Nick Herbert responds to Law Commission's cohabitation proposals

The Law Commission today published a report proposing reform of the law affecting cohabiting couples property and finances when their relationship ends. The main thrust of the proposals is that couples without children who have been cohabiting for two years or more should be able to make a financial claim.

Nick Herbert, The Shadow Justice Secretary, has responded to the Law Commission's proposals saying:

"We will consider these proposals carefully.  However, they need to be tested against the key objectives of strengthening families and protecting children.  Our concern is that creating new rights for cohabitants in an attempt to ensure fairness - 'marriage lite' - could undermine the institution which gives children the most stability.

"It must be possible for couples without children to remain financially independent, if that is what they choose, without complicated and expensive legal arrangements.

"The proposals raise fundamental questions about the correct legal framework to govern families and people living together.  There needs to be a proper debate about these issues before the Government decides to introduce legislation."

Comments

[Sean Fear]

I think Graeme Archer said everything that needed to be said about this proposal some months ago.

[tired and emotional]

COMMENT OVERWRITTEN BY THE EDITOR

[tired and emotional]

Correct legal framework for to govern a private relationship? No legal framework is required unless one of them commits a crime... am I going mad here????

[Jon White]

Editor - do you not stop comments such as the above? No need for language like that. Just shows that the writer is not intelligent enough to make his/her point without recourse to profanity.

[Jon White]

This whole issue needs reform. The facts are these:

a. As a father of a child to whose mother I never married, I have NO rights of access whatsover. I do have a duty of financial responsibility. (Which I discharge faithfully). Thankfully, she has never denied me the right of access.

b. The lady concerned and I own a house. Her rights are SUBSTANTIALLY less than if we had been married when it comes to splitting this asset. I treat the situation as if we were married.

Both situations are patently unfair and wrong. We are sensible adults who both play fair. However, the potential not to do under current english law is crazy.

Co-habiting partners of BOTH sexes should share the same rights as those in a civil partnership or a religious union.

It's called equality. That could be a vote winner.

[tired and emotional]

My apologies for the intemperate language, I hope the comment is deleted.

Why should the state - let alone the Law Commission - have any say in regulating our relationships any further than they do already?

If you want rights over each other GET MARRIED. If you don't stay single or co-habit. If you really need more security then enter into a legal agreement at your own expense and get it for yourself.

God in heaven.

[David]

Cohabiting partners of both sexes can currently inform the state that they want to be treated in this way. It's called getting amarried or entering a civil partnership.

The state should not presume to enforce an arrangement unless it is asked.

[Jon White]

But surely by denying the same rights to those who for whatever personal reason elect not to get married, or enter into a civil partnership, they ARE enforcing an arrangement, are they not?

Are we agreeing or disagreeing? I'm not sure!

[Patriot]

Personal view. I do not accept that the law discriminates against those who choose not to marry. Those who want a legal framework to their partnership can choose to marry, those who do not want that framework are free to choose not to marry.

For some folk, cohabiting without marriage is a perfectly valid lifestyle choice, and it is right that the law allows that choice and respects it.

Having chosen not to marry, however, it is also right that couples accept the consequences of their decision.

That's what freedom of choice is all about.

[tired and emotional]

You are disagreeing, clearly. Which should be obvious to you Jon.

The rights and responsibilities of marriage or civil partnerships are granted only when two people decide to amend the normal single legal status granted as an adult by entering into contracts with each other.

You cannot argue that co-habitees - people who elect not to change their status in the same way - are being denied anything because co-habitees are simply two people who have chosen to maintain their normal single adult status.

The fact remains that you have a choice about your status and furthermore you may go to a lawyer and have an agreement drawn up that governs how things will be apportioned should you split up, which you will as you ain't married.

[Jon White]

Patriot; Would you not accept that your personal view means that those who elect not to go through a legal or religious procedure are denied certain rights by the state? If so, how is that Freedom of Choice?

(Also, the law currently is sexist. It is biased towards the female in terms of child access/care - but then I suppose so is all divorce law - and towards the male financially. This cannot be fair, can it?)

[TomTom]

As a father of a child to whose mother I never married,

It is a pity that as hetersexuals you could not marry or form a civil partnership. Was there some reason for this omission of sufficient importance that the rest of the population has now to be careful how long they permit roommates to live under the same roof ?

[ToMTom]

Would you not accept that your personal view means that those who elect not to go through a legal or religious procedure are denied certain rights by the state

You're so right - I want a shotgun and see no reason for all that licence stuff - so I think I should be able to buy one at Tesco.

Why should I have to register to vote under threat of criminal penalty ? They should just let anyone in the country vote if they are there on election day

[Sean Fear]

"Patriot; Would you not accept that your personal view means that those who elect not to go through a legal or religious procedure are denied certain rights by the state? If so, how is that Freedom of Choice?"

The converse of that is that they do not have the obligations that either married couples of civil partners have chosen to undertake.

If you want the benefits (and burdens) of marriage, then get married. If you don't, don't.

[Jon White]

Tired and Emotional; you really are displaying a somewhat bigotted attitude here I'm afraid.

"because co-habitees are simply two people who have chosen to maintain their normal single adult status"

Really? Justify that, please. I find it quite insulting. Plenty of co-habitees enjoy life-long, monogomous relationships. Co-habiting in itself is a committment, especially if it involves joint property ownership or shared parenthood.

