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Asymmetry, Controversy & Social Meltdown – Cohabitation Pt 1

October 19, 2010 Leave a comment

 

Part 1. Cohabitating is an asymmetric controversy and leads to social meltdown

                                                    

By Robert Whiston FRSA – April 11th 2009

Part 1 of 2

Preamble

The state’s view is that cohabiting is an unwritten, oral contract that ought to be regulated. It sees women of a certain age left without the financial support of their former partner and seeks to redress this by making him pay maintenance. To this end it has enlisted the help of the Law Commission to devise ways to implement this ambition.

If those forces that feign concern about ‘human rights’ prevail then young men who have cohabited with a woman for 2 years – or less if she becomes pregnant – will be fleeced as if they had been married for 20 years.

That is at the nub of Lord Lester’s private parliamentary initiative – and don’t think he will easily fail. He directs and is associated with allegedly non-political charitable organisations where each donation is measured in the hundreds of thousands of US dollars.

This has ensured he has already tasted success in civil partnership (2002); forced marriages (2007); anti-smacking; gender equality (2002); and homosexual rights have all become Acts. Even his Constitutional Reform has been enacted which must stand as a unique, not to say impressive, accomplishment given that Britain has no a written Constitution per se.

This papers deals with the diametrically opposed views of a state wishing to regulate private lives (in this instance the right to cohabit), and the private citizens’ wish to be left alone to make his own cohabiting arrangements. It states the case opposing more state intervention and it presents the counterpoints to the Law Commission’s many assertions.

At the crux of the argument is the unadvertised reneging by the Law Commission of its own principles set 40 years ago, namely that each person, male and female, is a soverign individual free to make choices and that it is unjust for one party to withdraw from an affair and expect to claim monetary compensation (see ‘breach of promise’ below).

The problem is that cohabiting, unlike marriage, is not an outward expression, a covenant witnessed by the public. It is a private arrangement of convenience, a quid pro quo, a selfish act with no regard to the greater good of public or society.

It is, at best, only an implied contract which in turn rests on an implied consent to live together. The capacity to form such a relationship is itself implied, and its permanence is even more tenuous. This can only give rise to an implied status with implied intention and implied certainty.

The Cohabiting Commissariat

For those opposed to cohabitation being legalised, boosted, encouraged, or in any way put on a par with marriage and the commitments that it entails, the following provides salient points to counter what is increasingly looking like an insipient campaign to usurp the will of the people.

It is said by reformers that in surveys 50% of people these days have no objection to people living to there and that somehow they take that as a green light to begin legislating. Firstly, what people say in surveys and actually believe are 2 deferent things; but even if they were not, it is the right of each citizen to choose the lifestyle that suits them best and that must mean it is not the state’s business.

Nonetheless, a cabal or commissariat wants to make it the states business and has wanted it for over 30 years. They return to the fray periodically and they are not going to give up easily.

Quick Fix

We live in an age that finds the ‘quick fix’ utterly irresistible. We never remind ourselves that easy answers are precisely that – easy answers. Though their appeal is universal and immediate, easy answers are not solutions – and where a solution is not found but an easy answer employed instead matters will sooner or later unravel.

A Persistent Government

Is it emblematic of a weak government that in 2005 it asks the Law Commission to make a report and yet two years after their Report later is published (March 2008), Bridget Prentice, the junior minister announces that, “For the time being, therefore, the government will take no further action.”

Is this a tacit acceptance of the propositions contained in some submissions to the Law Commission’s report that to introduce rights for cohabitees would adversely affect land law and the citizen’s right of free choice and free association ?

It is doubtful, for by Aug 2008 a cohabiting awareness campaign had been launched; a report by the University of Exeter into attitudes about cohabiting had been paid for Department for Constitutional Affairs. [1] 

Thus by March 2009 private members Bills were taking up where official Bills had left off – prompted by who or what we are never told. This is how unasked for reform creeps up on an unsuspecting public and overwhelms all resistance.

