The progress of the Marriage (Same Sex Couples) Bill through Parliament, with its Second Reading in the House of Commons, should be a cause of celebration amongst Liberal Democrats. As a party we have been, on the whole, united behind these proposals and we should applaud the leadership that Nick Clegg, Lynne Featherstone and, let’s give credit where it is due, David Cameron have demonstrated on this particular issue.
Working in Coalition, Liberal Democrats have introduced legislation which will secure equal marriage in law. I doubt very much whether a single party government, whether Conservative or Labour led, would have dared to introduce similar legislation so quickly.
It is time, however, to start looking at proposals for the future – to reflect modern families as they are – proposals for our next manifesto. Conservative opponents of equal marriage claim they are defending the traditional family structure. The Conservative right again demonstrate how out of touch they are with the realities of life. Whilst the traditional nuclear ‘two point four children’ may be the norm there are increasing varieties of family structure. Families are now a mix of cohabiting parents, stepfamilies, single parent families, families with adopted or foster children, civil partnerships, same sex relationships as well as the traditional nuclear family.
In my legal career, whether in rural Somerset or in inner city London, clients have often presented “complicated” family structures, however, no particular family structure has, in my opinion, been preferable than any other in guaranteeing stability, a decent environment to bring up children or ensuring loving relationships. For far too long politicians have demonised or sought to protect, particularly through the tax system, outdated patriarchal family structures.
A recent case that I dealt with, however, has reminded me of the lack of protection cohabiting couples have in law. A client sadly dying from terminal cancer in hospital realises that he has not put in place a Will providing for his partner of in excess of thirty years. For a variety of reasons they had never got married but their commitment to each other was as enduring, if not more so, than a married couple. Falsely believing, like half of the population, in the concept of ‘common law marriage’ his estate, if the Will had not been put in place, would have passed under the intestacy rules and his partner may have had to bring proceedings to secure her inheritance.
It is estimated that cohabiting families now represent 14% of all families. Pre-marital cohabitation is now often the norm. It is time, therefore, for Liberal Democrats to consider policy to reflect society as it is and ensure cohabiting couples have legal recognition. For a variety of reasons, sometimes the expense of a wedding or the desire to have a pre-marriage trial, couples are deciding to cohabit in increasing numbers.
As a starting point, in a series of consultation papers, the Law Commission have considered bringing cohabitants into the intestacy and succession rules, providing financial remedies when cohabitants separate, and ensuring contracts between cohabitants, setting out how they will share their property in the event of the relationship ends, are legally enforceable. The Ministry of Justice have said the Government does not intend to take forward the Law Commission’s recommendations. Scottish law, however, to a certain extent, recognises cohabiting couples and the courts here are, in piecemeal fashion, developing a body of case law. With the number of cohabiting couples likely to increase the future, it is clear the way we live is changing; our laws need to reflect our lives and Liberal Democrats need to be at the forefront of change.
* Roger Crouch is a councillor representing Twickenham Riverside ward on the London Borough of Richmond upon Thames.
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49 Comments
Excellent piece Roger.
We should go further than cohabiting couples though, and move to recognising all forms of relationship set up. As Nick Clegg said “No matter who you are and who you love, we are all equal.”, so let’s take this to its full conclusion.
Roger – surely if a cohabiting couple would like to regularise what happens between them in the event of separation, illness or death there is a very cheap and easy legal contract available to them – a civil marriage or partnership. Why do we need anything else?
Interesting that this piece is written by a solicitor – a member of a profession that will benefit greatly from any moves to grant rights to cohabiting couples.
If cohabiting people want extra rights then they can easily get married or enter a civil partnership. Rewriting the legal system around people who don’t want to grasp the nettle is ridiculous in my view. And illiberal.
Oh dear. Where does this end? Whilst I have every sympathy with the poor gentleman that died of cancer, is it really too much to ask a couple to somehow formalise their relationship of 30 years – if not in a civil partnership or marriage then surely a contract such as a will? If the law is to recognise the fact that people cohabit then what will be the criteria that sets a cohabiting relationship that means something real, rather than a quick fling? Duration? Intensity of relationship? Whether they sleep together? Whether they’ve adopted the kids? Whether they’ve visited the would-be in-laws? Making a relationship formal (with some kind of public declaration of commitment) makes sense for society and it is at that stage that the law should define the relationship as something more than two people who simply exist under the same roof.
We must except that the law cannot be a catch all, especially when people are not prepared to jump through relatively simple hoops to gain its protection.
>lack of protection cohabiting couples have in law.
I see no reason why law needs to be changed, just because adults (and it is adults we are talking about) hold false beliefs in spite of all the evidence available to them over the decades. Currently the law is black and white, consenting adults have basic two choices: either formalise their arrangements or carry on cohabiting and accept their informal arrangements have no legal recognition – simple.