"should you split up, which you will as you ain't married"

RIGHT! So married couples don't split up?

I feel that your views reflect your own prejudices. Why should people be forced to have a religious (or, I accept, civil) ceremony, or enter into a legal arrangement to 'legitimise' their relationship? That is state control, not freedom.

[Jon White]

Sean Fear:

"The converse of that is that they do not have the obligations that either married couples of civil partners have chosen to undertake."

Of course they do. they have joint mortgages. They have responsibility for off-spring. These are EXACTLY the same responsibilities that married couples have.

[Sean Fear]

Why should people be forced to have a religious (or, I accept, civil) ceremony, or enter into a legal arrangement to 'legitimise' their relationship? That is state control, not freedom.

Far from it. Why should co-habiting couples have the obligations of married couples imposed on them, even when they've never chosen them?

That is State control.

[Sean Fear]

John White, you are quite incorrect. The law imposes no obligation to pay maintenance to someone you co-habit with, and you can end the relationship at a moment's notice, without having to get divorced.

[Christian Mason]

If the Conservatives are serious about "mending our broken society", then it follows that substantive support for the institution of marriage must be enshrined by law. If cohabiting couples choose not to marry then so be it, but they cannot expect the same legal rights as those who have.

Where children are concerned, fathers must be expected to contribute to their upbringing - obviously. But a right to financial claims after a two year (childless) relationship is patently absurd and wrong. I haven't heard such a ridiculous proposal for many a year and I hope the Conservative Party object in the strongest possible terms.

[Jon White]

TomTom:

"It is a pity that as hetersexuals you could not marry or form a civil partnership. Was there some reason for this omission of sufficient importance..."

There was, but that is personal and our business. The fact we made this choice (remember 'choice', ofeten coupled with 'Freedom') should not effect our legal status.

"You're so right - I want a shotgun and see no reason for all that licence stuff - so I think I should be able to buy one at Tesco.

Why should I have to register to vote under threat of criminal penalty ? They should just let anyone in the country vote if they are there on election day"

Rather silly comparisons, don't you think? Of course the state should legislate against gun ownership (unless you're an NRA member, of course). That is about the state's duty to protect it's citizens. How does enforcing 19th century codes of morality with regard to monogomous relationships protect the state? Likewise with your analogy to voting.

The state has to make rules on some things. I don't see why it has to on this issue.

[Sean Fear]

So, two people buy a house together, and immediately the State should impose all the obligations of marriage on them, Jon? Is that what you call freedom?

I just don't see what your complaint is. If you want to be treated as married then get married.

[Jon White]

Sean Fear:

"John White, you are quite incorrect. The law imposes no obligation to pay maintenance to someone you co-habit with, and you can end the relationship at a moment's notice, without having to get divorced."

You did not read what I said. Our union, not marriage, produced a child. I have no duty to pay her anything. I DO have a duty (quite correctly) to support my son. I do just that.
I do not, as the father of an 'illegitimate' child born prior to 2002, have ANY rights of access.

Belive me, I have seen countless lawyers. I know this is the case.

[a- tracy]

I suspect that this proposal is to reduce the funding that the state has to provide to deserted co-habitees of either sex who get kicked out with nothing when it suits the asset rich partner who did't want to commit (probably in order to protect their assets in the first place).

Or the situation where a co-habiting partner is left homeless and needing state support (even if previously in a relationship for two decades or more) and the asset rich 'single' partner decides to will or place in trust their assets to their children from another relationship.

Two years is ridiculous but I can understand the call down on an asset that has been shared for a decade or more.

[Jon White]

Sean Fear:

"So, two people buy a house together, and immediately the State should impose all the obligations of marriage on them, Jon? Is that what you call freedom?"

NO. The state should afford them the same rights as married couples. i.e. exemption from inheritance tax between each other, equal rights for child care/access, equal financial responsibilities.

[Old Kent Boy]

I current live with a few of mates and we have bought a TV and a few other things for the house. Should we get legal protection if someone decides to leave the house and wants to take the TV with them or wants their share back? Are we co-habitees. The fact that 2 of my friends are now dating affects this how? If they split up will one of them get custody of me?

There is a legal minefield in this. If co-habitees want legal protection, marriage (no need for a big ceremony, just pop down registry office at lunch) will cover all the bases. Or set up somethig with the solicitor.

there is no need to force these laws on every couple that want to try living together for a bit - as I am soon to do (want be taking the TV with me).

PS Most of the child issues are covered by the Child support act and these are being developed in the Child maintenance bill.

[Sean Fear]

Actually I did read what you said. You said "Of course they do," in response to my argument that cohabiting couples did not have the same legal obligations to each other as married couples.

They don't. Cohabiting couples have no legal obligation to support each other. Marriage is a stronger commitment than choosing to share a house with another person, which is why the law treats it differently.

[Jon White]

Christian Mason:

"If the Conservatives are serious about "mending our broken society", then it follows that substantive support for the institution of marriage must be enshrined by law. If cohabiting couples choose not to marry then so be it, but they cannot expect the same legal rights as those who have.

WHY? Why shouldn't they? What is so special about a piece of paper? You state your view, as you are entitled, but you do not justify or back it up in any way!

Where children are concerned, fathers must be expected to contribute to their upbringing - obviously. But a right to financial claims after a two year (childless) relationship is patently absurd and wrong. I haven't heard such a ridiculous proposal for many a year and I hope the Conservative Party object in the strongest possible terms.