Cohabiting Campaign Funded by Government

The Department for Constitutional Affairs is funding the “Living Together Campaign” based on research coordinated by the Nuffield Foundation. Active members listed as its Advisory Group can be found to be predisposed to cohabiting law reform, e.g. Anne Barlow who has co-authored books with Elizabeth Cooke (Reading Uni.) and a Law Commissioner, who in turn has co-authored papers with Brenda Hoggett (now Baroness Hale). The title Anne Barlow’s and Elizabeth Cooke’s books leave no one in doubt where their sympathies lie, e.g. “The Land Registration Act 2002 and the nature of title”; “Cohabitants, Common Intention and Contributions (again)”;Community of Property – A Regime for England and Wales: Interim Report”;  “Land Law.”

(The fact that Elizabeth Cooke et al have examined the ‘nature of title’ underlines the point already made, and elsewhere in this paper, that this is the pivotal aspect and that success here will assure one side or the other of victory).

The actual study for the ‘Living Together Campaign’ was undertaken by Exeter University between Jan and Sept 2006. They looked into behavioral attitudes by cohabitants and former cohabitants. The results were not what the reformers had been seeking. The public’s common sense attitude over marriage versus cohabiting (and property) was not radically different from 20 or 30 years ago and only in places did the responses live up to the reformed aspirations.

Left: Elizabeth Cooke Professor, Reading Uni., became Law Commissioner in July 2008. She has responsibility for property, family and Trust law.

Among her publications are:

Land Law’ (Oxford, Oxford University Press, 2006). ‘Community of Property: a regime for England and Wales’ (Nuffield Foundation, 2006): research report co-authored with A Barlow and T Callus). “Community of Property – A Study for England and Wales” by A. Barlow, T Callus and E Cooke [2003]. See also http://www.lawcom.gov.uk/property.htm.

Look Behind the Words

The cohabiting reform initiative was marketed to newspaper Editors in terms of;

  • ‘Proposals will give the same protection to couples who live together as married couples’,
  • “Plans to give cohabiting couples similar legal rights to married people if they split up”, and
  • “Reforms giving the same rights to cohabitees as married couples.” [2]

No one mentioned that in divorce only one sex has rights and remedies and only one sex inherits the bulk of the family assets.

No one mentioned that the proposed ‘rights’ would apply to only women enjoying the spoils of separation and that men were to be disbarred.

Same protection ?  Same rights ? Equality ? What man in his right mind would want any part of the proposed ?

Is this what cohabiting men want – to lose their assets to a women they have known informally or transiently, or intermittently for only a few years ? Do cohabiting men want their goods and assets ‘legally’ confiscated leaving them too destitute to start their next relationship ?

There is no truth in the claim that the plans will protect cohabitees. It will merely legitimate carpet-bagging – personal property will simply be Hoover-ed up. 

The proposed Cohabiting Act would approach the situation not in the spirit of addressing equality of tights between the owners of property but one where asset transfer is mandated;

“ . . . but [a cohabiting woman] without a claim on the family home, the mother, who is usually the children’s main carer, becomes homeless. If we are serious about our pledge to end child poverty in this country in the next 10 years, the Bill will have a huge part to play.” – see Hansard March 25th 2009, and Hansard HC 11 October 2006, col 129WH.

What a ridiculous and deceitful statement to make. After the drama-documentary ‘Cathy Come Home’ (1966), legislation was passed to guarantee women with children local council accommodation – legislation that has been built on successively. So the idea that mother and child would “becomes homeless” is fatuous.

In 2002, when the idea of cohabiting reform was first mooted, the prospect of ‘joint gain’ was held out as an enticer. The idea then was that both parties could be net gainers from property settlements when cohabiting couple split up. [1]

If homosexuals are entitled to the inheritance rights of married couples, clearly, unmarried heterosexual [ie cohabiting] couples should have them also.

But who defines the unmarried couples? They must themselves, presumably, in the same way as homosexuals, by having a registered relationship. But maybe the reason why they are not married is that it’s against their principles to allow the state to “recognise” their relationship.

By 2006 that idea’s universality was dead. The only immediate gainer was the homosexual lobby that gained demi-marriage status and the Law Commission which wanted to see – in any given scenario – that preferential treatment was given to the female cohabitee.

Perhaps this was due to a trebling between 1979 and 2002 of the proportion of unmarried women who cohabited with a partner.

