Emily Thornberry, the shadow attorney general, called the lack of rights for cohabiting couples an «injustice»; Photo: Heathcliff O'Malley
Labour's plans to introduce a form of civil marriage for cohabiting couples would cause legal «chaos» and be «incredibly anti-libertarian», a former High Court judge has said.
Sir Paul Coleridge says that giving couples an automatic right to each other's property if they have lived together for a certain period of time would also «undermine» the obligations associated with marriage.
In 2021, about 3.6 million couples were living together, either unmarried or in a civil partnership, with the number of cohabiting couples increasing by 144 percent since 1996.
Some people suggest that living together leads to «common law marriage», but in reality cohabitation does not create a common legal status, meaning that couples have no special rights to each other's property if their relationship comes to an end.
At the Labor Party conference in Liverpool last week, shadow attorney-general Emily Thornberry described the lack of rights for cohabiting couples as an «injustice» that the party would seek to end if it came to power.
«For too long, women cohabiting couples were left without rights when the relationship ended,” she said.
“If there are no shared assets and parental responsibilities, a man may leave his partner with nothing, especially if he has the means to go to court and she does not.
“It's time to reconsider this.” problem in England and Wales, as it was in New Zealand, Scotland and Ireland. No woman should be forced to marry or stay in an unhappy relationship just to avoid ending up on the streets.»
The plan is «incredibly anti-libertarian»
But Sir Paul, who retired from the judiciary in 2014 to focus on his marriage charity, the Marriage Foundation, said the idea was wrong.
He told The Telegraph that the problem identified by Mr. Thornberry's proposal for women being left in vulnerable situations involves an «infinitesimal number» of cases, while her proposed change would mean a huge expansion of the state into people's private lives.
«This is incredibly anti-libertarian and state interventionist «, he said.
“Why do I ask myself whether the state should impose an obligation on two people to support each other if they did not enter into it voluntarily?”
“The whole point of marriage is that you each decide to get married.” mutually agree that this imposes lifelong maintenance obligations of one kind or another on you, and then the courts interpret this differently.
“Will they really say that if two people live in the same apartment, what -will financial obligations arise that were not even anticipated at that time?
«It's a terrible idea that the state should force this on people.»
The reform would «undermine» marriage.
Sir Paul also said such reform would «undermine» the obligations associated with marriage.
According to a study by the Marriage Foundation, unmarried couples are almost three times more likely to separate by the time their child is 14 than those who married before the child's birth.
Even after controlling for background factors such as ethnicity, age, education, and relationship happiness, the likelihood of separation is higher for unmarried parents than for those who married before or after the birth of their first child.
< p>Sir Paul said: “The essence of marriage is that you freely make a mutual commitment to each other, and this is a very important part of the bonding process.”
Marriage is likely to last longer “because people stopped, thought, discussed and decided they wanted to live together,” he said. “If you just force it on people, you will greatly undermine the process.”
Relationships can end prematurely.
In New Zealand, couples who have been together for more than three years receive legal rights that mean their assets are divided. just like those who are married.
But Sir Paul said introducing such a system in this country could force people to end their relationships before the age of three, which would be «very damaging to children » concerned.”
“This is a completely predictable unintended consequence,” he said. “People float along and then move on, and again, it’s almost always the women who are left in the lurch. This is also harmful.”
Under previous proposals, couples had the right to opt out of a civil marriage by written agreement. However, Sir Paul said: “Personally, I would prefer to have a consent clause. It's called marriage.»
He also said the reform would lead to an explosion in litigation. “This will cause chaos for everyone except the lawyers,” he said. “This will be another wonderful series of trials that the courts will still not be able to deal with.”
Sir Paul said the courts already had “very good powers” to deal with children of unmarried couples, and that he was “perfectly happy” to see those rights “reformed and improved.”
But he added: “That’s a witty statement from Ms. Thornberry.”
“Don’t let the government start telling people what they should and shouldn't do.»
Ms Thornberry's spokesman said: «We welcome the Marriage Foundation's involvement in our review of the law in this area, and — although it would be premature discuss the implications of specific proposals that do not yet exist — we look forward to discussing the issues that the foundation has raised directly with them as part of our consultation process.
“Marriage is an extremely important institution that plays a special role in our national way of life, and nothing we propose will be intended to undermine or detract from it.»
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