Written evidence from Professor Clare Chambers, Professor of Political Philosophy, University of Cambridge [HAB0254]
I am Professor of Political Philosophy at the University of Cambridge. My submission to the present enquiry is based on arguments I made in my book Against Marriage: An Egalitarian Defence of the Marriage-Free State (Oxford University Press, 2018). In this document I address the questions listed in the Committee’s consultation webpage. I would be happy to provide further evidence, either oral or written, to the Committee on request.
Please note: I have previously given oral evidence to the Women & Equalities Committee’s Inquiry into Body Image on behalf of the Nuffield Council on Bioethics; my evidence here is given in a personal capacity.
What equalities issues are raised by the lack of legal protection for those in cohabiting relationships?
The existing regime of relationship regulation is based on the state recognition of marriage and civil partnership, with other intimate relationships not recognised in law. This is what I call a “marriage regime”. A marriage regime leaves unprotected both cohabiting relationships, whether between sexual / romantic partners or between friends or relatives, and relationships that are not cohabiting but may involve significant areas of dependence and vulnerability, including financial interdependence and care-giving relationships. Unprotected relationships therefore include variations such as: two siblings living together, co-parents who do not live together but who have shared financial and caring responsibilities for their children, cohabiting couples who are unmarried but share finances and/or children, an adult who is responsible for providing care, financial support, and/or decision-making for an elderly or disabled parent or sibling. This is not an exhaustive list.
A marriage regime such as ours creates and sustains a number of unjustified inequalities. It means treating married and civilly-partnered couples differently from unmarried couples in stable, permanent, monogamous sexual relationships, creating an inequality between married couples and long-term cohabitees. It means treating people in sexual relationships differently from those in non-sexual or caring relationships, such as siblings or friends living together. It means treating those in couples differently from those who are single or polyamorous, often granting privileges to those in couples that are denied to those who are single (for example, the spousal exemption from inheritance tax, which cannot be used at all by single people).
The existing marriage regime is characterised by two features: first, relationship practices are treated as a bundle and regulated together; and second, the regulatory regime requires couples to opt in (by marrying or registering a civil partnership. Both are problematic from an equalities perspective.
The bundling aspect of existing regulation means that, through marriage or civil partnership, a couple obtains a variety of rights and duties. For example, a married couple gain rights relating to property, inheritance, immigration, next-of-kinship, parenthood, and taxation. These various rights and duties presume that the various relationship practices they regulate are combined into one primary marital relationship. While some people do bundle together their relationship practices into one marital relationship, most people (including many married people) live more diversified lives. We typically juggle blended families, care for elderly relatives, face family separation by migration, and manage multiple financial dependencies. It is no longer apt to regulate relationships on the assumption of marriage.
This bundling aspect expresses the assumption that central relationship practices – parenting, cohabitation, financial dependence, migration, care, next-of-kinship, inheritance, sex – are bundled together into one dominant relationship. And so it denies people rights that they need in relation to one practice unless they also engage in all the others and sanctify that arrangement via the state. State recognition of marriage is thus discriminatory against the unmarried.
The opt in aspect of existing regulation means that couples only obtain the rights and duties of marriage if they actively register their relationship as a marriage or civil partnership. This means that couples who are not married or civilly-partnered are not protected. Couples who are in a committed relationship may not marry for a number of reasons: dislike of the institution, religious restrictions or incompatibility, family opposition, inertia, ignorance of the consequences, the cost of a wedding ceremony, pandemic restrictions, or one partner’s refusal. Research consistently shows that many people believe – wrongly – that there is such a thing as “common law” marriage, whereby a couple gains the same rights as if they were married after some period of time. Some women who prioritise domestic and caring work rather than paid work are left vulnerable by their partner’s refusal to marry them. Marriage rates differ along ethnic, social, and class lines, meaning that marriage is more common in some socioeconomic groups than others. Basing regulation on the marital norm leaves many vulnerable people and relationships unprotected, often in ways that exacerbate existing inequalities.
The existing marriage regime is not supported by the practical needs and diverse reality of people’s lives. And so the state recognition of marriage and civil partnership can be justified only by claiming that marriage is uniquely valuable; but this, too, fails to treat unmarried people equally. Elevating marriage and civil partnership as the relationship form of unique value denies respect and recognition to the unmarried, whether single or partnered, and contributes towards the stigmatisation of unmarried people (particularly women) and their children.
Should there be a legal definition of cohabitation and, if so, what should it be?