Perhaps the fear was that the trend would continue and if it did, the state would run out of resources to provide housing for what could unkindly be described as feral, or semi-nomadic, demi-family units in a newly created demi-monde saturated by  demimondaines.

And yet how similar is the Blair Legacy  to France “gilded age“.(1850 – 1860), a culture of gamblers, get rich quick, profiteers, show-off celelrities, and demimondaines who held centre stage (see Guerard, 1959; Richardson, 1971).

As the law now stands cohabite women would have no legal to claim, in their own right, on the family home although, of course, the children of the union would have such a claim. As Ruth Deech, a former Law Commission employee points out:

“. . . the 1989 Children Act already provides that a parent of a child may apply to court for the other parent to support the child and the carer parent by property or maintenance.”

And there are other key pieces of legislation, namely the “Inheritance (Provision for Family and Dependents) Act 1975.” Under this Act both mother and children would be provide for by the man’s estate if he died. Application can be made by ‘any person’ regardless of age who is legally deemed ‘to be a dependent at the time of the testators’ death’. Yet reformers prefer to keep the public ignorant of these pre-existing safeguards.

Unless she plans to fall out with the children or disinherit them in some way the present legislative arrangement benefits all – it guarantees children a stable future in the immediate term and their mother simply tags along nurturing them while keeping the burden of state benefits to a minimum.

Why would a mother is such a position want absolute ownership (title) when she already has universal benefit accruing from the estate ?

Numerous pro-cohabiting blogs and academic papers are available on the internet but few give a critical analysis of what cohabiting entails in the long run; few carry official ONS statistics; few explain the cost to the tax-payer; and few explain why it has not been the system of choice for more than 6,000 years in the advanced world. The fact that it can still be found in relatively ‘backward’ societies should tell is that we need to avoid it. (For more background see https://cohabitationlaw.wordpress.com/ and http://robertwhiston.wordpress.com/2006/10/01/13/ also “Garbage Generation” by Amneus and ‘Sexual Suicie’ by Geooprge Gilder).

Collision Course

There is no comfortable anchorage or safe harbour when the powerful forces of social engineering devise a collision between personal relationships, property law and the freedom of choice.

Reformers have tried to round this Cape Horne before and their attempts have so far always foundered on the immovable rocks of Land Law and the common sense of the people.

For eight years prior to the 2002 initative the fine legal minds of the Law Commission, we are told, have wrestled to create meaningful laws over the division of a deceased person’s estates not only of homosexuals but for the three million heterosexuals in Britain who reputedly cohabit. If the question is that problematical can we afford to get the reform wrong ? 

Is Cohabiting Wrong ?

The short answer is ‘No’. But if you are asking, philosophically, should Society be against cohabiting or wholly in favour of it, then the answer has to be that it must be against it.

The reason for this apparent contradiction is simple. It is easier for an ‘intolerant society’ (the sort we are told we now live in today) to take no notice and chose to ignore cohabiting than for a society wedded  to Authoritarian Liberalism to permit any deviation from its prescriptive form of cohabiting.

It follows that while many people support marriage and are not in favour of cohabiting they also realise that handled sensibly cohabiting can be a ‘trial marriage’ and lead on to successful and enduring marriages.

Managing Decline

The problem posed for management of the state, be it benign or authoritarian, is that in the final analysis the books have to balance. Broadly speaking, this can be done with a degree of certainty when you have marriage as the principal lifestyle choice. ‘Singletons’ by contrast have not settled down, have relatively lower income jobs, and have not reached the zenith of their careers and single mothers are the most unlikely to be paying income tax or NIC contributions at a level that off-sets the costs of their welfare benefits. Singletons generally, because they have made no commitment and thus no special ties are more likely to emigrate. Economic migrants are usually men and the cumulative effect might be to leave too many females chasing too few eligible men.

The Pursuit of Happiness

At its essence, cohabiting is the expression of the free will we are all born with – some may not approve of cohabiting but in a western democratic society it is seen as a God given right to lead your life as you chose, not as a government department tells you to live it.

Having the choice to marry or to cohabit enables a citizen to choose to be constricted by marriage vows and the public commitment to one woman, or to free-wheel through life until the right person and circumstances coalesce. The liberal wing of politics wants to convert free choice cohabiting into common law marriage – something that has not been recognised in law since 1753.

