people may depend, who wish to build a life together. This law is the state’s statement of facilitation. It should not then seek to stymie the very opportunities it so magnanimously proffers, still less by the deployment of whimsical decision-making criteria.
This law, this legal cohabitation legislation: it does indeed present the officials who serve Belgium with an unenviable task. What else have they on which to base their judgment other than the simple minutiae? Not much, I’ll admit. But legal cohabitation is there in Belgian law; it is a possibility that is offered under the law to those who wish to avail themselves of it. Belgium may be cynical about certain applicants who wish to claim legal cohabitation under the law, and it is right to raise questions where questioning is appropriate. Whilst I doubt whether the state is under the same onus of proof as is incumbent upon it in a criminal trial, where it must adduce proof beyond all reasonable doubt, it nevertheless behoves the state, having proffered the possibility under no compulsion, to then evaluate applications under the legislation by including within the basis of its decision a consideration of all the factors of the case and not just a selection thereof that happens to accord with its gut feeling.
I can no more expand upon what the nature of the state of Belgium’s gut is than the officials of Belgium can prove one way or the other what the state of mind of the applicants is. These are things that cannot be read off an identity card or interpreted from a passport; these are things on which a man or a woman’s nationality has no bearing and they are matters which ultimately cannot be influenced by the width of the bed in which they sleep. But these are matters on which a man such as myself, who has been acquainted with one of the parties for three decades, can say with sincerity he has learned about one of the parties, such as allows him with like certainty, even beyond reasonable doubt, to assert that the association that Teresa has embarked upon with Stanislav is not whimsical or capricious; is of a moment and importance that allows me to state, again with certainty, that the relationship she is now in with Stanislav is one in which “a third party” is unquestionably also very much present: God Himself. Belgium may have weaned itself off the notion of an established church, may have adopted a far more ecumenical outlook in its secular society; but 33 years ago these were matters important enough to play on a king’s mind and on the minds of his counsellors. I believe that they are matters that should be given careful consideration by today’s Belgium’s public officials in reassessing this application; I commend it to them.