About the only ting that needs to be changed, which the vote last night is a step towards is to enable the ‘civil partnership’ to be more correctly drawn as a ‘family’ relationship enabling care relationships such as the one you describe to be formalised. This was something that was noted when the civil partnership legislation was first introduced, but then the most important thing was to be seen to be politically correct and support a small but vocal lobby rather than do the right thing for the country…
[Aside: Its a bit like disabled facilities – any child under3, more than satisfies the disability criteria, however you try using a disabled parking space or toilet …]
“Conservative opponents of equal marriage claim they are defending the traditional family structure. The Conservative right again demonstrate how out of touch they are with the realities of life”
There are Lib Dem opponents too.
Talking as someone who does not wish to get married, I think comments like Martin’s are what is illiberal. My personal life experiences have given me a strong distaste for marriage, and even if I did wish to get married, I cannot because my partner’s father will not allow her to marry a foreigner. In her culture, that is a very big thing, and I, both as her loving partner and as a liberal, respect her wishes not to defy her father and her culture’s traditions, even I disagree with her choice.
We have been together for 2 years, lived together for 1, and gone through the same trials and struggles that every relationship goes through. So in my mind, well, you can just get married, shows a deep disrespect towards the ideal of marriage, It also portrays a Victorian like view of people’s rights as it suggests have to get married and live by the majorities’ rules. To say we have less rights and we are second class citizens because we have taken a decision which society deems ‘not the norm’ goes against the very core of what it is to be liberals.
Finally, it shows a deeply flawed view towards the problem of personal circumstance and the fact that in the real world, peoples’ lives do not always fit perfectly into this ‘perfect’ 2.4 children family lifestyle.
If you wish to view me as wrong for not being in the ideal of marriage, that is your right, but to request that the Law treats me and my partner as second class citizens for that belief is abhorrent to me.
It is not a question, as Richard Harris puts it, of where this will end but where we are now. Fewer people are marrying; more children are born out of marriage and estimates suggest approximately a quarter of the male and female population are now in long-term cohabiting relationships. It is precisely for the reason that cohabiting was no longer a minority choice that the Law Commission recommended reform.
It seems to me illiberal to suggest the only choices are to marry (or civil partnership) or not to marry. For a variety of reasons, couples make the positive choice not to marry. I know of situations, such as that described by Liberal Al, where couples do not marry because of possible parental disapproval. Legislation is, therefore, needed to prevent unjustices which arise on death or separation. Yes, of course, couples can put place Wills or Declarations of Trust but many do not – not helped by the fact that many believe incorrectly in the idea of a common law marriage.
Of course, any legislation would need to define what constitutes cohabitation. The Law Commission suggested a “qualifying cohabitant” would be someone who had lived continuously for five years with the same person in the same household, ie. not a quick fling!
I wrote this article off the cuff yesterday and am pleased, after further research, that Liberal Democrat peer, Lord Lester of Herne Hill, introduced an Inheritance (Cohabitants) Bill in the House of Lords last October. It is notable that the Republic of Ireland affords protection to cohabiting couples – it is time we caught up.
As to Martin’s comment that it is the legal profession that will benefit from moves to grant cohabitants rights, I anticipate this would not be the case. Lawyers thrive where there is uncertainty, ambiguities and dispute.
Liberal Al – it is very simple and straightforward for you to draw up a contract that formalises what happens to your property should you spplit/become ill/die. Society has an off the shelf version called a civil marriage; it takes about 15 minutes and you only need 2 witnesses (and no fuss) to enact it. I’m sure that in your partner’s culture this would not be recognised as a wedding; and if you don’t want to call it a marriage, call it a state partnership property contract.
Roger – “Of course, any legislation would need to define what constitutes cohabitation. The Law Commission suggested a “qualifying cohabitant” would be someone who had lived continuously for five years with the same person in the same household, ie. not a quick fling”
Surely, it is far easier for those two people to get a civil marriage certificate – no messing around with definitions of cohabiting.
Education is the thing.
>Surely, it is far easier for those two people to get a civil marriage certificate – no messing around with definitions of cohabiting.
Definitions is only the starting point, now gather the largely circumstantial evidence and try and prove a case where it will largely be one person’s word against another… Far simpler for people to do what they have always done and made a formal public declaration about the status of their relationship. But then that would not create work for solicitors that in many cases could involve legal aid …
You could always try extending civil partnerships to heterosexual couples. I know a fair few couples who aren’t married but have just about everything else, including children, together. This argument is advanced here:
http://heresycorner.blogspot.com/2012/03/why-there-should-be-civil-partnership.html
@Roger, that is a very nice way of putting it.
@Tabman, there several problems with your point, both when narrowed down to my personal position and taken in its wider context.
