Sunday 15 December 2019

David Quinn: Cohabiting couples face a rude awakening when new legislation abolishes 'living in sin'

David Quinn

ARE you cohabiting? If so, the law will shortly be knocking at your door thanks to the upcoming Civil Partnership Bill. So far, what little debate there has been about this extremely significant piece of legislation has focussed almost entirely on what it will mean for gay and lesbian couples. Almost no attention whatsoever has been paid to how it is going to affect the country's 121,000 cohabiting couples.

The bill was at committee stage in the Dail this week. Once it becomes law in the coming months any cohabiting couple that has been together for three or more years, two years if they have children, will find themselves caught in a legal web not of their own making.

The bill will allow one partner to sue the other for maintenance and a property settlement in the event of a break-up.

Now, most people cohabit precisely to avoid legal entanglements of this sort. These days what 'living in sin' really means is living outside a legal framework. It's getting married that puts you inside a legal framework with its rights and obligations and protections.

What the Government is proposing is effectively the abolition of cohabitation as we have always known it. Why is it doing this? The cynical view is that family lawyers have cooked up another way to make money for themselves.

The less cynical view is that it is a response to the reality that there are now so many cohabiting couples in the country.

Back in 1996, there were only 31,000 cohabiting couples in Ireland but by 2006 this had jumped to 121,000 -- a truly stupendous increase in a short time. Ireland now has a higher rate of cohabitation than the US, and it's only somewhat behind Britain.

So, given the reality of cohabitation, shouldn't cohabiting couples be given some of the same rights and protections as married couples?

Actually, there are several arguments against what the Government is proposing. One is that it undermines marriage, another is that it is an attack on personal autonomy and choice. The first argument says that the more you provide legally protected alternatives to marriage, the more you undermine marriage. If people can obtain the protections of marriage by cohabiting, the incentive to marry is reduced.

Is this a bad thing? Emphatically yes, especially for children because marriage is much more stable than cohabitation. For example, the British Millennium Cohort Study shows that only 35pc of children born into a cohabiting union will live with both of their parents throughout their childhood, compared with 70pc of children born to married couples.

But even if you couldn't care less about marriage there is still the personal autonomy argument which is that people should be allowed to live together if that's what they want without being forced into a legal relationship after three years.

Of course, the Government can respond that people can opt out of having this legal relationship imposed on them by the new law if they want. But how many cohabiting couples will know they have to do this?

And why should they have to? Why should they have to go near a lawyer and pay the lawyer to draw up some kind of opt-out contract?

In any case, there is almost no demand for this new law as it relates to cohabitation. Practically no one, bar some family lawyers, has asked for it. One reason for this lack of demand is that most cohabiting couples end up getting married. That is, cohabitation isn't an alternative to marriage, it's a prelude. The rest usually break up in pretty short order.

In fact, another British study shows that only 3pc of cohabiting relationships last more than 10 years.

The final government argument in favour of this measure is actually more subtle and somewhat more compelling. It is that in some cohabiting relationships one person wants to get married and the other doesn't but they find it hard to leave the relationship because they have become financially dependent on their partner.

Therefore, it is argued, such individuals should be given the right to apply for maintenance and a property settlement in the event of a break-up.

LET'S concede this point then, because it's not a bad one. So is there a way to cater for it that respects both marriage and personal autonomy? I think there is.

I think the way to do it is to provide the protection this bill envisages but after seven years or so, not three.

It probably takes about this length of time for a condition of financial dependency to properly develop in a cohabiting relationship, but the fact that most cohabiting couples will have broken up or got married before then protects both marriage and personal autonomy.

Will the Government accept such an amendment? Not on your life because when it comes to this bill the Government is deaf, dumb and blind to all common sense.

Cohabiting couples are in for a rude awakening.

Irish Independent

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