Monday, 11 June 2007

Not every common-law wife is a nascent victim

I did not even have to open my paper this morning for the heckles to start to rise. The promise of daft legislation was splashed across the front page.

The Times reports that unmarried couples are to get equal rights on separation, “able to make claims against their partners to demand lump-sum payments, a share of property, regular maintenance or a share of the partner’s pension when they separate. They will also be able to claim against their partners for loss of earnings if they gave up a career to look after children.”

Children present a special case, of course. Human children are incapable of looking after themselves for an unusually long period of time – under another promised law, until they are 18 years old. It takes two to tango, as they say, and it is perfectly reasonable that both parents take a financial responsibility for their offspring – even if they later split up.

This is the case already, though the law does not always compensate those (usually mothers) who have put their careers on hold while caring for children. The new law would seek to do that and much more. The Times suggests that an assumption will be made that cohabitation is a partnership, where everything is held in common. No time restriction will apply, as is the case in other countries, where the couple must have lived together for a minimum length of time to have a claim. Neither will it be necessary for a party who was not working to prove that the other party consented to their not contributing. The aim is to provide protection without necessarily conveying rights, and the cohabitee must prove that they will suffer financially, so short relationships are unlikely to yield a return.

This is a typical top-down solution to a perceived problem, establishing a universal rule for what should be multifarious arrangements, tailored by individuals for their own needs. It will create bureaucratic and judicial burdens where private contracts should obtain. Typically of the worst sort of self- (or opponent-) styled “liberal” opinion, it views individuals as victims.

The problem is not that there is no rule to protect cohabiting couples. The problem is that cohabiting couples do not make arrangements to protect themselves. This is partly a cultural issue: love makes us act irrationally; it is considered unromantic to respond to your partner’s omnipresent toothbrush and dedicated sock-draw by producing a contract laying out who will own what in the event of a split. When couples start to buy things together, the last thing they want to do is apply a colour-coded label so that they know which CDs and books are communally owned when it all goes sour.

Yet it is also the case that some couples cohabit without ever intending to or wishing to share their property. I have known plenty of friends who have lived with boyfriends and girlfriends with whom they have never intended to share their whole lives – or their property. Sometimes, relationships are wittingly temporary; other times, there is a deliberate desire to protect one’s property from falling into the hands of another in the event of a split.

In fact, there is already a law that protects the interests of cohabiting couples: it is called The Marriage Act. It creates a legal union between the cohabiting couples that (if memory serves) includes (at least in the version of the contract to which I agreed) the clause “with all my worldly goods I thee endow.” (Which, sadly for Mrs. Polemic, included neither a family estate in Herefordshire nor a yacht).

Marriage is not everybody’s cup of tea of course, but I suspect there are two or three underlying reasons why this is the case. One is its association with a religious ceremony: I have argued before that the French Revolutionaries, having abolished most church institutions, would have done the world a huge favour if they had changed the name when they created a new, civil alternative to marriage. By keeping the nomenclature of the church, they created a headache for future generations.

The second is a “fear of commitment” (which may, of course, not be fear at all, but a rational decision). Many people do not want to conjoin with their partner ‘til death do them part. They want to wing it. That’s fine, but if that is the case, should they be compelled to accept the legal duties of married couples? Surely, if they choose not to commit emotionally, they should be free not to commit materially as well.

Finally, there is the cost. Weddings are not cheap (which is why, by the actual date of the wedding, I’d been obliged to sell the family estate in Herefordshire and the yacht!) and plenty of people are simply not prepared to take on the expense.

The solution to these issues is clear: we need to separate the expensive, emotional and perhaps religious celebration of the union of a man and a woman (or any combination of the above) from the simple, legal and civil protection offered to cohabiting couples that wish to establish the legal basis of their partnership and provide for one another’s security. The means of doing this would mesh perfectly with arrangements to end one of the last remaining bastions of discrimination in British law.

At present, homosexual couples may not marry (for which, blame the Church for a crime of commission and the revolutionaries for a crime of omission). Conversely, heterosexual couples may not enter into civil partnerships. So neither homosexual nor heterosexual couples are able to (forgive me) divorce the legal from the ceremonial.

Why not reform the system entirely. Let civil partnerships be legal arrangements, available to all, whereby (usually cohabiting) couples can make a legal settlement setting out the division of property and the rights and obligations of each partner. The could be quick, easy, cheap and tailored to the needs of the couple concerned (do they wish to share only the house in which they live, or their entire property portfolio?). It would require no ceremony. Indeed, just for (libertarian) fun, this could be conducted by a private notary, rather than allowing the State a monopoly.

Meanwhile, marriage should become solely a celebration of the love that two (or more!) people hold for one another, a declaration of their desire to forsake all others and live together forever, which need have nothing to do with the State, but may be conducted by priests, professionals, officiating friends or the spouses themselves, depending on their preferences.
The two might be combined, of course – many people would kill both birds with one stone. But at least we would be clear who intended to share their property and who did not. And at last we would know exactly what people meant when they said somebody was their spouse, their partner, or was merely living with them.

1 comment:

Tristan said...

Of course, I'd go a bit further and get rid of legal marriage/partnership and simply have contracts drawn up between people (I'm sure a standard one would develop). Pre-nuptuals would become part of that contract, you could set a time limit if you wanted. You could open it up to having multiple partners if you wish. It lets people decide how they wish to live their lives.

Religion can be involved or not. You can have a public ceremony or a private signing with just a witness. Whatever takes your fancy.
It would also encourage people to think about what they're getting into (which we're all now encouraged to do).

I know I'd have still got 'married' if it was a private contract, and the terms would be what I've already promised explicitly and implicitly.