Your second paragraph I agree with completely.

[Sean Fear]

"NO. The state should afford them the same rights as married couples. i.e. exemption from inheritance tax between each other, equal rights for child care/access, equal financial responsibilities."

So, the benefits of marriage, then, with none of its responsibilities? That doesn't seem very fair, either to married couples, or to people who live singly.

[Jon White]

Sean Fear:

"Actually I did read what you said. You said "Of course they do," in response to my argument that cohabiting couples did not have the same legal obligations to each other as married couples.

They don't. Cohabiting couples have no legal obligation to support each other."

This I accept. My apologies for not reading correctly what you wrote.

[Jon White]

Sean Fear:

"So, the benefits of marriage, then, with none of its responsibilities? That doesn't seem very fair, either to married couples, or to people who live singly."

That only works if you don't think that co-ownership of property, or being a parent of a child doesn't bring responsibility.

[Sean Fear]

So, if I understand you correctly, are you saying that unmarried couples, with children, should be treated as married couples, but unmarried couples without children shouldn't?

[Jon White]

No, you don't understand me correctly.
I am saying that if people co-habit (and I accept that a time limit may be needed for the length of co-habitaion, though what that limit is, I don't know) should have the right to be rid of the hated IHT which spouse are, that they should have equal rights to the equity in a house, irrespective of relative contribution, the right to be the beneficiary of company pension schemes, etc etc. This should be the case whether or not the union has produced children.

The major benefits of such change would tend to be women. What I am arguing, if in law, would be detrimental to my own situation. I am arguing that that is the fairer way.

[Patriot]

Jon, you can be married without a religious ceremony - yes, it is a legal process - but then aren't you saying you want legal rights? I'm not sure how you can have that without entering into a legal agreement, which is what marriage is.

What is being proposed is that the government presumes, on your behalf, that you have already entered into that agreement once you cohabit, which is what, if I read your post correctly, you would choose to avoid.

Can you see that paradox? What you are seeking is the protection of a legal contract without a legal contract. If the government changes the law so that cohabitees have the same rights and responsibilities as married couples, then why not just get married in the first place? Where then does choice go?

[Jon White]

Patriot;

An extremely well written and sensible post.

I can see the paradox that you put forward.

I would argue that we currently have a situation where the reverse applies: In order to gain legal rights, the state insists on some sort of ceremony. Many (mainly women, but not always) people are now 'at risk' because their co-habitation does not afford them legal rights. Many labour under the misguided belief that a 'common law' wife has legal status in England. They do not.

My argument is that the current law needs reform. I cannot state that I know how it should be reformed in total, but that it needs review. Co-habitees should have more rights.

[Traditional Tory]

If these couples aren't married there's no reason why they should receive any special favours from the state.

Possibly we can't stop this country becoming a moral sewer, but we don't need to encourage it.

[Christian Mason]

Jon White:

Surely we should all be in agreement that marriage - whether religious or purely civil - is the best arrangement for a child to grow up in. Statistics repeatedly show this to be true as said relationships tend to survive longer when a contract is in place. Sad but it's true.

In terms of a cohabiting relationship with no children, any shared financial commitments (such as a mortgage) should already be covered by law, provided the commitment is legal rather than an informal arrangement. I simply don't see where one partner could justify any other type of finacial claim in these circumstances. Could a woman (or man) demand payments from the other party because of lost earnings? Why if there is no career sacrifice to raise a family? There's nothing inherently special about a childless relationship that warrants legal protection. If partners want this kind of protection then sign a legal document - marriage!

My girlfriend of seven years lives in Spain. I've made career sacrifices to go and live in her village. We're unmarried and childless. If we spilt up should I have the right to take her to court? Of course not.

[Jon White]

The implication of that last post Traditional Tory is really offensive. You imply that people who live together who are not married are creating a moral sewer.

I am truly sad that such bigotted viewpoints still exist in Britain. I'm even sadder that someone who calls himself a Tory should share them.

Frankly, shame on you. I pity your small mindedness.

[Sean Fear]

As it happens, I don't think it would be fair to have property divided equally, or pension funds being obliged to pay out to co-habitants, simply because people had lived together for a long time.

[Jon White]

Christian Mason:

I'm not sure that I accept your first point. Many children grow up in abusive homes, where the parents are married. Is that better than a loving home where the parents aren't? I think not. I have nothing against marriage whatsoever - a fine institution for those that chose it.

Shared financial relationships are covered by law, but the law is unjust. For example, if a couple jointly own a house, have done for say 20 years, and they split - if they were married it would be a simply 50/50 split. If they are not, then the allocation of the equity is done according to contribution. This is potentially very unfair on women who tend to earn less and thus put in less financially.
If there is career sacrafice (again, almost always by the female) this discrepancy becomes greater. Women in co-habiting relationships get royaly 'sc**ed' finacially, men get the same when it comes to having access to their kids.

[Christian Mason]

Old Kent Boy raises an interesting point. What about two friends buying a house together and cohabiting over a long period of time? Should they have pension rights and equity in the property regardless of contribution?

[Jon White]

Old Kent Boy's point was a fun one, but somewhat irreverant and irrelevant! No one is arguing that people who live together as friends should enjoy these rights. It's people who live as partners that should.

[Matt Wright]

I'm sorry but on balance I do feel that if people want the full set of rights there is a process called getting married (or having a civil partnership ceremony) and most especially if they intend to have children, when we have special duties and responsibilities that need framing in public.

