All of this happens because the couple never married. ‘Common law marriage’ does not exist and never has. Yes, the children are protected by law. No, the partner left with nothing is not. It’s an injustice that seems easy enough to correct with a change in the law. Cohabiting couples get the same or similar rights to married couples to prevent this from happening.
But should they?
Leave aside that this will end up as a lawyer’s charter. Realistically, any new law would need the clarity of only applying to a couple having their own biological children. If not, there will be a sea of legal disputes about uncertain start dates and whether couples were ever couples in the first place that will swamp our overloaded court system. For most couples, a change in the law is impractical and unworkable.
Leave aside also that imposing such rights is fundamentally illiberal. Couples who live together will suddenly find themselves lumped with heavy obligations and responsibilities that may be highly inappropriate for their style of relationship. In any case, any couple has the opportunity to formalise their relationship under the law for £85. It’s called the marriage certificate. And for those who argue this is just a piece of paper, well, it’s possibly the best value legal document to be found anywhere. It’s not the main reason people marry, of course. Nevertheless the legal aspect of marriage provides all of the protections necessary to ensure fairness if couples split.
But there’s a far bigger issue at stake here. Such change would add another nail in the coffin of commitment. The real price of a law change would be paid by a further expansion of the generation of children not brought up by both natural parents. Note that I’m not saying it will be the ‘death of marriage’ or any other hyperbolic nonsense. It will undermine commitment – and men’s commitment in particular. Here’s why.
The vast epidemic of family breakdown that we face today is the result of the trend away from marriage. In the 60s and 70s, family breakdown was all about divorce. But since 1980, divorce rates have plateaued and fallen by 20%. Yet family breakdown since 1980 has doubled from one million lone parent families to two million. Altogether 45% of today’s teenagers are not living with both natural parents. The cost of supporting so many parents struggling to bring up children on their own is £46 billion per year, more than the defence budget.
The cause of this doubling in family breakdown is clear enough. The shift from marriage to cohabitation has brought a change in both external and internal commitment, what researchers call ‘constraints‘ and ‘dedication‘.
- The ease of moving in together means that many lower quality relationships continue on into childbirth simply because they get stuck together. It’s easy to move in. It’s a lot harder to move out. The external ‘constraint‘ of living together brings its own inertia or premature entanglement. For many couples, the arrival of a baby is the trigger to end the relationship. The result is that half of all family breakdown now takes place in the early years of parenthood. Three quarters of that involves couples who never married.
- The move away from marriage also means that couples don’t have to be so deliberate about their plan for the future. This is what ‘dedication‘ is all about, the internal decision to be a couple with a permanent future. Some unmarried couples may be just as committed as if they were married. Most are not.
Where I believe a change in the law will have most effect is in undermining the importance of ‘dedication‘. The trend away from marriage has proven destructive enough on its own without adding further encouragement. In reality, this is a trend away from ‘dedication‘ , which is a deliberate intentional clear commitment to the future.
And here’s the key point. Men’s commitment is much more about the specific decision than women’s commitment. I can cite the research evidence for this. But at heart everybody knows it. Men in particular really only commit or buy into something when they make a decision about it. This is why marriage is so important to a man.
- I will make it work because I’ve made a decision to get stuck in. Moreover, I’ve made a promise to make it work in public, in front of all my family and friends. Their presence helps me affirm that the decision I’ve made for myself is a good one and also encourages me to stick at it through ‘better and worse’.
This is what a new law will undermine. It will undermine men’s commitment by removing the need to make a decision about the future. It will also further undermine any subtle encouragement from a partner who wants the clarity and security and lack of ambiguity of a lifetime promise. There’s no need for men to make a clear commitment because the law does it for them. What the law doesn’t do is help a man make the all-important decision. Only he can do that.
Who will pay the price? The ever growing number of cohabitees will still split up in larger numbers because of their failure – for whatever reason – to establish a clear commitment before having children. They may take a fairer share of the family’s assets. But the real price will be paid by the expanding number of children denied the input of both natural parents. Over 4 million children, 35% of all children, spent this Christmas with only one parent. Less need for parents to commit will mean that number will inevitably rise.
Next Thursday 8th January, the Sunday Times and Marriage Foundation are hosting a panel debate, chaired by the BBC’s John Humphrys, on whether cohabiting couples should have legal rights that prevent injustice to partners.
My view is that righting this wrong would create a far greater injustice to children.