Why cohabiting couples should not get the same rights as married couples

(photo credit BBC) It’s a situation that I wouldn’t wish on anyone. After 23 years and four children together, Siobhan McLaughlin’s partner died leaving her

(photo credit BBC)

It’s a situation that I wouldn’t wish on anyone. After 23 years and four children together, Siobhan McLaughlin’s partner died leaving her to cope on her own.

I’ve been married for over 32 years and can’t imagine the awfulness of losing the person who is closest to me. So I have a great deal of sympathy.

In trying to survive, Ms McLaughlin tried to claim a benefit as a widow and found out that she wasn’t entitled. The benefit is only for married widows. She wasn’t married. There will have been plenty of other benefits to which she was quite rightly entitled as a parent. Just not that one.

However yesterday the Supreme Court in its infinite wisdom ruled that this denial of benefit is incompatible with Human Rights law. Now the government will have to consider how and whether to change the law accordingly.

But how will they do it and should they give rights to cohabiting couples at all?

To many people, this is a no-brainer. Of course couples who have lived and loved together a long time should get similar rights to married couples.

But should they? There are three major problems that make this anything but a no-brainer.

The first problem is that giving automatic rights to cohabiting couples risks undermining the deliberate act of commitment that is the bedrock of stability. With less intentional commitment, we risk creating ever more family breakdown as a consequence.

The state regulates marriage at all for one very good reason. Not because, as the politicians who pushed through gay marriage insisted, it supports love and commitment. These should be none of the state’s business.

No, the state regulates marriage because the very act of making a promise to spend a life together tends to bring stability to couples that in turn benefits children. Clearly you don’t have to have children if you marry. But some 90 percent of those who marry do have children. There is no point in having a legal process of marriage if not to protect and benefit children. That’s also a much more robust argument for gay marriage, by the way.

But what happens if the state begins to attribute the rights and protections that it gives to married couples to cohabiting couples? It is in effect dismissing the case for official regulation of marriage (and its dissolution).

More importantly, by affirming cohabitation as the equal of marriage, the state is giving its approval to a family structure that is fundamentally more unstable than marriage. It is sending a clear message that there is no need for couples to make a formal commitment.

Less formal commitment will guarantee more family breakdown.

We already lead the developed world in family instability. Nearly half of our teens are not living with both natural parents. Surely the state should be doing what it can to reduce this dreadful statistic, not increase it. Instead of attributing rights to those who don’t or won’t commit formally, the state should be encouraging commitment and stability. That means marriage.

The second problem is that this will be a lawyer’s charter.

Ms McLaughlin’s case seems pretty straightforward. Spending 23 years together and having 4 children makes her and her partner look pretty much like a successful married couple.

But despite the preponderance of cohabitation as a new norm – there are now 3.3 million cohabiting couples – few couples remain together like this over the long term. Cases like those of Ms McLaughlin are not nearly as common as one might assume. Just one in three unmarried cohabiting parent families stay together. And among all families that remain intact, just 7 per cent are unmarried cohabiting parents. The remaining 93 per cent are married.

The reality is that the most cohabitees split up, in most cases pretty early on in their relationship.

So at what point do you draw the line and say these couples deserve protection and rights and these couples don’t? If you say two years or five years or ten years, it’s two years or five years or ten years from when? The arrival of a toothbrush? A suitcase? The signing of a joint tenancy or mortgage? We are told that Ms McLoughlin lived with her partner for 23 years. When did her cohabitation begin? And how would she or anybody else prove it?

American research shows that over half of all couples describe their start point as a gradual process rather than a specific date and one third can’t even pin down their start point to within three months of each other.

At a recent Law Society debate, I heard a lawyer from Ireland discussing a case of a couple who had separated after supposedly living for years together. However the man denied outright he had ever lived with the woman! How do you prove cohabitation?

And the third problem is that imposing rights on cohabiting couples is profoundly illiberal.

If couples want legal protection, there is a simple and cheap legal document readily available. For £85 or so and a couple of trips to the register office, it must be the best value legal document in the land.

But is it right to impose rights and responsibilities on couples who might have perfectly good reasons not to marry? What about a parent starting a new relationship but not wanting to share his or her financial assets with the new family and any subsequent children? I have a case in my own family like this where the couple lived together for 25 years but didn’t marry. It left the surviving partner in a very difficult situation. Almost everything went to the deceased partner’s children from a previous marriage. I suspect this was the real reason why they never married.

Should the law have forced a different outcome? I hope not.