Matt

[Jon White]

Sean Fear:

"As it happens, I don't think it would be fair to have property divided equally, or pension funds being obliged to pay out to co-habitants, simply because people had lived together for a long time."

Fair enough, your view to which you are entitled. I don't share it. Your view pre-supposes that a marriage relationship (or Civil Partnership) is somehow 'superior' to a co-habiting one, if you believe what you do.

I cannot share a view which, by definition, is making a moral judgement on someone else's lifestyle choices.

[Christian Mason]

And may I ask how the Law is supposed to tell the difference?

[Andrew Lilico]

As I've noted before, it seems to me that the pro-marriage position is to deny cohabitees the right to opt out of their responsibilities. Thus they should indeed have the responsibilities of married couples and the weaker party should have the protection of the law even if the other party selfishly refuses to engage in a public exchange of promises. All cohabitees should be made to understand that they are married, whether they like it or not. Perhaps then they might go to the trouble of actually engaging explicitly in the promise-exchanges, so that they know what they've committed to.

[Jon White]

No need to apologise, Matt - you are entitled to your view. However, I would say to you the same that I said to Sean Fear.

[Common Sense]

I neve thought I'd find myself agreeing with Traditional Tory, but he's bang on the money here.

Why on earth should people be allowed to make legal claims on each other after living together? This is a further march towards a ghastly American-style litigation culture.

Why are we forever treating people like children? As adults we should be allowed to make free choices and live wlth the consequences. Civil society and the informal, organic trust between people is being undermined by New Labour.

Far from being an accidental by-product, I suspect it's a deliberate policy. They failed to bring the economy under state (ie - Labour) control so now they are trying to effectively nationalise people.

And some here have the gall to say there's no difference between Cameron and Brown.

[Philip]

I totally agree with Christian Mason (1754). As he says, the Conservatives should object to the proposal in the strongest possible terms. If they don’t, all the talk of support for IDS’s group’s work and about supporting marriage will be meaningless.

Nick Herbert’s statement therefore might seem a bit weak, although him saying “Our concern is that creating new rights for cohabitants in an attempt to ensure fairness - 'marriage lite' - could undermine the institution which gives children the most stability” is welcome.

I feel that much talk these days about ‘choices’ or ‘liberalism’ might not be based on a sufficient appreciation of right and wrong. Surely some choices must indeed be better than others? This must be shown by the objective studies that IDS has pointed to, that prove that generally children have the best chance in life when brought up by married mum and dad. While not wanting to hurt single parents, who are sometimes in that position through no fault of their own, at least the discrimination against marriage in the tax and benefits system should be ended. The Law Commission’s proposal therefore would further undermine marriage.

[Jon White]

Christian Mason:

"And may I ask how the Law is supposed to tell the difference?"

Don't understand your question. the difference between what? And why does it need to?

[Jon White]

Common Sense:

"I neve thought I'd find myself agreeing with Traditional Tory, but he's bang on the money here"

So do you agree that people who co-habit are living in a 'moral sewer'?

[Jon White]

"This must be shown by the objective studies that IDS has pointed to, that prove that generally children have the best chance in life when brought up by married mum and dad"

No argument. BUT: Where does it say that mum and dad must have a piece of paper that says 'we are married' ?

[Common Sense]

Trust meddler Lilico to be pro-government interference. The fact you see human relationshlps as inherently exploitative, requiring the strong arm of nanny state to mediate them, says everything.

If you want financial protection, get married. lf your partner refuses, move on. People are adults - they have the choice.

[Jon White]

Sorry, typing too fast - misread the last post. Ignore it. I don't accept that Mum and Dad must be married for the children to have the best chance. I do accept that they should be together.

[Jon White]

Answer my question, Common Sense. Do you, or do you not, agree with Traditional Tory that co-habitees are living in a moral sewer?

[Christian Mason]

Jon White:

I know plenty of people who met boyfriends / girlfriends at University and sustained relationships for many years, but were obviously not going to lead to marriage and children. In some cases they bought flats together and then had to deal with the consequences when their relationships ended. Are you saying they should all be entitled to split the equity evenly despite the contribution? Should they have a share of each others pensions?

How can the Law differentiate between a serious and a non-serious relationship if there is no marriage and / or no children? How can the Law even gauage whether the relationship is real or not? Do we really want to open this can of worms for our already overburdened legal system?

[Andrew Lilico]

Jon@19:08

>I cannot share a view which, by definition, is making a moral judgement on someone else's lifestyle choices.<

Are you serious? You really believe that no-one is entitled to make moral judgements on other people's lifestyle choices? So if someone rich and talented, who with a bit of application might discover some wonderful medical cure, decides to squander his life on drink and drugs and die in a squat, I'm not entitled to say that he was selfish and self-indulgent? If someone decides to go to live in Somalia and become a hired murderer for a gang, because he thinks it a bit of a laugh, I'm not entitled to criticize him for that?

I don't believe you really believe this. I think you are just saying that, although you think it's okay for *you* to judge other people's lifestyle choices, no-one else is allowed to have or express any opinions about yours. Well, tough!

[David]

"In order to gain legal rights, the state insists on some sort of ceremony."

No, it doesn't.

You have inherent rights as an individual. If you wish to amend those rights, you simply apply for a variation from the state. (No ceremony is needed-simply two witnesses to a declaration, much like any legal transaction).