Wider context:
1=Not everyone wants to get married; that can include not wanting a civil partnership. I include myself in that group. I know many others who also include themselves in this group. We are a growing number as the statistics show, thus the Law has to recognise we exist. I do know people who have done what you suggested, but there is a key point here, they did not wish to do it, they did it because the Government De Facto forced them to. I know of at least two couples, where despite being stable relationships for +10 years, they had to get married due to the way the Law treated them as co-habituating couple. Now, surely as Liberals, the idea that Government policy is de facto forcing people into an intuition they do not wish to join is wrong? Regardless of whether you personally think marriage/civil partners are great or not, we have to respect that others do not believe in the intuitions of marriage/civil partnerships and that the Government should not be forcing marriage/civil partnerships on people.
2=Civil Partnerships again do not cover personal circumstances and to claim otherwise, is erroneous at best.
3=Civil Partnerships and marriages are not equal in the eyes of the law.
4=We are not asking for us to just be given rights the second we move into a flat together, but that the Government/Law recognises this lifestyle choice and begins to legislate for it appropriately.
Personal:
1=You do not understand my girlfriend, or her culture and her/my position marriage. Ignoring how presumptuous you are, I still have to say that suggesting that we just ‘get’ a civil partnership is irresponsible of you, and were we to do it, it would be equally irresponsible of us.
2=I can assure you that her Father, who does not speak English, and whose country/culture has no word for Civil Partnership, will not see it that way. In his eyes and the eyes of his culture (my Girlfriend included), a civil partnership is just a marriage. Maybe to some that is wrong, but to be honest I am not here to debate that issue. Different cultures have different outlooks on these issues and I realise that marriage has very different meanings and conations in other cultures.
3=I am not on about when we break up. I do not plan to break up with her, and should it happen, we have already arranged the plans to sort that out. I am on about the equally important things like inheritance, pensions, certain issues regarding possible children…etc. Currently this is a legal blackhole which needs filling.
I am not suggesting that co-habiting couples should be treated exactly the same as married couples, but that we should have the same equality of rights. That does not mean the same rights/legislation, but that we should not be punished for our decisions when we do not harm others with our choice.
How can it be liberal, just, equitable and fair that a couple which marries and devoices within a few years has more rights than a couple which lives together for 30 years, but chooses not to get married. Who is the Government to arbitrarily say which relationship was stronger or more meaningful? Who is the Government to say that one relationship should have more rights than the other?
PS Tabman, as for underdeveloped point about education. I am going to guess that you are implying that those who do not get married (or Civil partners are uneducated). Well, we currently we have at least two people educated in Law talking on this issue, are you really claiming that Roger and I are not educated enough?
As for Roland’s, I have to call it conspiracy, if money was all that is at stake here, then Lawyers would be wholly behind more marriages, not less of them.
@Liberal Al
These proposals seek to place legal rights and obligations on those who choose to live together, whether they like it or not. By seeking to grant legal rights on those living together, you are essentially forcing cohabiting persons into a legal relationship when they may not have sought one. That is what is illiberal about these proposals.
@Roger Crouch
Of course the legal professions will benefit from these moves if they are successful! They will be involved in parties claiming from one another when they know that they can seek legal redress.
Recently, a friend of mine was left by her long-term boyfriend, who then moved out and wanted half of her house despite not wanting to marry her in the first place. Under these proposals she would have been up a creek without a paddle and facing big legal bills, whereas in real life she was able to tell him to get knotted without any cost to herself.
These are utterly ridiculous proposals, and they don’t even deserve the time I’m spending in refuting them here.
Hello Roger, you will know that I support something a little different. Child access under international law, these are very important too. Divorce and relationship breakdowns, are an area that need understanding, the “red mist” rules for about a year. But this can be a problem where ever it is.
I have sympathy and understanding for those who face this situation, and it is written about by the press at present ,on the subject of an MP who very recently retired from Eastleigh. I will not go further that is unfair.
Good to see you writing on line, I hope things are going well for you in London.
@Martin, I am going to presume that your skewed explanation of the Law here comes from a misunderstanding, rather than a deliberate attempt to blur the facts.
Point 1: I already clarified that I was referring to rights outside of break-up rights (which I will explain later do exist in a manner already), such as pension rights. The problem is that due to the haphazard manner in which this area of the Law is developing, currently the only real area where rights can be found is during break-ups. However, areas where it is equitable and fair for rights to be naturally given to couples, such as collecting on a partner’s pension, or inheritance, still lack legal recourse. This means you have cases where a couple are together for many years and in a happy relationship before one partner suddenly and tragically dies unexpectedly. This often then leaves their partner in a very tricky position. IE One partner has no right to the inheritance because simply, neither had yet written a will or the will needed updating to include the new partner. Or we have cases of older couples where the partner loses out on her husband’s pension as they decided not to marry. Are you seriously suggesting that it is illiberal to ensure that the Law protects couples from such misfortunate just because they did not wish to op into marriage?