Cohabitation is only one relationship practice, and so cohabitation should be neither necessary nor sufficient for regulatory protection. Best practice would be for relationship regulation to proceed on a piecemeal basis, dependent on the particular relationship practice. I develop this approach at length in Against Marriage.
Relationship practices need regulation when they require legal determinacy or cause vulnerability. In these cases, the state should design maximally just regulation and then apply it to everyone who engages in that relationship practice. In other words, people engaging in relationship practices would not opt in to a special relationship status giving them rights and duties; they would have those rights and duties automatically, by virtue of their practices. For example, rights and duties relating to children and parenthood should apply to all parents. Rights and duties relating to financial interdependence should apply to those who are financially interdependent.
Cohabitation will often be part of these relationships, but it need not be. A new definition of “cohabitation” risks leaving out couples or people who need protection in their relationships but who do not meet the definition of cohabitation (whatever that may be). Rather than defining cohabitation, and then creating a new relationship status based on cohabitation, the law should seek to define those relationship practices that create vulnerability and regulate them specifically and separately.
Should legal changes be made to better provide for the children of cohabiting partners?
Yes. Children’s rights should not depend in any way on the relationship status of their parents.
Should cohabiting partners have the same rights as those who are married or in a civil partnership?
Yes. Marital and civil partnership status should not determine the rights a person or couple have, since couples who do not opt in to marriage or civil partnership (or individuals whose partner refuses) are left vulnerable. Law and policy should be formulated first so as to be appropriate and just for unmarried people and couples, and then applied to everyone.
For example, if it is thought appropriate for some rights and duties to be applied only to people who live together, or who are financially interdependent, or whose relationship is of a certain duration, then those same standards should be applied to everyone whether married or not. Alternatively, if it is thought appropriate for some rights and duties to be specifically consented to, then the same requirement of specific consent should apply to married couples too. (At present, marrying couples are not required to have knowledge of the specific laws of marriage, far less are they required to consent to them.)
Rather than regulating via marriage or civil partnership, the state should regulate relationship practices. Relationship practices need regulation when they require legal determinacy or cause vulnerability. In these cases, the state should design maximally just regulation and then apply it to everyone who engages in that relationship practice. In other words, people engaging in relationship practices would not opt in to a special relationship status giving them rights and duties; they would have those rights and duties automatically, by virtue of their practices.
There are many different ways of regulating relationships, some more just than others. Even in a marriage regime, there is significant disagreement as to the rights and duties that should accompany practices such as cohabitation, migration, financial interdependence, inheritance, taxation, and parenthood, and it is beyond the scope of my response to this consultation to provide detailed accounts of policy for every area of relationships.
When designing regulations to apply to those in personal relationships, separate arguments are needed first to identify each area of state interest and then to specify what the just regulations should be. Such arguments would proceed as follows. For each proposed area of state regulation one should ask first whether, and second why, the state has a legitimate interest in that regulation. The answers to these questions will guide the content of that regulation. Crucially, the arguments will separate for each proposed area of regulation.
The Law Commission of Canada report Beyond Conjugality proposes a four-step process of lawmaking that is a good model to consider:
Question 1: Does the law pursue a legitimate policy objective?
Question 2: If the law’s objectives are sound, do relationships matter? Are the relationships that are included important or relevant to the law’s objectives?
Question 3: If relationships do matter, could the law allow individuals to choose which of their own close personal relationships they want to be subject to the law?
Question 4: If relationships do matter, and public policy requires that the law delineate the relevant relationships to which it applies, can the law be revised to more accurately capture the relevant range of relationships?
So: if Parliament concluded that justice requires wages for housework, then everyone who does housework should get wages. If it concluded that justice requires exemptions from inheritance tax for those who share their primary residence or are financially interdependent, then everyone who shares their primary residence or are financially interdependent should have that exemption. If Parliament concluded that immigration rules should allow those in important relationships to remain together, then individuals should be invited to nominate their one (or more) primary relationship for immigration purposes. In each case it is for Parliament to decide the content of regulation, but the principle should be to apply that regulation consistently across all applicable relationships, not just those characterised by marriage or civil partnership.
Are there examples of good practice in relation to the rights of cohabiting partners in the UK or internationally that the Government should seek emulate in England and Wales?
I give an analysis of various legal regimes in my book Against Marriage, details of which are at https://global.oup.com/academic/product/against-marriage-9780198845683?lang=en&cc=gb. I am happy to provide excerpts on request.
I also recommend the 2001 report of the Law Commission of Canada Beyond Conjugality at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1720747