Graeme Archer: Conservatives should oppose partnership "rights" for co-habiting couples

The Law Commission is about to propose the creation of a set of "marriage-lite" rights for couples who choose to live together without formally marrying. I was surprised by how visceral my opposition is to this proposal, and would be interested to know if this is a personal foible or a common Conservative position. Certainly Mary Kenny in yesterday's Telegraph shares my views, which is interesting.  Ms Kenny is a generous and thoughtful commentator, but I would characterise her as a "social conservative" and so not someone with whom I would generally expect to find myself in alignment.

It's undoubtedly the case that many couples share a home, perhaps start a family, often over a long period of time, and that one half of that couple can find itself in an unfortunate position if the relationship terminates. In such a case, it's a standard (for our age) response that the "government should do something", which means "the government should make legislation to protect the rights of the [perceived] injured party".

What harm is there in that? I have two philosophical objections, which also - sort of, kind of, maybe - summarise two of the main strands of contemporary Tory thought. One is essentially libertarian, and the other is socially conservative.

1 The Libertarian Objection

I have that free-love '60s hangover thing I know (must have been internalised early as I popped into the world in January 1970 - I blame the parents): I don't think there's anything wrong with people shacking up together. I think most people want to pair-bond; I can't prove this but it seems to be hard-wired into our DNA. I love the story in Plato's Symposium where Aristophanes explains the provenance of your "other half"- it's a god-given duty to strive to find the other half of your soul, the splitting ordained by Zeus to teach mankind humility. (You can make a less romantic thesis about why pair-bonding comes about, but it's not strongly germane to my argument and I'm a soppy old thing: Plato beats Bentham anyday in my book).

But in our present day culture, it is unlikely that you will find that person straight-off; usually it will take a few iterations of relationship-attempts, followed by a period of a broken heart, followed by another attempt. But most people do ultimately locate their other half, and settle down into connubial bliss. It's at that time, when a couple are ready to declare their "settled will" and are in agreement for their future commitments, that a legal contract should be put in place to protect the rights and set out the responsibilities of both halves of the pair.

If you believe that this iteration cycle is a fact of life, and that people require some growing and testing space before they know their own true desires, then we should keep that space free of government legislation.

2 The Social Conservative Objection

This might surprise the Editor, but I'm actually quite trad-Tory about marriage. I think it's the best institution for rearing successful children and for protecting the mental health of the participants. This is less to do with Love (which may, of course, be nothing more than a functional outcome of the existential angst designed into our DNA to ensure genetic replication - but I still prefer Plato's view) and more to do with the best cost-benefit for society. It's also the reason I was so passionately in favour of the Civil Partnership legislation for gay couples: yes, its absence was morally offensive in terms of equality of treatment; but I also thought it was intellectually ridiculous for "society" to affect disdain at the lax sexual mores of urban gay culture, while simultaneously locking gay people out of the institution which has done more to temper the biological drivers of young men than anything else: marriage.

But with the passing of the Civil Union legislation, precisely no couple is locked out of that institution. We are all free to decide for ourselves when we wish to commit to that steadying legal contract. Extending the "rights" to non-married cohabiting couples creates only a legal mess which will increase the total happiness only for the legal profession.

The Today interviewer yesterday made precisely this point to the Law Commission representative: if people want the rights of marriage, why not marry? The reply was horrifying. We were told that "not every woman can force her partner into marriage" and that therefore the state has some ill-defined duty to look after her interests. Now it goes without saying that women in abusive relationships require the assistance of family, friends, police and social services. But it does not follow from this that they require the assistance of the state to decide post hoc that they have a right to the property and income of their non-married partners. I see this as an appalling extension of thought crime: courts will have to decide how emotionally committed the players in a non-married relationship were, when they are carving up the property contents of that (failed) relationship. Think about your past life - if you have shared your flat with someone who ultimately left you, how "natural" would you feel it for a court to award that person a share of your home?

In conclusion: there are as many reasons as there are unmarried couples to explain why some people choose not to marry. It is no business of the state to attempt to force windows into the souls of the failed relationships, especially when the state has already provided a non-judgemental institution, open to every couple who wishes to form a legal contract for their relationship: it's called marriage.