Point 2: If he went to a solicitor, then he would have discovered that there are a number of ways in which he can try to prove he has an interest in the house; however, as I do not know the full facts of the case, and you appear quite bias, I will not comment further on your friend’s personal case. What I will say, however, is this. The fact that one can prove an interest in their partner’s property shows the Law does recognise to some extent cohabitating partner’s rights, (just only during break-ups) meaning that your point this reduces legal fees is wrong. If anything, it can make more of them because these cases are far more complex than most normal devoice cases due to the current lack of clarity meaning that Judges and lawyers have had to borrow from other legislation to cover the current legal blackholes. Furthermore, in these cases the partner who has the hardest legal battle is normally one the one in the weakest financial position, meaning these cases all too often leave the most vulnerable partner unfairly worse off, especially when children are involved.
Point 3: As I previously stated, these rights have developed as a consequence of other laws being brought into cases where the Law lacked clarity. This means that there are many blackholes that need filling in areas such as soldiers’ partners’ rights, pensions and as Helen very rightly brings up, child access. These areas are simply left inequitable as the law stands and they need clarity. The Law cannot simply continue to pretend this is not an issue. The Law is already involved, whether it likes it or not, and as such we need legislation and clarity in this area.
Liberal Al
I sympathise with your situation and other co-habiting couples, having been in a very similar situation in our younger days. I am not sure, however, what it is that you want the law to be changed to that would include couples in committed relationships and exclude those who are ‘transient’ – how is the law to know who it should protect and who not to. In the case of some ‘civil contract’ , at least the state knows that both individuals want to confer those rights on their partner, should they unexpectedly die. We all know if relationships where one partner is not as committed as the other and even after several years, leaves them for someone else. I’m not sure it would be right for that person to have pension entitlements etc from the person they have left. Sorry but I am struggling to get a handle but I guess essentially what I am asking is if you were in charge of making the law, what would you do?
Sorry but I do not support this. If I live with anyone why would I want them to suddenly even after some qualifying period acquire legal rights without my consent. Some flat mates live together for more than 5 years without being in a relationship should a flatmate accidentally be given such legal rights? How are we going to decide the difference between flat mates and people in a relationship? Who will conduct the investigation into what the nature of relationships are/were?
I would support extending civil partnerships to heterosexual couples for those who do not wish to get married but do want some form of legal protection/recognition of their relationship. However we have probably ruined the chances of this working as we have people in civil partnerships now who for all intents and purposes consider themselves married so the differentiation between the two is probably already lost.
@Phyllis , I understand your point and thank you for the considered manner in which you express it. However, before I answer your question, I would just like to highlight two points:
1=Many people do not realise just ‘what’ rights they give/lose when they get married.
2=Unless you assert that not getting married is wrong, we cannot willfully justify leaving the law in such an unclear and inequitable situation.
3=The Law is already involved in these cases (whether it be in denying a partner her rights to a pension or the effects it has on immigration rights) so to claim that we can take a lessie faire approach to this is naive, I am sorry to say.
I cannot answer you question too indepth as I lack the time; however, what I personally want ;
1=Wholesale reform of divorce law to make it fairer, especially for the more vulnerable partners and the obligations/rights of fathers.
2=For the Law not to have cases where a man and a woman live together for say 25 years, with one partner as the bread winner and the other as a housekeeper. In that time they raise three children, aged between 11 – 25, when one of the bread winner meets new partner. Legally, he can leave the housekeeper partner completely high and dry; how can this be equitable?
Next I should clarify that the Law is more than capable of investigating evidence of de facto basis and inferring ‘partners intentions.’ Not only does it do this in areas like Trusts, Property, Contract and Company law all the time, it also very often does this in Family law and divorce cases. So there is no need to worry that the Law ‘cannot’ know their intentions.
This means, I think it is not only right for the Law to do this, but very feasible as well.
The main areas which need clarity are:
Property law. (Note, this is not just your land/house). When it is fair and equitable to do so, we need easier recourse for co-habiting to claim for lose caused by the relationship.
Co-Habit partners to have access to home rights.
Co-Habiting partners to have access to pensions, soldier’s partner’s rights and other derived rights. If partners live together and are de facto married, they should be treated as such unless one or both partners expressly, or by implication of their conduct, renounce such claims. (This, of course, would be time based and judged on conduct of their relationship.)
For Immigration law to have greater clarity if the relationship ends after 2 years.
There are others, but they are technical and small. Note, I do not think the rights should be the same as those who are married/ in civil partnership, but that does not mean the Law can ignore the existence of this growing lifestyle choice.
Sorry, highlighted three points, haha.
