Written evidence from Dr James Lloyd [HAB0239]

 

This response focuses solely on the question of whether or not cohabiting couples should be given the same legal rights as married couples. The very fact that this subject is even being contemplated confuses me. I had always understood that the rights of a married couple are conferred by their marriage and by no other process. Therefore, obviously, couples who were not married did not enjoy those rights. That some cohabiting couples believed they did and discovered otherwise too late suggests nothing more earth-shattering than that some people are ignorant of the law. The first argument in favour of changing the law presumes that some people’s ignorance of it (and it is only some people’s) is some sort of public crisis and that changing the law to fit those people’s misperception is the solution. Yet the law is designed not to suit what people are already doing but to change what they are doing and the solution to ignorance is education. To change the law in order to make it fit some people’s ignorance, rather than to educate people so that they understand the law, seems like a submission to ignorance, the legal equivalent of lowering the standard in an A-level exam so that more children can pass. The myth that “marriage is just a piece of paper” needs to be exploded, not made true.

              The second argument is that the current law is unfair, privileging married couples over unmarried ones. If marriage were a privilege that some people enjoyed automatically but from which others were permanently debarred, this argument would cohere but in reality marriage is a choice that any couple is free to make. Married couples enjoy the advantages of their status because they have chosen to enter into it. Cohabiting couples are not forced only to cohabit or barred from marrying. They have chosen not to marry, or not to marry yet, which means that they have chosen not to enjoy the advantages of the married status. Now that marriage is available even to homosexual couples and that civil partnerships, which afford identical advantages, are available to all couples regardless of sex, to attain those advantages has never been easier and correspondingly the claim that cohabiting couples are discriminated against has never been more ludicrous.

              Since marrying is a choice, then not marrying is also a choice. It is patronizing to assume that all cohabiting couples are simply unaware of the relative disadvantages of their status and need to be saved from the consequences of their own ignorance. Some may have consciously chosen to remain unmarried because they want the law to continue to treat them as independent people. For them any kind of conflated legal status would carry the baggage of marriage of which they had chosen to remain free. Such people would, in effect, have been forcibly married by stealth.

              There is a distinction between cohabitation and marriage that creates two flaws in the Law Commission’s proposal, one theoretical and the other practical. The theoretical flaw is that marriage is distinguished from cohabitation by its formality. Two people have consciously decided to commit themselves to each other and to no one else for the rest of their lives and have publicly announced this intention in front of witnesses and officials and have documentation to prove it. Cohabitation is a much more casual arrangement and is entered into (and departed from) informally, without any obligation to make mutual commitment or to document the relationship’s existence. This difference means that cohabitation is objectively not the same form of relationship as marriage. They are legally unequal because they are literally unequal: They are not the same. It is therefore mendacious for the law to pretend that they are the same.

              The practical flaw is how a cohabiting relationship would be defined in law and how its existence would be proven. Would any couple who had just moved in together qualify, or only those who had cohabited for a significant period of time and, if so, what period would be suitable and how would it be proven? What times should be taken into account? What about relationships that begin as platonic but later become romantic? At what point would such a couple start counting towards their qualification? For example, would dorm-mates at university, who only years later began a relationship and started to cohabit again, be allowed to count their time sharing a dorm as part of their period to qualify? Alternatively, if periods of living apart should re-set the counter at zero, would this not discriminate against couples who experienced temporary ruptures in their relationship but who subsequently resumed living together? There is no end to the complications involved in a scheme to calculate a qualifying period of cohabitation – and that is before we have considered how any of this would be proven in court – but the alternative is to treat any period of cohabitation, even as brief as one day, as qualifying.

              How would such couples notify the state of the existence of their relationship? How, indeed, is cohabitation to be defined or distinguished from other people who cohabit? The presumption seems to be that cohabiting couples are lovers but what about other pairs of people who share a residence but are not involved in a sexual relationship, such as siblings who live together or friends who live together out of convenience (a particularly common arrangement among the young)?

              I can illustrate these problems with an example taken from my own experience. Some years ago, three friends of mine moved into a flat together. This is my response and not theirs, so I shall not give their real names but let us call them Tom, Dick and Harry. They were all men but all heterosexual. Their cohabitation was motivated by financial convenience and had no romantic element. Since there were three of them, they would not qualify as a couple under the present proposals but Harry later married his girlfriend and moved into a house with her, leaving just Tom and Dick in the flat – a cohabiting couple in the literal sense. Would they count as a couple for the purposes of the new law, even though their relationship was platonic? Tom, finding that he could afford the rent on his own and wanting independence, subsequently forced Dick to move back in with his own parents, so that Tom could have the flat to himself. Would the new law allow Dick to claim financial damage from Tom similar to that currently claimed by a divorced spouse? Tom might protest that the relationship was not romantic but Dick, with pound signs in his eyes, might claim otherwise and it would his word against Tom’s. How would Dick meet, or how would Tom defeat, the law’s test for the existence of a cohabiting sexual relationship? Is the law really going to stoop to summoning witnesses to testify in court as to whether or not one friend really loved another?

              The only solution that I can imagine to all of these problems would be to formalize cohabitation, to have couples who wish to be eligible for marriage-style benefits notify the state of the existence of their relationship and of its sincerity by making a public commitment to each other, in front of witnesses and officials and by the creation of documentary proof. As it happens, there is no need for the law to create such a process, for we already have one: It is called marriage.

              There is also an argument that love should not be a consideration at all. If it is so discriminatory for the advantages of marriage to be limited to married couples, then surely it is equally discriminatory to limit them to married and cohabiting couples? Why should these advantages be the privilege of pairs of lovers, while other pairs, such as siblings or friends, or even groups of polyamorous lovers, are left without such special treatment? I personally would not support so expansive a regime but I, as should have become apparent, do not support changing the current law, so these are not questions that I need to answer. I would, though, be interested to hear the Law Commission’s answers.

 

June 2021