No one is discriminated against-all those that want the change apply.

[Andrew Lilico]

"Common Sense"@19:17

>The fact you see human relationshlps as inherently exploitative<

I'll be charitable and assume you lack understanding, rather than are aiming to deliberately distort. I do not believe that "human relationships are inherently exploitative". I do believe that cohabitation relationships are sometimes exploitative, and always imprudent. Ethically, cohabitees are imprudently married, because they have taken on the ethical duties to one another of marriage without explicitly stating what their own duties are and establishing that the other party understands the duties they have in return.

The state does not "meddle" by having marriage relationships, any more than it "meddles" by creating property rights, or "meddles" by outlawing theft or murder. (Or perhaps you believe all state action is "meddling"?)

[Common Sense]

No, Mr Whlte - and I doubt that's what TT meant.

A society that encourages fecklessness, and compensation-seeking for every hurt, however private, is indeed a moral sewer.

[Scotty]

"If you want the benefits (and burdens) of marriage, then get married. If you don't, don't."
Sean, that is the way it should be and that gives everyone the freedom to make their own decision on this.
I heard the argument today that the law must be changed because some people who live together *think* mistaken that they have some sort of common law legal rights and therefore if the relationship breaks up they are left adrift. This implies that the state must protect those that can't even be bothered to check their legal status never mind bother to protect themselves by some other legal means.
Marriage is a choice but to now change things so that those who do not wish to get married must *opt* out of a similar legally binding relationship is just absurd.
You hit it on the nail when you describe it
as "State Control"
This is fast turning into the most illiberal and dangerous government we have ever had.

[TomTom]

Of course they do. they have joint mortgages. They have responsibility for off-spring. These are EXACTLY the same responsibilities that married couples have.

Posted by: Jon White | July 31, 2007 at 17:50

If I thought you were serious Jon White I should recommend you be sectioned......

This argument is so funny...so if I buy a home with my sister and we take out a joint mortgage you think the State should declare us "married" - and if we have children you insist that Styate declares us married.........likewise father and daughter

[TomTom]

Of course they do. they have joint mortgages. They have responsibility for off-spring. These are EXACTLY the same responsibilities that married couples have.

Posted by: Jon White | July 31, 2007 at 17:50

If I thought you were serious Jon White I should recommend you be sectioned......

This argument is so funny...so if I buy a home with my sister and we take out a joint mortgage you think the State should declare us "married" - and if we have children you insist that Styate declares us married.........likewise father and daughter

[Philip]

Jon (1918), studies (including the IDS work) have shown marriage generally works better for children than co-habitation is that married couples are far less likely to split up, and perhaps that is because of the public acknowledgment of lifelong exclusive commitment that the marriage ceremony involves.

[Philip]

(my last post was posted before I checked it!)
Jon (1918), studies (including the IDS work) have shown that the reason marriage generally works better for children than co-habitation is that married couples are far less likely to split up. Perhaps that is because of the public acknowledgment of lifelong exclusive commitment that the marriage ceremony involves.

[Common Sense]

Mr Lilico is beyond redemption. His definition of 'exploitation' is broad, vague and allows the Toynbees and Harmans of this world to regulate almost every aspect of human relationships.

Where do we draw the line? lf someone lies to their partner perhaps the state should facilitate a legal remedy for that.

[Scotty]

Any tax experts around to answer my queries?
At the moment as I understand it, couples who live together rather than marry benefit more in the tax system?
So if we now change the law to give them the same protection as marriage will we then be correcting the unfair tax system as well?
Or are we just going to continue to shaft married couples and therefore undermine the institution of marriage in general?

[Senco]

Mention marriage and people go wild.
Mention education and the posts are thin and dull.

[EML]

Interesting posts here. The more the state meddles in personal relationships the bigger the problem becomes (i.e. the problem of a moral vacuum in our society). The next generation will be confused and marriage will no longer hold a special place in our hearts. People do still long to find their dream partner and marry, how much longer will that go on if the government complicates matters by promoting "cohabitation" as "equal" under the really, really dodgy banner of "fairness"? Unintended consequences will be rife, the only plus side will be more money for the solicitors and barristers of this world.

Patriot sums it up quite well:

Jon, you can be married without a religious ceremony - yes, it is a legal process - but then aren't you saying you want legal rights? I'm not sure how you can have that without entering into a legal agreement, which is what marriage is.

What is being proposed is that the government presumes, on your behalf, that you have already entered into that agreement once you cohabit, which is what, if I read your post correctly, you would choose to avoid.

Can you see that paradox? What you are seeking is the protection of a legal contract without a legal contract. If the government changes the law so that cohabitees have the same rights and responsibilities as married couples, then why not just get married in the first place? Where then does choice go?

Posted by: Patriot | July 31, 2007 at 18:17

[Martin]

If you put to one side religious or traditional views there is no reason why, if there is a clear opt out, that this change should not be made. No one, so far, has suggested a fundamental reason why we should not offer this protection to couples who, in many cases, believe that there is such a thing as common law marriage, or who never get round to marriage or indeed decide against it for legitimate reasons.

If your reason for not marrying is because you don't want the financial committment then you sign the opt out form and this proposal wouldn't cover you. Otherwise I think it would offer welcome protection to people.