Feel should clarify myself now:
(Though, this is not strictly a co-habition one, now think should be noted because it can come as a result of co-hab.) In the case of children, sole responsibility should not fall on the mother, even when fathers are not on the Birth-certificate. Furthermore, fathers in such cases should have greater access rights and not have to legally acquire such rights/responsibilities. Currently, when unmarried, there is no automatic rights of a father, which is wrong.
Co-habiting couples should be allowed to adopt as a couple.
Co-habiting partners should have access to bank accounts in cases of sudden and unexpected death, or when one partner is deemed mental unfit to govern their own life.
Of course, this will first be evidence based, judged in ascending order on:
1=Expressed written intents of one or both partners.
2=Expressed verbal intents of one or both partners.
3=Inferred intentions of one of both partners through conduct.
Secondly, there will need to be other restrictions, like, actually having to be in a relation and proof of co-habition for a certain time limit…etc.
Oh, and unmarried gay and lesbian couples should be allowed to foster in Scotland.
Liberal Al – I am not claiming that those that don’t want to get married are uneducated, far from it. I am making the point that too many people assume rights (“common law husband/wife”) that aren’t there and need to be educated as to the true position.
You claim you want the protection of the law – I am stating it exists and can be obtained through a short public delcaration of intent. What could be simer? Also, you want to have your cake and eat it, it seems – you claim you want the protection of the law but that you don’t want to be “forced” into marriage.
Liberal Al
If you don’t want to get married then don’t! it is your choice , just accept that you have to live with the consequences of your decision.
Just because there is an increasing number of cohabiting couples, doesn’t mean that it is a desirable state of affairs – just think in terms of drug dealers ….
I also think you are under some form of delusion about what is and isn’t illiberal. Personally, I would be challenging the illiberal racist and sexist views of your partner’s father and encourage your partner to do what many British women do and give her father an ultimatum – it will be the start of her becoming an adult woman in her own right. It may also unburden the father because he isn’t totally unsympathetic to his daughter’s situation – otherwise he would be vigorously protesting at her obvious relationship with you. I’m not saying such confrontations are easy (they are not) but they can totally transform the parent-child relationship to a much healther adult-adult relationship and they tend to leave no room for doubt as to where you really stand.
I don’t see what the problem is in expecting people to be pro-active in defining their relationship. If I want to go on holiday I can’t say that it is against my beliefs to get a passport. If I drive, I can’t say I do not believe in car insurance. If I want a tv, I can’t say I don’t want a tv licence. In those instances we except the personal disadvantage (time / cost) because society works better if we do. Declaring relationships is no different.
@ Liberal Al
As Martin Lowe has pointed out you are looking to force legal obligations on people who have not sought it. Also you could be including people who are even more removed from the situation.
You appear to have you perception skewed by your personal circumstances.
Perhaps considering yourself consider someone who at the age of 55 loses their spouse to some kind of unforeseen event. There are grown up children of the marriage but the surviving partner looks to be fine for some time. After a while they start to see someone, and after a year or so move in together. The widow/widower tells the new partner that they have no intention of remarrying and both are happy to live together.
Six years later the widow/widower dies. Under your scenario there is now legal ambiguity over who inherits the assets of the original couple. The children or the new spouse? Your system has added complexity.
You should also think about what this does to incentives regarding breaking up. In the US the states with 10 year expiry laws for pre-nups forces people with pre-nups to choose at the 10 year point if they want to stick or end it. Arbitrary “maturity” points create odd incentives.
@Richard:
1=You do not have to have a passport.
2=Did you just compare owning a Television to marriage? I am sorry, but I just cannot take that point seriously.
@Tabman
For the education point, I admit, I had not heard of common law marriage until you raised it as an issue, so I cannot comment further there, but I do agree that clarity is required here. However, at the moment this supposed lack of understanding among people is not surprising when we realise how unclear the Law in this area is.
Interesting that the author of this piece hasn’t come back to further defend this bonkers idea.
The last time I heard about this kind of proposal, the idea was to steamroller co-habiting couples into a nest of legal obligations if they had lived together for as little as two years! Great news for the legal profession, who can make a mint when it all goes South trying to unpick allegation and counter-allegation as to what construes co-habiting, as well as invading peoples’ personal lives to decide the exact date when lodgers become lovers.
If there’s people with some sort of allergic reaction to the ‘M’ word, that’s their problem – not the State’s. When people have a free choice as to get married/form a Civil Partnership, a free choice to draw up a Will as they see fit, and a free choice to arrange other legal covenants, then there is no good reason for the State to step in and illiberally say to people “We have decreed that you two are now a legal item” when the two people in question haven’t made a formal commitment to one another.
Maybe this is why the author hasn’t returned – what with his profession having a clear financial interest in the establishment of what would obviously need to be extremely complex legislation.