What reformers get wrong is the public/private balance; marriage commitments bring not just responsibilities but obligations – cohabitation does not. Yet it is the state that depends for its survival on the married man, not the free-wheeling cohabitee who has demonstrated no investment in society and who cannot yet be relied upon to do so in the years ahead.

This failure to understand the dynamics lies at the heart of why marriage rates are falling and why divorce and custody laws are in such a mess. Reforming cohabitation rules will only aggravate that situation.

Liberal Suicide

Carey Roberts, an American blogger, describes what used to be called ‘the dead hand of the state’ to depict the effect nationalisation (state ownership) had on British industry. [2]

In April 2009 Roberts explains how “Liberals” once the champions of women have become their predators of women by ‘gleefully playing on their fears and psychological vulnerabilities.’  Carey Roberts limits himself to domestic violence but it is really a funding issue and arises in every sector where activists and reformers are in action.

There is little in our private lives that is “off limits” to the state. Our mundane daily lives, once our own concern, are now the state’s concern.

We have government machinery that is forever intruding into our private affairs and seeking new areas to control and new ways to control us.

Land Grab

As one of the few tradable commodities that cannot be multiplied or increased, land takes on a uniqueness in everyone’s lives. Reforming legislators have an instinct embedded in their DNA to repeat the deeds of the swashbuckling, land-grabbing Norman barons, who first destroyed and then re-defined land law in Britain.

For both sets of ‘driven’ souls there is no moral concept that can withstand their righteous zeal. They are there to divide up the spoils and the division will be purely on their terms.

Lack of Competency

It is surprising, if not worrying, to realise from the meeting with MPs on March 31st 2009, that no one in the Law Comm. is aware of the Social Statistics, the number of broken homes, what is the number of households that are already ‘dependent’ on welfare payments or other subsidies etc.

In any other walk of life it might be considered reckless to not look at the cost implications and the collateral damage.

Reforming cohabiting law may be an appealing legal exercise and arguably well overdue, but arguably if we don’t know the size of a problem now and the size of it in the future, is it not best to leave well alone until we do ?

Recession  

Now, when the nation is in the grip of a global economic downturn, is not the time to promote cohabiting. Cohabiting is a luxury best afforded by a buoyant economy. Only an undamaged society can sustain it for any given period because of its cost and resource implications.

It may come as a surprise to many tax-payers that a Whitehall Dept is funding a campaign promoting cohabitation and is aiming to make the public more aware of cohabiting – particularly so when in the USA only a handful of states remain which today recognise cohabitation (see Cohabiting in the USA blog hyperlink).

Until the Law Comm. can quantify with some degree of accuracy how expensive such a reform will be, the collateral damage and the size of numbers involved – which will present them with a problem because they apparently do not know – then no steps should be undertaken to advance the cause.

It has yet to be ascertained why the Australian cohabiting experience was preferred more by the speakers than the New Zealand option and whether the claim that the Australian cohabiting experience was “working fine” is true.

Socio-Economic Impact

The last analysis of divorce by socio-economic class was in 1984 (ONS, J. Haskey). It showed that the lower orders, i.e. manual workers and unskilled but especially the Armed Services, had the highest divorce rates. Is this still true today ?

If so, is it likely that the highest rate of transient relationships will be among the lower orders (as at present) and any reforms will only add to their general deprivation and accentuate their economically deprived situation (for more detail see http://robertwhiston.wordpress.com/2006/10/01/13/).

At the lower echelons of the social pecking order we see how government has been preparing since before 2006 to enforce registration by both parents on all birth certificates. [3] (See below).

No one would argue with that general ambition, and in fact it used to be the father’s obligation to register his child’s birth with the authorities. However, since 1989, he is no longer his child’s ‘legal guardian’ and so like in many others ways fathers have been made to feel superfluous.

Added to this is the butterfly pattern of sexual partners among the young and knowing exactly who is the father. Paternity becomes more problematical than a middle class minister cares to admit.