The most significant arguments seem to be religious (irrelevant as it should have no role in determining policy) or that it damages marriage. Well, if marriage is this all important bedrock to society why do we keep looking at it as something so fragile. If it's so fundamental then it can cope with protection being granted to people who probably wouldn't have got married anyway.

[Sean Fear]

I have religious objections to this proposal, Martin, but they are not, as you say, relevant in legal terms.

My principal objection is to the idea of saddling people with obligations that they have never chosen for themselves. I don't believe it is the job of the State to tell people they must opt out of obligatins which they have never chosen.

To me (a Christian) it's as offensive as making a legal assumption that all people are Christians, that they are required to go to Church, but, in its kindness, the State will allow people to opt out if they really insist on it.

[William Norton]

Jon White: you can thank Lord Hardwicke for your problems, or perhaps Captain Campbell of Carrick who managed to upset Lord Hardwicke. You see, Captain Campbell got himself shot at the Battle of Fontenoy whereupon two ladies lodged claims to a widow's army pension on the basis that they were Mrs Campbell under the then law of Scotland, and both had fairly good grounds, although obviously one of them had priority over the other. Clearly Capt. Campbell applied the same degree of care and attention to his private life as his military career. This source of confusion prompted the Lord Chancellor, Hardwicke, to introduce what became the Marriages Act of 1753 which imposed a standardised process for recognising marriages - although, in the perverse way of British politics, it didn't actually apply to Scotland (which is how running away to Gretna Green started).

Hardwicke's Act fixed a standard age of consent to marriage of 21 for both parties in England (or with parental permission if younger) and it was not valid unless the banns were read beforehand or you had a license, a register was signed, and unless you were Jewish or a Quaker a ceremony had to be carried out in a church. The rules have changed over the years, but that's the starting point for where the law is now and it is the result of state intervention and not really religious devotion.

Prior to 1753, marriage was simply a matter of fact: two people freely consenting to marry who were of age (14 for men; 12 for women) who were not prohibited from marrying (they were related, or already married to someone else) living together as man and wife. If their agreement was blessed in a church it was termed a "regular" marriage, but "irregular marriage" was just as valid in law and probably more common. So-called commonlaw marriages don't exist anymore, but they would if someone abolished the legislation derived from the 1753 Act.

Under the pre-1753 law, it sounds as if Jon White would have been regarded as married.

None of which answers the question of what the law ought to be in 2007. Further thoughts follow later....

[William Norton]

Despite what people have said so far, marriage isn't really a contract, it's a status arising from a contract. The state has always interefered in matters of status and contract and there are two broad approaches:

(1) A Welfarist view that particular outcomes are entitled to certain privileges, irrespective of how they were reached. This is (correct me if I'm wrong) where Jon White is coming from: parents by virtue of having become parents should have rights as against each other and over children; co-habitees should have property rights against each other etc etc.

(2) A Transactional view that choices have consequences and you are only entitled to advantages if they arise out of mutual agreement. So: if you choose not to buy a lottery ticket, you can't claim a prize; if you choose not to insure your house you can't complain if it burns down; if you decide not to get married then you take your chance of coming worse off from a bad relationship etc etc.

The Welfarist view could be seen as a reversion to a pre-1753 view of marriage - and clearly social change in recent decades has produced a change in attitudes in this country - although I suspect that the Law Commission are confusing it with late 20th Century approaches towards state handouts and personal self-fulfilment.

A fair compromise would be to (a) permit a 'fuzzier' definition of 'marriage lite' or 'irregular marriage' to entitle the parties to certain legal remedies against each other, with perhaps room for flexibility such as allowing pre-non-nuptial agreements to be legally enforceable; but (b) having specific tax advantages confined to 'regular marriage' backed up by a marriage certificate because any fiscal system will require yes-or-no certainty; whilst (c) "kid's rights" are addressed unaltered through the currently disasterous welfare benefits system.

To the people who query where you would draw the line - in practice a jury would draw the line. Juries have been interpreting whether defendents had malice aforethought quite successfully for several centuries and the law of homicide only got messed up when academic lawyers (people like the Law Commission for example) shoved in an oar.

I wouldn't see this sort of compromise as undermining a religious/traditional approach to marriage. Marriage is a sacrament capable of conferring grace - but this does not affect what constitutes a marriage as a matter of civl law.

[TomTom]

as allowing pre-non-nuptial agreements to be legally enforceable;

That is a country where PRE-NUPTIAL agreements are NOT recognised by the Courts and where no Divorce statute has been passed since 1973.

How droll.

[TomTom]

in a church.

In The Church of England ONLY as until the introduction of RBs only the Church of England could combine the religious service and civil registration = something that places like Germany still cannot manage

[CCTV]

To me (a Christian) it's as offensive as making a legal assumption that all people are Christians,

That offends against the Doctrine of Electionism and Grace

However there is a case for all being automatically enrolled in military service with opt-out procedures and stringent rules.

To militarise the whole society could yield great benefits. The notion of "presumed consent" has so many applications - say in government. All those wanting an election would have to register - otherwise the government would simply continue until sufficient objections were registered

[Serf]

The current proposals would destroy the right of people to choose a more relaxed form of cohabiting, which in these days of eye popping house prices is a not immaterial issue.

The idea that non married people are somehow losing out is petty and ridiculous. If it feels unfair, get married.

[ToryJim]

Christian Mason wrote:

"Surely we should all be in agreement that marriage - whether religious or purely civil - is the best arrangement for a child to grow up in. Statistics repeatedly show this to be true as said relationships tend to survive longer when a contract is in place. Sad but it's true."

