In defence of liberty

According to yesterday’s papers, Sir James Munby – President of the Family Division of the High Court – believes the rights of unmarried couples,  particularly unmarried women who are “thrown on the scrapheap, at a time when, because of her age and because of the time she has been out of employment, there’s no way she can rebuild her career,” should be similar to those of married people:

One is aware, anecdotally, of these cases of cohabitation which have lasted 20, 30, 35 years and then breakdown, where there are children in the relationship and where the woman has made precisely the same career sacrifices, precisely the same financial sacrifices as many women do as a consequence of marriage…

At the end of that process, the children if they’re below the age of 18, are entitled to certain forms of financial relief but the woman in that case is entitled to nothing at all.

(Emphasis added.)

We now live in a world where, not just anecdotally, more women than men graduate from university, and gay and lesbian marriage is not only legal but positively prevalent. This suggests that passing personally invasive laws based on the conception of a nuclear family and gender stereotypes dating from the 1970s may not be an especially good idea.

For the sake of argument, though, let’s say such a law is enacted, and a trigger for enhanced cohabitation rights is set at ten years’ time. Take three couples:

(1) Alice and Bob, who meet during freshers’ week, move into a student flat the following month, and one of them is considering breaking up seven years after finishing university, aged 28. No child is involved;

(2) Amy and Bill, who meet aged 25, move in after six months, and one of them is considering breaking up aged 36. A child is involved; and

(3) Amanda and Beauregard, who meet aged 61, move in immediately and one of them is considering breaking up aged 71. Adult children are around from prior marriages but are not relevant.

Then two scenarios:

(1) B asks A (or A asks B) for his/her hand in marriage; one or the other accepts. Everyone’s on the same page, even if it turns out to be a bad idea in the long run. Marriage is a very well-understood cultural institution.

(2) Nobody has asked anyone else to get married, which for present purposes we shall call “unmarriage.” A cohabitation entitlement arises due to only the passage of time, effectively creating a marriage.

Why not marry? Each of the couples above presents a very different fact pattern due to their stages of life which are readily apparent; but the differences between the three are less than the potential for differences within each case, as the reasons to stay in a relationship without getting married are as varied as human character itself.

Suppose Alice, a career girl, likes and is attracted to Bob but finds him lazy and unambitious; should she be burdened, aged 28, with an obligation of support which would be triggered if she met someone new and sought greener pastures? Bill is almost convinced about Amy, but finds her family arrogant and horrible; should the law set what is effectively a deadline for Bill to choose to stay or leave? Amanda and Beauregard “take a break” for three months in year 7 but remain in the same house; does the clock re-set? What if, approaching the ten-year boundary, Amy thinks Bill has started drinking too much lately, and Bob realises he’s fancied Alice’s sister and has all along – would they be pressured to exit the relationship or incentivised to prolong it, and how might this alter their behaviour and the possible outcomes?** What if the new law deals not in hard numbers to determine whether enhanced rights arise, but rather in qualitative factors – meaning nobody really knows, legally, where they stand without first having a detailed chat with legal counsel? What if someone has just had enough, and wants to walk away?

And so on, ad infinitum.

It is impossible to poke specific holes in Sir James’ proposal, as (from the text I’ve been able to review) it is long on soundbite and short on specifics. For present purposes it suffices to note that there is a common thread: when people are unmarried, it is because one or both of them does or do not wish to be married. State regulation – and let’s be clear, what Sir James proposes is regulation – of unmarried couples would frustrate this ongoing voluntary, and ultimately mutual, intention.

I therefore question the wisdom of enacting such legislation. Even in relation to marriage, there are strong arguments to leave the terms of the relationship to private treaty. As put by Sam Bowman,

“the best system is the one that allows for that experimentation and accommodates diverse approaches to life. Getting the government out of the marriage business is one good way to foster diversity, give people control over their lives and end marriage inequality.”

Where marriage is heavily regulated, unmarriage is the state in which this experimentation takes place.

It is therefore important that freedom in this sphere be robustly defended. One way of doing this is to demand those who advocate enhanced cohabitation rights to provide specifics, so that the public might understand the breadth of freedom they propose to curtail. Another would be to remind those who tolerate long-term unmarried cohabitation that they are free to walk away without the least bit of stigma, and that they should not be surprised – nor will they be pitied – when things don’t work out and they are unable to avail themselves of marriage’s rights and remedies.

To sum up: imposing marriage-like obligations upon all relationships when one party or the other may not consent to their imposition is profoundly illiberal. If it’s marriage and associated rights that you want, get your counterpart to put a ring on it, or have the courage to walk away to find someone who will. As marriage is now available to all in the United Kingdom, the adverse position of the unmarried is attributable entirely to personal choice. It is wholly inappropriate for society to pay a price in liberty for the sake of a heartbroken unmarried person’s sense of ‘entitlement.’

**To a certain extent, this type of manipulation already occurs in the run-up to proceedings in the family courts system –  do we really want to encourage this with unmarried couples as well?