• Andrew Tettenborn

Why give cohabiting couples marital rights if they shun marital rites?

A couple who’ve been living together for years belatedly decides to tie the knot and put things on a proper basis. This is a situation becoming, surprisingly enough, rather commoner today. A matter for joy, you might be forgiven for thinking: indeed, if you were seriously old-fashioned you could add that it would have been even better if they’d got round to it sooner.

For most couples it’s also a good idea for another reason too: if a married (or civil-partnered) couple split up, or one dies, there are provisions for inheritance and property division, but in the case of old-fashioned cohabitation there are none: the parties, or the survivor, simply walk away with what, if anything, each then owns.

Oddly enough, however, in this topsy-turvy world such late decisions to regularise matters are regarded as a matter for concern – at least if you’re a member of the London establishment and a Guardian reader.

Witness in this connection a formal letter in Saturday’s paper from a number of luminaries, ranging from the chairman of the Bar to the directors of Rights of Women and ginger group Legal Action. The problem as they see it is that it’s wrong to expect people to do even as much as this.

If you want the state to give you rights, the state has every moral right to demand certainty by stipulating the formalities you have to go through.

The fact that they do engage in such behaviour merely points up the need to give them legal rights even if they don’t: in particular, to give cohabitees the same sort of rights to inheritance and property adjustment that they would have in the case of marriage (or civil partnership).

Grudgingly these worthy people accept that it might be a good idea to remind people that cohabitees don’t have rights and get rid of the comforting belief that living together is “common-law marriage” and treated the same way as the real thing. But this is only a temporary solution: the sooner it is treated similarly to the real thing the better.

Where do we start on this? If you are a Christian who believes in the value of committed marriage and the undesirability of ad hoc relationships, then your way is clear: it can’t be right to urge that the latter be treated in the same way as the former. But actually you don’t need to be Christian, or even very religious, to see what’s going wrong here.

For one thing, playing down the importance of formality in family relationships has its own difficulties. It’s true that most people setting up relationships do not think in terms of breakdown: but if you want the state to give you particular rights if the worst happens, the state has every moral right to demand certainty by stipulating the formalities you have to go through. It’s not even that they’re very onerous: a register office wedding is a simple enough affair, and a civil partnership, now to be available to opposite sex couples, simpler still.

Furthermore, it’s worth bearing in mind that the rights the state gives on marriage break-up are actually rather radical: courts have the right to deprive one party of property rights or order financial adjustment on a basis not so much of deservingness as need. Before we allow this we should at least be sure of what we’re doing. Secondly, it is all very well to say, in a well-meaning way, that “under current law it is possible to live with someone for decades and simply walk away without taking any responsibility” and to assert that changing this will secure “fair outcomes for millions of people”. For one thing it’s only partially true as regards any children of the relationship.

But more to the point, whether we like it or not some couples may actually choose not to get married, or go into a civil partnership, to preserve their own freedom of action and avoid complications on breakup. A power to make property adjustment orders between cohabitees would mean that in future many such couples, absent some expensively-drafted pre-non-nuptial settlement, would be in danger of sleep-walking into a legal regime with some similarities to the marriage they deliberately did not celebrate. This is by no means obviously desirable, or for that matter even just. Thirdly, there is an even simpler point. For all it is trumpeted as an effort to accommodate the common man and his partner and make the law keep up with society, every measure to assimilate cohabitation with marriage is a measure against marriage itself: if you can have the advantages of marriage without the bother of marriage, then – well – why bother?

If you can have the advantages of marriage without the bother of marriage, then – well – why bother?

Yet the advantages of marriage are palpable: 27% of couples that were cohabiting when their child was born have separated by the time the child reaches five, compared with 9% of couples that were married at the relevant time. And by palpable, we mean not simply moral: we mean happier children and less trouble for social workers in picking up the pieces.

But for the great and the good (who, interestingly, tend to be happily married themselves in spite of what they preach to others) that’s really neither here nor there. It’s so much easier to vote to give people what they immediately want than to work for what might actually be good for the community as a whole in the longer term. EndFragment

(Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as UKIP’s candidate in Bath)