Sorry, but anyone with even a basic understanding of statistics can't claim that "statistics repeatedly show this to be true".

How do we identify the cause and effect?

Are we seriously claiming that one piece of paper 'causes' a stable relationship?

It could well be that those couples who intend to form a stable relationship are the ones who go and sign the piece of paper.

Of course we want more stable relationships, but we have to be careful in claiming that "more marriages" = "more stable relationships" unless we have evidence for this claim.

[TomTom]

Of course we want more stable relationships, but we have to be careful in claiming that "more marriages" = "more stable relationships" unless we have evidence for this claim.

Posted by: ToryJim | August 01, 2007 at 08:01

You are so bourgeois. In an asset-rich household the Courts can make any Order they choose without changes in the law - if children are involved. They could bankrupt the absent partner - and maybe they should penalise unmarried parents with innovative Court Maintenance Orders which are more expensive than those for divorcing married couples

However if the household is benefit-rich rather than asset-rich we have the prospect that living on benefit can create serial fatherhood without costs being carried by taxpayers.

Since many of those in these economic groups "living over the brush" are heavily influenced by example - celebrity culture and others - an example set by more affluent groups in society would be less destructive of lives among those who are easily influenced by example.

It is one of life's features that some people need structure imposed and others do not; when those who internalise structure set an example to those looking for outside example, things work.

It is a case of noblesse oblige - may not occur to many, but the way you talk to children determines their approach in how they learn manners, syntax and ability to articulate rather than suffer violent frustration.......there are many parents in our society who are more childlike than their children and chaotic in their thought processes and lifestyles

[Christian Mason]

Tory Jim:

One piece of paper can't "create" a stable partnership, but surely it stands to reason that couples work harder at maintaining their relationship having gone through the rigmarole of marriage. It's a lot easier to walk away from a relationship without that piece of paper.

I thought the findings submitted to the Social Justice Policy Group were extremely telling. It would be wrong to dismiss them out of hand.

I think the net effect of the Law Commission's cohabitiation proposals will simply mean many more relationships ending before the two year mark.

[ToryJim]

"surely it stands to reason that couples work harder at maintaining their relationship having gone through the rigmarole of marriage. It's a lot easier to walk away from a relationship without that piece of paper."

Posted by: Christian Mason | August 01, 2007 at 13:22"

"Surely it stands to reason" - come on, we really ought to be able to come up with a more convincing reason than that.

My question is - do we have any EVIDENCE that married couples "work harder as maintaining their relationship having gone through the rigmarole of marriage"?

It's quite telling that you use the word "rigmarole" - the dictionary I have to hand (Chambers) defines 'rigmarole' as:

rigmarole: noun

1 an unnecessarily or absurdly long, and often pointless or boring, complicated series of actions, instructions or procedures.

2 a long rambling or confused statement or speech.

ETYMOLOGY: 18c: from the Ragman Rolls, a series of documents in which the Scottish nobles promised allegiance to Edward I of England in 1291-2 and 1296.

Are you suggesting that we propose that an 'unnecessarily or absurdly long' and/or 'rambling or confused statement' is supposed to help ensure a stable family?

Why would it?

[Christian Mason]

Tory Jim:

You're being a little pedantic. I was using the word rigmarole in its sense of being a long and complicated procedure.

The Conservative Party is a fairly broad church, but I'm surprised by how many people here seem not to believe in marriage.

Are you seriously suggesting that the Law Commission's proposals should be welcomed by the Conservatives? It would be completely at odds with the party's recent line on supporting marriage - underlined in IDS' report.

[ToryJim]

"I'm surprised by how many people here seem not to believe in marriage."

Posted by: Christian Mason | August 01, 2007 at 13:54

Some of us aren't married :-)

Seriously, do we really think that a piece of paper ensures a stable relationship?

As far as I can tell, I'm in a stable relationship - eight years and counting - and I don't have the piece of paper in question.

Are you telling me the Conservative Party doesn't officially approve of my situation?

[ToryJim]

I was using the word rigmarole in its sense of being a long and complicated procedure.

Posted by: Christian Mason | August 01, 2007 at 13:54

Could you please explain in what sense is getting married a "long and complicated procedure"?

My sister got married, the marrage lasted 18 months, she's recently divorced.

I've been living with my partner for eight years (and counting). We've not married.

Do you really think marriage is more stable than cohabitation? Any evidence to back this up?

[Christian Mason]

You can completely ignore the findings if you wish, but please have a look at the report that formed the basis of IDS' work. Bristol Community Family Trust - www.bcft.co.uk/Family%20breakdown%20in%20the%20UK.pdf.

[Christian Mason]

Incidentally, I am unmarried and have been in a stable relationship for seven years. I am not moralising.

I still believe marriage is the best platform for having children. What I don't agree with is bringing in new laws that act as yet a further disincentive to getting married. I would also object to the idea that my girlfriend or I could make a legal financial claim on one another should we split up.

[Patriot]

As I read it, the party absolutely supports people's right to choose whether they cohabit or marry, and accept the legal distinctions between the two states. Cohabiting should not automatically bestow claims by one partner on the assets of the other. (I shudder at some of the legal judgements that have been made in the division of assets by married couples after only 2 or 3 years - it continues to appear to be a gold-diggers charter in the absence of suitable pre-nupts.)