Look what can happen when a couple is not bound by marriage commitments:

‘I planned my pregnancy with a long term partner who then left me 3/4 of the way through. I made friends with his mate who offered to stand by me for moral support only to put his name on the birth certificate in an effort to secure a relationship with me. Now, I am left with him named as my child’s father when he is not and unable to take him off. Furthermore, I cannot claim from the CSA as it would be fraudulent. I can’t even name the real dad as it has been several years since I saw him and then it is the case of proving he is the REAL father on top of everything else’. – Daily Mail http://www.dailymail.co.uk/news/article-397454/Plan-force-mothers-fathers-birth-certificates.html.

How can the law be expected to cope with this level of dysfunctionality ?  Indeed, why should it have to ? The permutations are so diverse as to require any legislation to be so broad it runs the risk of becoming punitive in the same way that we now realise that anti-terrorism laws are far too broad.

Only divorced fathers who have had years of dealing with the ineptitude of a blundering CSA bureaucracy know how unenviable this guy’s position now is (See MOD reference in ‘Cohabitee compensation’ below).

Putting Society First ?

The Department for Work and Pensions (DWP) revealed that ‘around 45,000 of the 640,000 babies born each year are only registered as having one parent’, i.e. all born to unmarried parents or single women (and has to remind the press that the names of both the father and the mother’s are automatically entered when the couple is married).

Promoting both parents to register a birth might, one would suppose be good news, but evidently the compulsory nature of the new system angered many Labour MPs, who somehow saw it as ‘an attack’ on single mothers.

But who are the single parents that Labour MPs are getting so upset about ? Just over half (55%) have been married and are now divorced – the component of separated or widowed make up about 10% of this subset. Most of the other 45% were cohabiting when their children were born.

Seventy-four per cent are over the age of 30 and only 12% are under 25, so we are not talking about teen pregnancy (which rise and fall on an annual basis). Supporters of this lifestyle e.g. Polly Toynbee, have to admit that it is not a permanent state with, on average, people staying as single parents for only five and a half years ( The Guardian,  April 17, 2007).

After 40 years of decrying the need for fathers, ministerial press releases now state that having both parents’ names on a birth certificate regardless of marital status would certainly help to positively identify an absent parent and give a sense of identify and stability to the child. But should we be concerning ourselves and drafting legislation for only 7% of all births (i.e. the 45,000) ?

The nightmare for government – and potential fathers – is that in 2004 only 66% of the 7.4 million families and 13.1 million dependent children lived a married couple family.[4] The problem is not the married couple but with the remaining 33%.

The number of dependent children who lived in a lone-parent household (termed SMH or single mother households in the US) rose from 1 in 14 in 1972, to 1 in 4 in 2004. More children will have difficulty seeing their own fathers and more children will encounter substitute fathers of varying quality for varying lengths of time.

In 1996 single mothers numbered 1.6 million, by 2004 they numbered 2.8 million [5] a growth of more than 100,000 pa.

The upside of registration changes is that it will make child support payments (CSA) easier to enforce for government. The irony is that officially it is said to signal “official recognition of the importance of fathers in children’s lives.”

This recognition of the importance of fathers in children’s lives is absent in divorce and custody issues, so one wonders whether Whitehall is being entirely honest or being economical with the truth ?

End of Part 1


[1] “The Living Together Campaign –  An investigation of its impact on legally aware cohabitants”, This short study was carried out between January and September 2006 was funded by the Department for Constitutional Affairs. http://law.exeter.ac.uk/research/Contact  and http://news.bbc.co.uk/1/hi/business/7563407.stm

[3] “And the cohabitees shall inherit the earth” ,  By Kevin Myers, Daily Telegraph, 8th  Dec 2002. http://www.telegraph.co.uk/comment/personal-view/3585031/And-the-cohabitees-shall-inherit-the-earth.html

[4] ‘Abuse excuse: how liberalism keeps women in their place’. http://www.renewamerica.us/columns/roberts/090414 

[5] Plan to force mothers to name fathers on birth certificates By James Chapman, Daily Mail, 24 July 2006

[6]  Items 19 to 22 taken from Office for National Statistics; ‘Focus on Families’; 7th  July 2005.

[7]  ONS, Population Trends, No 91 (Spring 1998). And SLM and dependant children by marital status ons 2004 http://www.statistics.gov.uk/downloads/theme_compendia/fog2004/gender.pdf