Contested Cohabitation Rights

Following recent debates on inheritance rights for cohabiting couples, we welcome this guest blog from Samantha Callan and Linda McKie, authors of Understanding Families: a Global Introduction:

"One of the aims of our recently published book, Understanding Families: a Global Introduction, was to introduce readers to many of the academic and popular debates that swirl around the subject of family life in the twenty-first century. Chapter Five considered the diversity of couple relationships accorded social legitimacy in many minority world contexts – yet attitudes remain complex and contested. We explained how marriage has become deinstitutionalised: less governed by the social norms that provide a framework for behaviour, and increasingly concerned with the quality of the relationship.

The US demographer Andrew Cherlin points out, somewhat paradoxically, that in many countries there is a contrary trend of relationships such as cohabitation becoming more institutionalized. In the United States, states are taking steps towards granting cohabiting couples married couples’ rights and responsibilities. Canada has erased legal distinctions between marrieds and unmarrieds (heterosexual or same-sex) who have lived together for more than a year and French Civil Solidarity Pacts give registered couples most of the rights and responsibilities of those who have wed after three years of the pact being signed.

This trend towards institutionalising relationships which are considered to be, intrinsically, more informal continues to excite heated discussion. Last month the United Kingdom House of Lords debated a Private Members Bill on the subject of inheritance rights for cohabitants in cases of intestacy (where someone dies without leaving a will). Lord Lester of Herne Hill, a respected law reformer, proposed in the Bill that a surviving cohabitant would automatically be entitled to the same share that a bereaved spouse would receive if they and the deceased had had a child together and had lived in the same household as if they were married or in a civil partnership for two years; if the relationship was childless the qualifying period would be five years.

Protagonists on both sides claimed the moral high ground of preserving choice in making their arguments: Lord Lester stated that a decision not to get married should not lead to legal disadvantage while Baroness Deech passionately defended citizens’ rights not to be governed by the law if they had decided against or simply not made the explicit commitment of marriage. Among other sources she quoted extensively and perhaps counter-intuitively from Guardian blogs on the subject. The most humorous paragraph in the debate undoubtedly being, “They move the goalposts so that despite not being married, you can still get your wallet nicked.”

The Hansard transcript does better justice to the complexity of the surrounding arguments but does not make the outcome of the debate explicit. Although the Government Minister did not oppose the continuing passage of the Bill into the Committee Stage, the ‘strong reservations’ he expressed on its behalf mean that it will languish in the procedural doldrums and get nowhere. Many issues of family law meet the same fate in the UK and other Parliaments, precisely because of their personal and contested nature. Many (but not all) judges, legal practitioners and media commentators clamour for the certainty of black letter law. But it is precisely the lack of a clear public consensus that makes this particularly dangerous territory for politicians in many jurisdictions to stray into – and likely to remain so."