Heterosexual cohabitants need to realise one thing: marriage works
AIM family services last week called for “realistic legal protection” for cohabiting couples. They want registration of non-marital relationships and recognition of cohabitation contracts. They want inheritance rights for cohabitants and they say courts should have the power to make property adjustment orders after cohabitation arrangements break down.
“Cohabitation,” says AIM, “is often looked upon as a loose arrangement between two people that can be terminated at the whim of either of them. It is the view of some people that parties voluntarily take the risk, no matter how many years they live together, of having no right to financial support if they separate and no right to the estate if their partner dies. That is not a compassionate approach.”
AIM cites the 2002 census figure of 77,600 cohabiting couples and claims this is “only the tip of the iceberg”.
To meet their needs, AIM wants to change the constitution’s provisions on the family. Article 41.3 pledges the state “to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack.” This would be replaced by the UN definition of family: “any combination of two or more persons who are bound together by ties of mutual consent, birth and/or adoption or placement and who, together, assume responsibility for, inter alia, the care and maintenance of group members, the addition of new members through procreation or adoption, the socialisation of children and the social control of members.”
This broad definition - free of troublesome words like ‘marriage,’ ‘father,’ ‘mother,’ ‘husband’ or ‘wife’ - would certainly put cohabiting couples on the same footing as wedded ones. Whether such a move would add to the sum of human happiness is another question.
AIM’s proposals are far more radical than those drawn up by the Law Reform Commission (LRC) in its consultation paper on the rights of cohabitants, published earlier this year.
The LRC accepted the constitution’s preference for the family based on marriage, and did not recommend formal registration of civil unions. Instead, the consultation paper argued for a ‘presumptive scheme’ under which couples cohabiting for three years, or just two years if they had children, would enjoy certain rights in the event of break-up, bereavement, etc. Surprisingly, neither AIM nor the LRC appears to have given much consideration to whether marriage is important to society. Or to whether rights for cohabitants would impact negatively on marriage rates. Maybe it’s because there’s been so little research in this country to compare the impact of marriage and other family forms on people’s well-being. Up to a few years ago, many experts at home and abroad were simply dismissive of marriage.
When, in 1994, the BBC asked childcare expert Penelope Leach for her views on the prospects of children born outside marriage, her reply was interesting: “You said born outside marriage... what’s that got to do with anything? There are no statistics whatsoever that suggest marriage - that piece of paper - makes any difference at all. What matters is relationships.” I wonder if Leach would say the same today. There is now a wide array of studies and statistics on cohabitation and marriage. The findings are dramatic. Cohabitation, it turns out, is far from being the marriage-like state that some people would have us believe it is.
In her book, Marriage-Lite, Dr Patricia Morgan looked at the available research and concluded that cohabitation relationships were much more likely to fracture than marriages entered at the same time, regardless of age or income.
COHABITANTS with children were more likely to fragment than childless ones. Couples who had children and then marry were more likely to divorce than couples who had children within marriage. And couples who had children without getting married at all were very unlikely to stay together while those children grew up. Her analysis also showed that cohabitants behaved more like single people in their relationships and were less likely to be faithful to their partners. Cohabitation wasn’t liberating for women either. “Living in this arrangement offers a lot of freedom to one partner to exploit the other,” commented one woman. Women and children were at greater risk of abuse than they would be in married situations.
Poverty is also a factor. The Washington-based Centre for Law and Social Policy (CLASP) comments that “even among mothers with high poverty rates and low educational attainments, marriage can have positive economic effects”. It’s not just that people with better prospects are more likely to marry. The experts talk of the ‘marital advantage.’ “It appears that stable marriage provides significant protection against poverty,” according to CLASP’s August 2004 policy brief. “For example, marriage changes the behaviour of some men: husbands with children earn higher wages and work more hours than non-husbands with similar characteristics.”
Marriage works. And the question which AIM and the LRC must wrestle with is this: if cohabitants are given the taxation and other benefits currently reserved for marriage, will there be less of an incentive for people to tie the knot?
It’s a question of balance. We all want to cushion people from the unpleasant consequences of their choices as much as possible. But there is a limit to what the state can do without hurting society.
Once the state gets involved with registering cohabitations, things get messy. For example, people may register as cohabitants for the purpose of enjoying taxation and inheritance rights at the state’s expense. Can this be easily prevented? Marriage, at least, involves a level of formality. It is difficult to enter and exit quickly. Not so with cohabitation. And, interestingly, the AIM document is silent on the waiting period necessary to deregister cohabitations.
We have to take responsibility for our own lives. For example, AIM correctly recommends that parties entering a long relationship should make a will, and that couples buying property together should set out the precise ownership arrangements beforehand.
If people want to bind each other into mutual legal obligations, or enjoy certain rights at the expense of the state, marriage exists as a mechanism for them to do so. If they decide not to get married, we must presume that they do not want the state involved. In a world where marriage is so necessary to people’s happiness, and still so fragile, that would seem to be the ‘compassionate approach.’
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