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Legal rights for cohabiting couples will create more problems than it solves

unhappy-cohabitation

It seems like a no-brainer, doesn’t it.

A woman – and in most cases it is a woman – lives with a man for a number of years, sacrifices part or all of career to bring up their children, whereupon he walks out taking all of his earning with him. The children have rights under the law. She has none.

It’s a clear injustice.

The obvious solution is to give unmarried cohabiting couples the same or similar rights, as if the couple had been married. How could any right thinking person with any compassion disagree with this?

This was the proposal for a debate held at the Law Society last week, against which muggins here was invited to oppose.

The law in England and Wales should extend legal rights to those who choose not to marry

But there is a whole raft of reasons why this would make very bad law, not least because the numbers involved are far smaller than anyone might guess and the potential for unintended consequences is far larger than might be apparent at first glance.

Let’s begin by looking at the overall scale of family breakdown. After all it is only because family breakdown happens at all that the law needs to step in at all.

Back in 1980, there were one million lone parent families. Today there are two million. In effect, family breakdown has doubled over the last three or four decades, a period during which the number and rate of divorces has actually gone down.

What has driven this epidemic of family breakdown therefore is not divorce but the collapse of unmarried families.

It’s a simple equation. Less relatively stable marriage PLUS more relatively unstable cohabitation EQUALS more family breakdown.

The scale of family breakdown is far larger than most realise. If you were to go into a classroom full of 15 year old GCSE students, you would find that 45% are not living with both natural parents.

Thus today nearly half of our teenagers have not experienced two parent family life, and it is going to get worse. That’s just about the single most shocking statistic in the UK and it should be shouted from the rooftops until we hear it discussed every day on the Today programme, BBC news and elsewhere across the media.

The situation is already bad enough. Any new law or policy or initiative needs to be framed within this big picture context. So how will it affect couple stability?

This is where it’s important – as I argued in the debate – to understand how commitment works, in order to think about how and whether a new law on cohabitation might influence individual behaviour.

When couples get together, they form a bond. That bond is what researchers call dedication and it comprises three factors: decision, identity as a couple, and sense of future. Marriage is thus the ultimate expression of dedication, as couples make a clear decision to be a couple with a permanent future. At least that’s the plan, even if it doesn’t always work out.

Many, even most, cohabiting couples start by putting a boundary around their relationship. Moving in introduces a constraint that makes their relationship more entangled and therefore harder to leave, all before they have become clear about the future of their relationship. The result is that fragile relationships, that might have otherwise never got going, drift on into childbirth and the hope things will improve. But without a clear commitment to the future, a mutual buy in, a sense of dedication, things don’t improve. One or both partners feel increasingly trapped and leave. This is the story of family breakdown in the UK today.

A US study published just a few days ago by leading researchers Scott Stanley and Galena Roades followed 315 young unmarried couples over a couple of years. They found that in roughly one in three of these couples one partner had a high level of commitment and the other low commitment. Even among the highly committed partners – the ‘strong link’ – levels of happiness tended to be lower, while conflict and aggression were higher. It should be no surprise to learn that in two thirds of cases, the less committed partner – the ‘weak link’ – was the man.

Now we are getting more specific. A new law that automatically attributes legal rights to cohabiting couples will do nothing to encourage men in particular to commit. In fact it seems far more likely that a new law would remove such a need altogether. Why lock yourself into a committed relationship when the law does it for you anyway?

As it happens, Scotland enacted such a law back in 2006. So we can see exactly how many couples face the kind of injustice with which I began.

A report for the University of Edinburgh estimated that 1,000 couples needed legal advice on this issue over the first four years of implementation. Divide by four. That means 250 couples per year facing potential injustice, of which half involve children.

  • So that’s 125 adults per year in Scotland (on the basis that it is only one adult in a couple who faces the injustice).

By contrast, there are some 55,000 births per year in Scotland. Under current rates, 45% of these children will experience family breakdown.

  • So that’s around 25,000 children per year.

Here’s the big picture.

  • For every one ADULT facing an injustice over which they have at least some control, there are already two hundred CHILDREN facing an injustice over which they have no control.

At the Law Society debate we heard from expert lawyers who talked about the real-world implementation of this law in Scotland, and also in Ireland. In both cases, they pointed out how difficult it is to define and prove cohabitation, as well as confirming the very low numbers involved.

The reality is that very few cohabiting couples indeed fit into the obvious injustice that I described earlier. Those that do might have assumed that they were in some sort of ‘common law marriage‘. Yet no such thing exists.

As I argued, there is therefore a clear case for a high profile campaign to tell couples about this. if you want to commit, sign a piece of paper, that very paper that is so denigrated by unmarried couples.

For those ideologically opposed to marriage, for whatever reason, I have no objection to a civil partnership scheme. Signing on the dotted line would clearly express dedication, a ‘decision about the future as a couple’. This would be good for commitment, good for family stability and therefore good for children’s prospects of being brought up by two parents who manage to stay together.

But don’t introduce a law that deals with the injustice faced by one adult and risk adding to the existing injustices already faced by two hundred children.