August 1st, 2007


Complex Subject: No Simple Answer?

I think it's indicative of the confusion and complexity regarding the Law Society's proposals that cohabiting couples should get "similar rights to married couples" that the Guardian managed to come up with a grammatically illogical opening paragraph to their article yesterday on the subject.
Unmarried couples who split up will be given the right to make divorce-style claims for financial support from their partners, under final recommendations unveiled today.
Should that not instead read:
Unmarried cohabitees who split up will be given the right to make divorce-style claims for financial support from their partners, under final recommendations unveiled today.
As the original paragraph is written, the rights will be given collectively to the couple for them to collectively use. This would only make sense if the person or entity they could use them against was someone other than themselves. i.e. The following paragraph would make sense:
Married couples will be given the right to make claims for emotional distress against registrars who bungled their marriage ceremonies, under final recommendations unveiled today.
Why am I going on about this?

Because the proposal would not grant cohabiting couples additional, extra rights. It would instead change the "contract" between them to modify and merge their rights, imposing responsibities on each one vis a vi the other. But collectively, I'm not sure they'd have any extra rights.

And yet the BBC (as just one example) is running a poll saying: "Should cohabiting couples have the same rights as married couples?" as thought it is a zero-loss proposition.

Put like that, who's going to say no? It would be like asking the question, "Should world poverty be abolished?" when what's actually under consideration is a particular proposal whose backers believe would help reduce world poverty (abolishing debts, say).

How's this for an alternative way of stating the question. (Deliberately framed to demonstrate the opposite viewpoint):
At present, it could be said that there are two "models" of cohabitation that couples have, "casual cohabitation" and "committed cohabitation".

Casual cohabitation could be described as flatmates who are romantically engaged, but who still regard themselves as single people. Each wishes to be free to leave the relationship at any point, taking what is theirs and leaving what is not, and sharing jointly purchased items down the middle. At some point in the future they may marry and have children, but they very much feel that they are not ready for that yet. They have separate bank accounts, separate financial and legal lives, and want everything kept on a casual basis.

Committed cohabitation could be described as people who feel that their relationship is the equal of a marriage in every ways, but who have not actually got married, either because of a dislike of marriage itself ("We don't need a piece of paper to tell us we love each other") or because while they would like to get married, they'd like to celebrate it with a big party that they can't yet afford ("We're waiting until we can afford to get married"). People who are involved in a committed cohabitation should draw up various legal agreements to cover their relationship, but regrettably many (perhaps most) do not, often because of a mistaken1 belief that they have some kind of "common law marriage" status.

So the the form in which I would ask the question is this:
At present, people can casually cohabit for as long as they like, before deciding to "upgrade" their relationship to something more committed, either by entering into a formal cohabitation, or by getting married.

Should (for the greater social good) this absolute right be restricted/reduced so that people now only have the right to casually cohabit for a maximum of two years? (At which point, they must either break up or accept the legal consequences of their relationship becoming legally binding).
Now I'm not necessarily saying that's wrong. I've heard people express an argument that living together without any real commitment for a long period of time is morally wrong, and that if after two years you're not prepared to accept the full commitment of a "joined relationship" then you shouldn't be living with that person.

Morally, I probably agree with that sentiment. But I'm not happy with the idea of a moral sentiment being imposed by the state and its legal system.

Finally, I accept the proposition that people nowadys are living their lives in very casual messy ways that cause huge legal confusion when things go wrong. But as far as I can see, this proposal will only add more confusion and give people more excuses to not handle their affairs formally.

At the end of the day, there's no substitute for consenting adults agreeing things, writing down what they've agreed, and signing it. The state should be enforcing the contracts people have actually agreed to, not imposing its own contracts on them without their consent.

Even (IMHO) if it is for their own good.
1Mistaken because a) common-law marriage was abolished in England and Wales in the 18th century, and b) it wouldn't have applied to them anyway, because common law marriages were marriages, simply ones governed by various common law statutes rather than religious law. (For example, in order to qualify as a common law marriage you had to tell everyone that you were married and the other person was your spouse. So saying, "We're not married... we don't believe in marriage" meant by definition that you could not be considered to be married under common-law because you yourself had just said that you weren't married!)

But What Would You Do?

People reading my previous post about cohabitation could reasonably make the following point:
But do you not accept that there are a lot of women who would like to get married to their partners or, if not, sign some legal agreements, but cannot, because their (selfish) partners refuse - and then find themselves hugely financially disadvantaged when their (selfish) partners dump them?
I do accept that, and I recognise it's a problem. However, I think that when we start trying to legislate to control poor human behaviour (i.e. trying to pass laws to make people "play nice") I think we are on a very slippery slope.

Before I considered the drastic act of declaring people to be married after two years whether they like it or not, I would first perform two acts:

1) Create a "marriage lite" agreement, perhaps called a "Partnership Declaration". To sign this, a couple would simply have to go to their local registry office (or perhaps council office) show a few bits of ID, pay a nominal fee, and sign a few forms. This would give them much of the rights and responsibilities of a married couple, and would last until formally cancelled by one or both of the parties (again, by visiting a registry office). Note: Cancelling would only absolve the cancelling partner of future responsibilities.

2) Do a big public information campaign (posters; newspaper, TV and cinema ads) warning people that there is no such thing as "common law marriage" and urging them to get a partnership agreement.

Why a "Partnership Agreement"?

Because there are some people that don't want to get married, either because they have some kind of problem with the name/concept/idea, or because they want to save marriage for when they can afford a big ceremony.

I would then monitor the situation, see how popular the partnership agreements were, how many people got married, and how many cohabitting people signed other legal documents - and also see if it helped smooth out the resolution of relationship breakups.

And if that doesn't work... maybe we have to go for the totalitarian, nanny state knows best approach. For the greater good, and all that.