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Why the legal rights of Cohabitation should not be

Category Articles
Date January 25, 2002


Marriage is based on lifelong commitment and discharges these mutually beneficial tasks more effectively than cohabitation

A bill has been introduced in parliament by Lord Lester of Herne Hill calling for the legal protection of cohabitation to be extended. It comes at a time when many opinions on the causes of youth crime focus on discord in the home, parental break-up and lack of child supervision. At such a period this Bill is being proposed which would diminish the status of marriage, and through the encouragement of cohabitation, heighten the incidence of pregnancies outside of marriage.

For centuries the law has given special legal recognition to those living arrangements considered to be in the common good. David Green, the Director of ‘Civitas: The Institute for the Study of Civil Society’ has pointed out, “Since the 17th century it has been recognised that many voluntary arrangements should be permitted but not given special recognition under law and, typically, the acceptance of a private sphere outside the control of lawmakers has been regarded by liberals as a social advance. As J.S.Mill argued. there is an important place for ‘experiments in living’ in which individuals live as they please and bear the consequences of their own actions so that we can all learn from their successes and failures. When couples provide for each other and their children they prevent the burden from falling on others. No less important, parents are the main transmitters of the shared values of a society from one generation to the next.

“Marriage is based on lifelong commitment and discharges these mutually beneficial tasks more effectively than cohabitation which, by its nature, tends to be temporary and associated with the greater neglect of children. It is not, therefore, in the interests of the wider society to encourage cohabitation by giving it legal protection. Mill remarked in ‘On Liberty’: ‘it would be absurd to pretend that people ought to live as if…experience had as yet done nothing toward showing that one mode of existence, or of conduct, is preferable to another.'” (letter to the Times, January 16, 2002).

It may be that two homosexuals can in a certain way bring up the twins they have commissioned from three separate mothers – people have grown up in all sorts of unusual circumstances and survived. It may be that the 62-year-old Frenchwoman who carried a child from her brother’s sperm will love her child, and the child love her. It may be that the reconstituted family, composed of former spouses and step relations, is a reality for many today; kindness can spring from the most unexpected sources. But the template of a steady, continuous and even conservative family life, binding our attachments and our memories, is ever there within us. It has been planted there by God himself, who is Father, Son and Holy Spirit, and made all men in his image. That is the message we Christians are going to teach as clearly and persuasively as we can, and the legalisation of other kinds of relationships will not be encouraged by ourselves. We are glad to hear of the alarms of others.

Professor Eric Ives of Warwick has expressed this concern about the proposed Bill: “to give cohabitees rights in law would destroy the very freedom which makes cohabitation attractive [to them]. It would also create enormous problems of definition and entitlement and a bonanza for lawyers. For example, would cohabitees qualify if one or both were also still married?”

The state should be involved in marriage primarily to safeguard it against some of the encroachments and pressures that are brought to bear upon this institution. The couple and their potential family should be protected by maintaining certain conditions, for example, with blood tests, laws against bigamy, a minimum age of a bride and groom, and so forth. The law has to recognise their status financially, in such matters as the taxes they pay, and the rights of a spouse after the death of a spouse who has left no will. There must also be laws about divorce and marriage settlements.

Yet, one of the nastiest problems in Britain today, entirely politician-made, is the increase in quantity, cost and bitterness of divorce litigation. This is the direct result of what is erroneously called liberalisation of the law – that is, making divorce easier and quicker. It may make the fact of divorce easier for some, even many, couples, but for a growing number it is turning the attempt to separate and, as it were, divide the spoils, into a legal nightmare which, far from being quick, stretches over months and even years. The amount of human misery involved is staggering. Legislation to make easier divorce was supposed to reduce the sum total of human unhappiness. It is now adding to it, steadily. One fears any attempt to legalise cohabitees would have the same effect.

The state issues marriage licences as a safeguard for a couple beginning life in a complex society. These licenses are the state’s legal recognition that two people have given themselves to each other in marriage. By issuing the license the state pledges to do all it can to promote conditions which will be for its good. At the same time, the state informs the couple that it will hereafter hold the couple responsible for living up to the vows which they have voluntarily taken. It would be a worrying intrusion of Caesar if he began to make pronouncements on other friendships and living relationships.

The family is not something that can be, or should be, dominated by the state: its privacy must be respected. But neither is it something that can be ignored by a government, unless we are to return to a condition of no taxation, no social welfare, no state pensions, no child benefit, no state education and no laws against child cruelty. Parliament should devote its energies to unequivocal support for marriage.


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