Is there a difference between marriage and cohabitation?

Comment Piece

12 Jan 2015

Graeme Fraser, member of Resolution's Cohabitation Committee and partner at Hunters Solicitors, reviews last week's Sunday Times/Marriage Foundation debate on cohabitation

On 8th January 2015, The Marriage Foundation and Sunday Times hosted a provocative and fascinating debate on the difference between marriage and cohabitation. A large audience evenly split (after a quick vote) on legal rights for cohabiting couples, assembled including lawyers, teachers, and family based charities, for the discussion chaired by John Humphrys. The panel consisted of Sir Paul Coleridge, Chairman of The Marriage Foundation, Susan Jacklin QC, Chair of the FLBA, Samantha Singer, Barrister at QEB, Dr. Samantha Callan of the Centre for Social Justice (CSJ), and journalist Kate Spicer.

Panel discussion

Samantha Singer advanced the idea of equality of committed relationships, suggesting that in the future, people would ask why same sex and unmarried cohabitees were not treated as equals to heterosexual married couples.

Susan Jacklin QC acknowledged that marriage was distinct from cohabitation as a statement of commitment with legal implications, but because of the amount of injustice, the law should be changed to provide a safety net for unmarried couples. She also cited the Law Commission's findings that the majority of the public agreed that there should be legal rights.

Kate Spicer also acknowledged that unmarried couples are different, citing modern women as "conscientious objectors" to marriage. Her experience of her own mother's divorce had convinced her that marriage did not guarantee emotional happiness, and that people who don't marry are often those living in poverty.

Samantha Callan viewed marriage and cohabitation as being quite distinct, with the acceptance of informal relationships where children are concerned being a real issue where there is a breakdown.

Sir Paul Coleridge distinguished marriage as entailing financial obligations if the relationship falls apart. He questioned why private individuals who chose to live together should have financial obligations unless there had been an agreement in advance. While acknowledging cases of injustice when an unmarried woman had no claim on the home, despite having looked after the children, rather than introducing legislation, people should be better aware of their rights, so that there should be "clear blue water" between the rights of married and unmarried women, a social distinction that should not be tampered with.

In response, Samantha Singer said that an individual should have the choice whether to marry, and that most people who cohabit believe they have legal rights. Although cohabitants have the option to draw up an agreement in advance, there is an inequality of bargaining power similar to the weaker financial party who is asked to sign a pre-marital agreement.

Samantha Callan viewed it as problematic for the law to chase social mores, it being illiberal to provide rights to those who have been living together for a defined period of time. The CSJ was concerned by the problems caused when children grow up without their father, and that the number of single person households was unmanageable, symptomatic of a broken society.

Susan Jacklin QC commented that a failure to provide any rights to cohabitants would not cure the problem. The number of couples cohabiting continues to rise sharply.

Debate opened up to the floor

I pointed out that the division of labour, namely the sharing of the tasks of earning money, running the home, and caring for the children, results in relationship generated disadvantage, which had resulted in the principle of non-discrimination introduced by the House of Lords in White v White in 2000, which had transformed the family court's approach to family remedies on divorce. As relationship generated disadvantage was experienced in all shared living arrangements, regardless of marital status or gender, why had nothing been done about cohabitants' rights in the intervening 15 years?

Samantha Callan's response was that research into the problems on relationship breakdown following the quadrupling of cohabitee numbers in the intervening years meant that the social fabric of society was being harmed by unmarried relationships. Sir Paul Coleridge suggested that men have the option of deciding their futures before entering into intimate relationships. If there is no intention to commit, then don't have children. Research demonstrated that children fare better from two parent homes, and it would be a disservice to the next generation to saddle them with obligations if they chose not to marry.

A retired head teacher based in Greater London, suggested that this approach was very "middle class". Her experience of working class families where a mother has had children with other partners, was that as those children grew older, they ended up in gangs because there was no stability at home. The head teacher's daughter qualified this by explaining that the most important characteristic in the relationship is stability. Marriage is no guarantee of stability, as divorce is available after a year.

Samantha Singer felt personally offended by the context behind the statistics produced by the CSJ because they suggest that children of unmarried cohabitants were in some way inferior. To demonstrate this, she identified the following family succession, all out of wedlock:

1917 – Boy born to unmarried mother, Margaret

1952 – Margaret’s granddaughter born

1982 – Margaret's great granddaughter born to an unmarried mother

2013 – Margaret's great great grandson born to an unmarried mother

She said that the family concerned was stable and successful in their long term relationships, and that in fact, Samantha herself was Margaret's great granddaughter and the mother of Margaret's great great grandson.

Harry Benson of The Marriage Foundation responded that their research showed that 7 out of 10 married couples stay together, but only 2 out of 10 unmarried couples stay together. Therefore, the decision making process about whether to marry was a very real and important one.

Michael Gouriet, Partner, Withers and fellow member of Resolution's Cohabitation Committee pointed out that for 20 years, the Law Commission had said that the law was unfair, uncertain and illogical. He had understood that Sir Paul Coleridge had supported Lord Justice Wall's proposal for reform, and had said during a talk in 2013 that there must be a middle ground. He stressed Resolution's view that there ought to be some safety net position about it.

A volunteer from Dad's House, a single fathers' charity, reminded the audience that there were thousands of wonderful fathers and that charities are supporting those families.

Another teacher, a special educational needs co-ordinator said that the distinction between marriage and cohabitation had caused a huge division in society leading to dysfunctional families. The effect of single parent families could involve having children to obtain greater welfare benefits, including housing which would not otherwise be available. An innovative suggestion was made that registering a child's birth could include a form of civil partnership in order to recognise responsibility.

Visions of the future

Sir Paul Coleridge said that he wanted there to be a recognition that we live in a society with a serious problem with family breakdown. The public needed to be educated so as to preserve and help them with their relationships, without obligations being imposed on them. The Government could send messages through tax incentives and other initiatives for couples to stay in marriage.

Samantha Callan said that this was a social problem which can be tackled. In the USA, the "healthy" Oklahoma Marriage Initiative was a method of preparing couples for marriage. Children centres could be set up to provide help for families in difficulties.

Kate Spicer thought there should be less emphasis on the anachronistic institution of marriage. Parents should focus instead on making a commitment towards their children, rather than to each other.

Susan Jacklin QC did not disagree with raising awareness, limiting damage caused to children by relationship breakdown, but it did not change her view. Remedies are still required for relationship generated disadvantage.

Samantha Singer emphasised the importance of introducing legislation to provide stability for all families, and that her views about legal rights for cohabitees were in line with Resolution's policy. At the same time, however, financial provision on divorce needs to be brought back down to earth.

Final Analysis

Although at first sight, the views of the panel and audience appeared to be polarised, there was much common ground. It was accepted by all that the current law creates injustice, that there needs to be stability in the relationship, and greater public awareness and education could assist in preserving families, and reducing damage caused to children. However, there is greater difficulty reconciling Sir Paul Coleridge's vision of "clear blue water" between marriage and cohabitation, and accepting the provenance of the CSJ's research, which pinpoints unmarried relationships as being the reason behind relationship breakdown.

Resolution's policy of pressing for legislation to provide genuine fairness for cohabiting couples more accurately reflects family law practitioners' experiences of injustice and public support for legal protection. This policy is in line with most countries who have introduced cohabitation legislation.

From a personal perspective, the primary objective must surely be the introduction of safety net legislation to remedy injustice and prevent discrimination against unmarried mothers who have brought up children, by awarding them automatic property rights, rather than leaving them exposed to the possibility of no legal rights at all on relationship breakdown.