Civitas Blog

Last week the Law Commission accused the law of being out of touch with modern society - but isn't it rather the Commission which is out of touch? Cohabiting rights proposals confusedly treat cohabitation as a distinct form of relationship to marriage and mirror the commitment of marriage. The problem is that the Commission envisages the millions cohabiting to be doing so out of principled objection to marriage. But that is not the picture which cohabiting patterns in this country present. On the whole cohabiting relationships are short-term: turning into marriage or dissolving altogether more often than surviving as long-term commitments. In this respect, the Law Commission is misrepresenting cohabitation by not allowing it to be sufficiently different from marriage. Cohabitation, in other words, frequently represents experiment rather than a rebellious section of the population seeking an alternative form of commitment to the 'institution' of marriage.

Instead of creating more choice automatic rights to each other's 'assets' would limit the potential for alternatives to marriage. If people have purposefully not entered into a partnership recognised by the state and all it entails, is it right that they should be coerced into it? The proposal is that cohabiting couples will be able to 'opt out' of legislation: should they have to opt out of something they never opted in to? The Commission is right in identifying non-commitment as a problem when children and dependency are involved, but forcing people - and basically we're talking about men - to commit is not the right answer. For a government which has shown no interest in supporting commitment through tax and benefit incentives for married couples, coerced commitment would be oddly inconsistent, as well as misplaced.

The cases of women who have brought up their children and been left with nothing after the breakdown of a long-term cohabitation form the most persuasive argument for cohabiting rights. Yet heart-rending as their stories are we cannot legislate for ignorance however tragic the consequences. The Law Commission would be far better off their energies informing the public of their rights. Each year the Commission argues that the majority of the population believe that there is such a thing as common law marriage. They said it again this year - yet they have made no attempt to combat it.