Liberal Al
>1=You do not have to have a passport (to go on holiday).
No you don’t, but if you wish to travel outside of the UK mainland you will find it greatly assist your exit and return; unless of cause you prefer the adrenalin rush of using unauthorised routes of exit and entry …
@Martin – Apologies, I have not come back to defend my article as quickly as you hoped. I accept my idea is controversial but it is wrong, in my opinion, to describe it as “bonkers”. If the idea was “bonkers” the Law Commission would not have spent time examining the injustices that long-term cohabiting couples suffer currently due to our current succession, pension, family and taxation laws. If the idea was bonkers, a socially conservative country such as the Republic of Ireland would not have introduced legislation along the lines I propose.
Yes, of course, married, unmarried couples and civil partners should put their affairs in order but the vast majority of the population do not put in place Wills etc. As Tabman has pointed out, there does need to be education to dispel notions such as the common law marriage. Fortunately, in the case I mentioned in my article the client was able to put in place a Will setting out his wishes but what if he had lost testamentary capacity? Before you accuse me of defending the legal profession, you do not need to use a lawyer to put your affairs in order. Further, I simply do not accept the legal profession would benefit from the introduction of this legislation. It would create more certainty. In a similar way pre and post nuptial agreements introduce certainty as to what should happen on divorce. Long-term cohabiting couples would become aware that by virtue of being in a long-term relationship there are commitments and obligations to each other and, more importantly perhaps, to any children they have. It would be open to cohabitants to opt out of these obligations
It strikes as me totally illiberal to say the only options are marriage or not to marry. It also strikes me as illiberal to say that the only valid partnership is one the state has sanctified in public. Family life is a private matter and, as Liberal Al has explained, there are many good reasons why a couple may not want to get married. There are also circumstances where a long-term cohabiting couple may not be able to marry. What about situations where one partner, perhaps cared for by the other partner, lacks the requisite mental capacity to understand the marriage contract? What about situations, which often arise where the “married couple” have emigrated to the UK believing that their marriage overseas is recognised in the UK when it is not? What about long-term cohabiting who are simply saving up for the wedding they want but financial circumstances prevent that marriage ever happening?
The proposal to open up civil partnership to heterosexual couples is an interesting one – this is the way the law has developed in Ireland.
It is worth reading the debate when Lord Lester’s bill was introduced in the House of Lords: http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/121019-0001.htm#12101923000436
It is also worth noting that these are ideas that may already being considered for the next manifesto: http://www.thesundaytimes.co.uk/sto/news/Politics/article1206634.ece
@Roger Crouch
Less than a minute’s worth of Googling shows how proposals such as yours forces co-habiting couples into a legal arrangement without their specific consent and at legal cost to themselves should they wish to avoid this:
http://www.anthonyjoyce.ie/civil-partnership-act-effects-cohabiting-heterosexual-couples-ireland/
Take note of the solicitor’s explicit comment “A new development is the provision of Cohabitant Agreements, which is a contract that allows couples to outline their financial affairs and specifically opt out of the ‘redress scheme’. To be valid and enforceable the Cohabitant Agreement must be in writing and signed by both cohabitants with independent legal adviser“ (who clearly won’t be providing such a service pro bono).
Your proposals take away choice from people where it currently exists.
I’m dumbfounded how you can’t see how illiberal this is.
No Roger it is absolutely correct to describe your idea as “bonkers”.
Currently cohabiting couples have exercised their freedom of choice and voluntarily opted out of the obligations (and benefits) of ‘marriage’. So this causes ‘problems’ with succession, pension, family and tax laws – so what? Simple solution is either make the effort to make appropriate tailored arrangements or get married.
All your idea does is to introduce a new form of marriage, only it isn’t called marriage (lets call it “common law marriage”) and comes into effect after some arbitrary (ie. legally defined) set of circumstances and period of time have been satisfied. Which automatically means that there will be couples who consider themselves to be cohabiting but will fail the criteria. Obviously we also need to introduce a new form of divorce (“common law divorce”) so that a couple can separate (as they do today) and marry other people! Also as you point out we need a opt out – will this need to be a formal opt out or an informal “common law opt out”? and is this an all time opt out or a more limited opt out that has to be renewed every so often? Finally how are you going to evidence all of these private arrangements?
As for your terminal cancer client, sorry he had 30 years in which to write a will or marry his partner, the fact he was dying and still didn’t have a will was wholly down to his laziness, yes his partner was nearly left with nothing but that was her choice to be involved in an informal arrangement. Over the last 30 years there has been much publicity about having a will, as there has also been publicity about there being no such thing as a “common law marriage” – so any one who tries to claim that they did not know is trying to pull the wool over your eyes.
