A judge’s claim that marriage and shacking up are the same is nonsense — even a Hollywood A-lister knows it

What is the difference between marriage and cohabitation? According to Sir Nicholas Mostyn, a High Court family judge and one of the ultimate legal arbiters of such important questions — nothing. In a landmark speech last week, he argued: “It is not the role of the state, in my humble opinion, to go round telling people how they should form their relationships …

that is social engineering … the existing system of judicial equitable distribution” (that is, how the assets are distributed after a marriage ends) should be “extended to the unmarried, warts and all”.

In a lengthy and almost unintelligible digression, he said he did not agree with the large body of evidence that proved marriage was a more stable environment in which to raise children.

This strikes me as a classic case of an intelligent person wilfully misinterpreting not only the evidence but also what the majority of us innately understand: there is a significant difference between getting married and living together.

To be married involves a proposal, a decision and declaration of intent. It is impossible to slip absent-mindedly into marriage. For a start, there’s the whole business of the wobbly knee, the question, the yes, the bridesmaids’ dresses, bouquets, rubber chicken, dress, dyed silk shoes, two weeks in the Maldives — or if you are Mr and Mrs Clooney two big dos: one in Venice and one in Buckinghamshire. Of course, I’m joking. None of the above is remotely necessary apart from the question and the yes. (I got hitched with two witnesses at a register office.) But whether you go for the full Clooney or the legal quickie, what is unavoidable is the conversation and the commitment. Either way, a marriage says we are a team from now on, we share our money, we look after each other in sickness and in health. The point of the marriage is that pledge, that promise, the commitment that from then on you are a “we” not an “I”. To make that pledge in front of a posse of friends and family is particularly binding. Such vows are not broken lightly.

That is not to judge those who don’t get hitched. That is up to them. I’m glad we now have that choice, that we can live together and laugh and shag and no one bats an eyelid. I also think it’s great that the children of such relationships are no longer stigmatised as they have been for centuries. But that doesn’t mean living together is the same as marriage, or that the same rights should pertain.

Brad Pitt spoke for many spouses last week when he told of his surprise at how much the ceremony and the making of the commitment to his girlfriend of nine years, Angelina Jolie, had meant to him. “We have six kids so we felt beyond marriage already. But the kids were asking, and we thought it would be a lovely thing to do, for them and for us as a family, and it was all of that. But I was surprised afterwards at the effect getting married has had on us — it was more than just a ceremony, it meant a real depth of commitment. I feel like a married man — I really do.”

Brad is not the only one who was surprised by the power of marriage. Having attended both of my parents’ remarriages by the time I was six, I was determinedly anti it. It’s fair to say I never had a bridezilla complex. Indeed, I didn’t intend to get married at all — I didn’t see the point.

But when I was seven months pregnant, signing a massive mortgage with my partner and suddenly thinking about whether he would get my pension if I died and whether he’d have rights over the baby if we split up, I changed my mind. So we sneaked off to a register office in Oxford one sunny day and tied the knot.

To my surprise, I cried the whole way through the ceremony. Like Brad, I was amazed at how much it mattered and how much it changed things. Not only was I delighted once the baby came that we all had the same name, but I also felt reassured that the legalities on pensions and custody, if the worst should happen, were miraculously sorted out. And more than that, I felt a deep peace and security I hadn’t expected. Our relationship felt more solid. I liked being his wife. I felt chosen, claimed — in a good way.

That’s why cohabitation is so different from marriage. As Sir Paul Coleridge, former family law judge and founder of the Marriage Foundation think tank, puts it: “If you give cohabitees the same rights as married couples, when is the official cohabitation deemed to have started: after the pub one Friday? What counts?” There is an easy solution here. If you want legal protection should the relationship end — get married. It doesn’t have to be religious — just get the piece of paper. If the person you are with isn’t keen, then maybe they aren’t the right person to be having a child with. Some argue that it is unfair that those in civil partnerships have protection while so-called “common-law partners” don’t. But the point about a civil partnership is that, like a marriage, it’s something you decide to do — together. It’s a commitment and that is what makes marriage and civil partnerships different from cohabiting. And it works.

Whether or not Mostyn chooses to agree with the statistics, the facts are that marriage improves children’s lives. The Social Mobility and Child Poverty Commission reported last week that children of lone parents and cohabiting couples “are at a higher risk of poverty than those of married/civil partnership couples”, while the Millennium Cohort Study found that 31% of cohabiting couples with a baby of nine months had separated by the time their child was seven, against only 12% of married parents.

Of course there is a caveat here, that parents who marry tend to be older and richer and generally more stable than their cohabiting counterparts. But once those factors are stripped out, the marriage dividend still applies. The argument also works the other way.

If we give cohabitation the same rights as marriage, what happens to those who want to live together but don’t want to be married? Shouldn’t we have the right to like someone enough to share a fridge and a bed with them, but not reckon they are ultimately the one for the long term? Marriage is a choice, a pledge, a commitment — it is a conscious decision with big life-enhancing powers. To equate it with shacking up is a mistake.