Monday, July 09, 2012

Cohabitation rights and the breakdown of civilisation as we know it

"The relentless war against the family in Britain continues in the highest court of the land. Baroness Hale, the veteran ‘lifestyle choice’ radical who, as a member of the UK Supreme Court, is the country’s top female judge, has called for cohabiting couples to be given more legal rights."
So begins a somewhat hysterical piece by Melanie Phillips in the Daily Mail today referring, of course, to Lady Hale's comments in the Scottish case of Gow v Grant.

How could Lady Hale's very reasonable view that English and Welsh cohabitants and their children should have the benefit of the same protection that their Scottish counterparts have give rise to such a venomous response? Well, the argument seems to be that such protection would undermine marriage. Ms Phillips says:
"If those who choose to duck the commitment of marriage can nevertheless obtain its benefits, this makes a mockery of and undermines the institution of marriage itself."
She goes on:
"If people want to avoid the hardship they very understandably fear will result from the absence of legal protection under cohabitation, they can choose to get married. That’s what marriage is for. To bestow this legal protection upon cohabitation is to turn the ratchet of family breakdown another notch."
Unfortunately, Ms Phillips appears to fall into the trap that so many opponents of cohabitees' property rights fall into: thinking that cohabitants have, or are to have, the same rights as married couples. Despite the fact that Baroness Hale makes this very clear, cohabitants in Scotland do not have the same rights as married couples, and no one south of the border is proposing that they should have the same rights here either. As Marilyn Stowe points out in this detailed post on the Gow v Grant case:
"Scottish law does not equate cohabitation with marriage. Rather it gives a limited form of remedy for economic imbalance arising out of the breakdown of a relationship between cohabiting partners. Its impact has been narrowly interpreted by the Scottish courts, and the case of Gow v Grant provides a perfect illustration."
I do not see how such a limited form of remedy can possibly undermine marriage, which gives couples a far greater level of protection. Clearly, it is quite possible to protect those cohabitants who Ms Phillips accepts often suffer hardship, without undermining marriage. No one who supports cohabitees' property rights wishes to undermine marriage, and those opponents of such rights who suggest that they will undermine marriage by giving cohabitants the same rights as married couples are either ignorant, or just plain dishonest.

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