Yes there are grounds for true civil partnerships, that basically link two consenting adults together regardless of gender and family relationship. However, such arrangements need and should be activity and publicly entered into.
>where one partner, perhaps cared for by the other partner, lacks the requisite mental capacity to understand the marriage contract?
I assume you cannot be unaware of the growing body of law around the protection and handling of the affairs of those with limited mental capacity. The last thing a family need is a ‘carer’ of an ageing parent to quietly get full inheritance rights just because they’ve lived in for a qualifying period of time – or is there a “common law impediment”?
>where the “married couple” have emigrated to the UK believing that their marriage overseas is recognised in the UK when it is not?
Not our problem, they failed to do due diligence.
>What about long-term cohabiting who are simply saving up for the wedding they want but financial circumstances prevent that marriage ever happening?
What!
A basic registry office ceremony can be had for less than £100. Sorry, very few people can actually afford the wedding they want, the majority tailor their wedding to their budget.
No as can be seen the idea is totally daft. As a liberal society, there are only two choices: either stand up and declare your partnership/marriage as a matter of public record and hence benefit from law or keep quiet and accept that your private arrangements have no legal standing.
Marriage is a contract which sets out the rights and responsibilites of the participants both in the marriage and in the case of divorce. Many people who marry don’t actually know exactly what these are because the ‘ being in love’ bit and the ‘ big expensive ceremony’ bit gets all the attention. I recall the vicar who conducted my marriage ceremony going on at length about these and as well as trying to pursuade my future husband to rejoin the church. Nothing about pensionsand property although children did get a passing mention. It might be useful if the details of the contract were spelt out by registrars and vicars at the time or taught in schools.
Those who decide not to marry for what ever reason, would perhaps then know about essential things like a will and a Last Power of Attorney.
@Tilly, while I still think this area needs clarity. I do agree with your proposal that those getting married should be provided more information about what they are getting into. A slightly different issue in my opinion, but a very important one.
What is very clear, people know if they are or are not married (ignoring reductions in mental capacity) and whether such arrangements were or were not made with their consent, which is the current situation, because ‘marriage’ is an explicit contractual agreement involving all interested parties gathering together around a table and sign the agreement (this is an area where the Quakers get it totally right as ALL witnesses sign the marriage agreement).
What is also very clear, with some form of “common law marriage” which quietly happens when some arbitrary set of circumstances (that will certainly change over time) are satisfied, people will not know if they are single, married, “common law married” (or a combination of these at the same time!), because there would have been no witnessed signing of a contractual agreement.
Excellent posts by Martin and Roland explaining why the proposal is indeed bonkers.
Liberal Al: May I ask – if your girlfriend’s father would be so appalled by the idea even of a civil partnership, then how does he feel about the fact that his daughter is co-habiting with you? Does he imagine you spend your evenings playing draughts?
If people cannot be bothered to take care of their own affairs then that’s their own problem. It’s ludicrous to claim that their rights are being infringed or that the state has some sort of responsibility to step in and formalise their personal relationships posthumously. And there is no such thing as an “unexpected” death, unless one harbours delusions of immortality. Our death is the single most expected thing that will ever happen to us.
The only people who will benefit from this proposal are the lawyers who will have more opportunities to make money out of the confusion that will surround whether a cohabiting couple have acquired the “rights” in question. For instance, in the case of the death of the cancer sufferer after 30 years, it is said that she would have to have brought a legal action to have a claim on the estate but surely under these new proposals she would also have to take some legal action to assert her rights as a cohabitee and other claimants on the estate might counter-claim that she was merely a friend of the deceased. After all, they never got married in 30 years and the deceased never thought to make a will giving her anything. These proposals will cause chaos but that’s what many like, I suppose.
What is quite worrying is that:
1. Roger Crouch is a practising solicitor and is unable to either provide a coherent argument in favour of his proposal or to provide a coherent framework that complies with the “Keep It Simple Stupid” modus operandi.
2. Roger was “the [LibDem] party’s candidate for the 2011 Feltham & Heston by-election”. Which would firstly seem to give risk to concern about the LibDem candidate selection process, But more importantly raises the question as to whether practising members of the legal profession (and their partners) should be allowed to stand for Parliament.
Roland – I disagree. I think Roger has provided a coherent argument for reform, based on change in society & a desire to right injustices, and a coherent framework for reform based on the Law Commission’s recommendations. He has also pointed to the statutory reforms introduced in Scotland and Ireland which also provide a coherent framework for legislation. I am surprised Roger did not refer to Baroness Hale’s recent summary in a Supreme Court decision which also makes the case for reform. More importantly, from my perspective, is the author’s wish, as I see it, to ensure no one is enslaved by conformity.
Your suggestion that lawyers, and their partners, be barred from standing for parliament is bizarre. Your concern about the robustness of the LibDems candidate selection is also odd – by all accounts it is pretty robust for a byelection.