IMO it must continue to defend the status quo of that position - legal rights and obligations should flow only from marriage or another suitable legal contract freely entered into by the individuals involved.

The government must never be allowed to assume and impose a legally binding status on cohabitees beyond those of parental support by default, regardless of any talk of "opt outs".

The only exception I would consider to this would be to extend the default concept of parental support to include the partner who is caring for a child in the years when to both work and provide nurture is impossible or undesireable.

Having said that the PSA appears to be struggling with the burden of its current responsibilities, so any further changes to the law would probably be irrelevent right now.

[Ted]

On arguments about which is better : Statistics show that children brought up in marriage are overall better off emotionaly and financially. That doesn't mean all marriages are successful or that all co-habiting couples are failures. Smokers are more likely to get lung cancer but non-smokers may also suffer from lung cancer - the latter doesn't disprove the statistical correalation between smoking and health. Non smoking remains the better option.

This is a very un-conservative proposal. The state provides a choice of model contract for committment with associated rights and duties available to any pair of adults who choose. If they do not choose then the state imposes a set of duties as regards the care of children but is otherwise disinterested, it should remain that way.

Mr White complains because his choices did not provide him with the rights he would have got as regards access to his child. Firstly if he wanted those rights he should have made the adult decision; secondly the care of children and the rights and duties of parents should be separated from those of the adults. I agree that a father having duty of care and maintenance should also have a right of access and custody. That's a simple law change that doesn't impose on co-habiting couples a host of legislative rights and complexity of separation.

[TOmTom]

As far as I can tell, I'm in a stable relationship - eight years and counting - and I don't have the piece of paper in question.

Are you telling me the Conservative Party doesn't officially approve of my situation?

Posted by: ToryJim | August 01, 2007 at 14:07

Actually it is The Law Commission that is moralising - it is saying that you will have a piece of paper automatically unless you both opt out by registering - in short The State will decree your relationship with your concubine to be "a quasi-marital state" with your assets at risk and legal claims against you.

It is the lawyers who want to boost their incomes from the lucrative divorce business by adding a nhew product-line.

[ToMTom]

Looking at the system in some parts of Canada where this quasi-marriage is official after 12 months cohabitation it could make it very difficult to change partners even if you have no children.....it certainly makes life less flexible and suggests rotating room mates every 11 months or so or having short-term rental contracts for sub-lets

[ToMTom]

Canada Research

Brazil

Brazil 2

This paper cncludes fertility is higher for women cohabiting than for married women. Could that be that cohabiting women are a) worse educated b) tried to bind their partners through pregnancy ?

[informed outsider]

Jon W if ylu want to have these rights/ obbligiaons you can get married why not?

It would be outrou to give you the oblions of marriage without you choosiong them this is what this law attempt to do.

I hope the tories fight tooth and nail agains these moves which are an attmpe to abolish marriage and reduce peronsal liberty too typical of the leftist extremists of thi s government. Nick Herbert's statemetn is very encouraging- though Camous behavour on the attmep to end religou freedom in good, servc3s and doption is worrying on this tack.

if pepole are ingon of thier lack of righs simply inform them - the govt could mount an advertising campaign

[antoinette]

"If people are ignorant of their rights simply inform them - the govt could mount an advertising campaign" by informed outsider

The debate here ignores the fact that most women would not go to a lawyer to check their rights before agreeing to move in with a partner (if they can afford to pay for legal advice, and would naturally think of seeking legal advice in circumstances where myth abounds in respect of common law marriage). I agree with Jon White. If you dont want legal rights and obligations then dont move in together. An advertising campaign will be effective only as long as it runs. The proposals from the Law Commission mean that the financial incentive not to marry is reduced - which supports marriage - rather than the current position of a very solid financial incentive not to marry.

[CCTV]

I agree with Jon White. If you dont want legal rights and obligations then dont move in together.

Which is why I have always resisted a woman's attempts to start leaving clothing in my wardrobe or staying over too frequently...best to avoid this kind of creeping commitment being foisted on a man

[informed outsider]

antionette are you really arguing that as cohabition has become easier ect over the last few decadesx -and more recongised by instions marriage has not got harder.

The notion by elmint the advantages and distiniviness of marriage you strengthen ra the weaken marriage

And even were it true, n the worst way of strengthening marriage is by the government punishing cohabittees - whihc is what this proposla would do - and reduing freedom.

Fine people for cohbaitng if you want to end the freedom for people to live together without commitment (something I oppose) - don't undertmine marriage as well

[deb]

i find the thought of a pre-nupt vile and the most UNloving thing anyone could ever put their "beloved" (that's a laugh) through. i believe that to begin a marriage with a boiler plate contract even before there has been a chance to promise your life and your love before God is just inviting its demise. A pre-nupt is about someone who is willing to lose the most meaningful relationship of his life...someone who is willing to risk losing the love and respect of someone who loves him with all her heart regardless of his financial status. It is not love when someone purposely demands that his betrothed sign an agreement that in all actuality says i don't care what happens to you if we break up. i don't care if you feel you are a tenant in my house the rest of your life just because i refuse to include your name on the deed. i don't care if my demand of a pre-nupt makes you feel UNloved and UNwanted. i don't care if my caring more about my possessions than you hurts your feelings in any way. A pre-nupt, in my opinion, is just asking for trouble. It makes way for pain that doesn't have to be. It's ugly, and it doesn't get any prettier as time goes on.