@Caroline T
Yes by woolly thinking standards Roger has presented something that by a circular route suggests that reform of laws around cohabitation would be beneficial but makes no mention of what injustice would be righted by this. However, as the discussion above has shown, none of his examples have stood up to casual scrutiny. Likewise just examining one line of discussion has thrown up many issues around clarity that Roger has totally failed to address. Yes he indicated there were reforms in Ireland and Scotland – hence we should do similar without looking at what has happened in those places – namely the creation of a new revenue stream for solicitors et al. with little real benefit to society (something else missing from Roger’s piece).
I question the clarity of your thinking, if you believe in your point “More importantly, from my perspective, is the author’s wish, as I see it, to ensure no one is enslaved by conformity.” then you have a problem as Roger proposals don’t do this, in fact they do the opposite, namely they FORCE cohabiting families into being MARRIED. I do not see how in any way that can be liberal and a state that the vast majority of those who cohabit really want to be in as if they really wanted it they would explicitly get married. But you are totally right to take into account those people who have decided to opt out of ‘married’ so as to escape the enslavement of conformity, something that Roger does not.
My point about lawyers is totally valid, parliament is where the laws of our society are made, hence we need to be sure that those elected are acting in the interests of society and not out of their own vested interests. From the arguments advanced by Roger, it would seem that he is more interested in creating work for lawyers than creating clarity in peoples lives, Also it can’t escaped people’s attention how some parts of the law have seen significant growth since 1997 – maybe I’m old and cynical, but for example I do not believe it is co-incidence that the growth of Matrix Chambers, founded by Cherie Blair, nee Booth in 2000, didn’t happen to have anything to do with the laws brought in by her partner Tony Blair whilst he was in government… Similarly it is right to raise question about (LibDem) candidate selection although I accept that this is only a single article and hence example of a candidates ability to promote and defend a viewpoint.
Of course, another issue in respect of lawyers standing for parliament is that they are all members of a closed shop trade union that is vastly expensive and difficult to join. I’m not against them standing for parliament but at least their closed shop should be reviewed. After all, poor people aren’t allowed to join closed-shop unions anymore, are they?
Although it appears that Roger has now abandoned his opinion piece, I wouldn’t go as far as Roland and Ed in questioning the very basis on which he once stood as a Lib Dem candidate.
I would, however, question his and anyone else’s commitment to liberal values when they seek to legally bind people against their will over a ‘problem’ – a ‘problem’ that can easily be overcome by individuals who actively choose to recognise their own responsibilities and consequently to act like adults.
Well said Martin.
I think you express the point very clearly, something I failed to do in my questioning.
Last note on this – I promise.
Roger Crouch promoted this article on Twitter, and in response to a point there about compulsory will making, he said “…whilst it is sensible it would be impossible (& wrong) to compel people to make a Will”
https://twitter.com/RogerCrouch1/status/299174827447685121
Yet he wants to compel co-habitees into a legally -binding arrangement just because they live together!
The mind boggles!!!
Liberal party please keep the state out of my private affairs. If my boyfriend walks out he is not taking half my house with him. If we wanted to be married, we would be married. If we have a thing against marriage, simple contracts can recognise contributions to mortgages or whatever but surely it is for individuals, not the state, to define their relationship.
Susan the problem is the party is afraid of itself. Rather than settling for keeping overly pro marriage policies out of the manifesto, it has to go further and start attacking marriage and trying to remove its relevance entirely. I agree with you entirely that if I wanted rights to my partner’s property I would sign a contract.
Why I say this is an example of the party being afraid of itself, because rather than settling for popular liberalism, it starts trying to do extremist things that most of the public don’t agree with, because they believe it will keep the activists happy.
As for Roger’s comment:
[“As for your terminal cancer client, sorry he had 30 years in which to write a will or marry his partner, the fact he was dying and still didn’t have a will was wholly down to his laziness, yes his partner was nearly left with nothing but that was her choice to be involved in an informal arrangement.”]
I cannot agree Roger’s suggestion that should you fail to secure some kind of provision (as a beneficiary) to a will, that it is “wholly down to *** laziness”. Indeed there are many circumstances in marriage and partnership where provision by way inclusion in a last will and testament are out of reach of the partner or wife or husband. That’s why in probate court each case is taken on its own merits.
I find it disgusting that every effort has been made to provide GLBT with “civil partnership and now marriage “yet couples who are not married but have been living together as common law marriage are ostracized and have no rights at all. Yet these discriminated couples have to share information on all the finances they have together with government bodies who then decide if they have any entitlement. IT IS TIME THE GOVERNMENT CHANGED THIS AND TREATED COMMON LAW COUPLES FAIRLY YOU CANNOT HAVE DOUBLE STANDARDS!!!!!!!