The rise in cohabitation before, or as an alternative to, marriage can be seen across the Western world. The number of unmarried couples rose from 1.4 million in 1996 to 2.3 million in 2006. 13% of Finland’s population cohabits. This social change has not been reflected in the law. When married couples divorce, the law intervenes to separate their property and assets in a way that is deemed to be fair (or as laid down in a pre-nuptial agreement). In some countries the court will investigate what is fair in the circumstances of the specific individuals, taking into account the two parties’ needs and contributions to the family (as in England and Wales). There is no similar provision for cohabiting couples. There have been cases where couples do not put their home in both of their names (for example if one person has worked and paid the mortgage whilst the other has raised the family and cared for the home) and where one party has consequently been left worse off upon separation. This is not a debate about giving money to look after children: almost all states have laws to oblige parents to provide for their children financially after separation. It is about whether long-term relationships should result in a division of property similar to that following marriage. The UK Law Commission suggested such a policy in 2007 but it stalled following strong opposition from religious groups.
 E. Dugan “Number of unmarried couples rises by 65%” – The Independent 05.10.2007 (accessed on 18.08.2011) http://www.independent.co.uk/news/uk/this-britain/number-of-unmarried-couples-rises-by-65-396039.html
 Parliamentary elections 2003 – Statistics Finland http://www.stat.fi/til/evaa/2003/evaa_2003_2004-05-31_kat_002_en.html
The status quo discourages interdependence: the absence of property rights under the status quo encourages unmarried couples to act as individuals, protecting their own financial interests, rather than supporting each other. In UK law, “their relationship with one another is not recognised as having any legal standing, and they have no special status in the eyes of the English legal system” Individuals are usually more able to pursue their own ambitions when they have the support of another. For example, financial support and security makes it easier to take risks which may be economically beneficial, such as setting up a new business, or undergoing further education to improve employment prospects.
The absence of property rights does not prevent interdependence: the law does not prevent individuals supporting each other or taking risks. However, it requires that couples discuss such plans properly with each other and decide how they wish to structure their own relationships. Expecting all couples, regardless of their circumstances, to support each other financially is unrealistic. Furthermore, it is possible that at the margin some couples may not cohabit in order to avoid having to share their property. These couples will have even less support.
Fairness requires that cohabiting couples share their property on separation: when couples have lived together for a long period (such as five years or more) they will have gained benefits at each other’s expense but also suffered disadvantages for the other’s benefit. If one partner gives up a career to raise children or support the other in their career, they are seriously disadvantaged upon separation. Where the other partner has gained as a result of this sacrifice, they should compensate the former, so that the two parties can move towards independence in equal positions. Parties may choose not to marry, but this should not have to cause such financial harm to one partner.
Property rights are not fair: it is up to individuals to protect themselves in the sphere of relationships. Married couples have entered into a state-endorsed relationship which provides advantages (both financially in terms of taxes and inheritance, and through recognition and validation). It is reasonable for the state to require something in return: namely, that the parties are treated fairly, should that marriage end. Moreover, married couples are forced to share their property because they have chosen to commit themselves to each other. When people get married they know what they are signing up to and can therefore be taken to consent.
Property rights for unmarried couples undermine marriage as an institution, harming society. The societal shift away from marriage is harmful. Marriages tend to be more stable than cohabitation because of the greater level of commitment involved: the mutual support of a marriage is beneficial for individuals and can create a more secure environment for raising children. Because of the higher exit costs (divorce is difficult and time-consuming), married couples are more likely to resolve their problems than cohabiting couples who can walk away more easily. Giving legal rights to cohabiting couples endorses more diverse relationships, suggesting that marriage is less important. This is harmful as it is likely in the long term to further reduce the number of marriages, leading to fewer stable relationships.
Marriage is no longer the only type of serious long-term relationship and the law should reflect this: the absence of property rights on separation for cohabiting couples sends a message to society that cohabitation is a less meaningful relationship than marriage. Marriage has strong religious connotations and was historically a vehicle for the oppression of women. It is consequently unsurprising that some couples may not wish to enter into the institution of marriage. These couples can still have long-term relationships which are just as stable as marriage. Legal rights would help to validate such relationships and recognise the reality of diverse family structures within society. Furthermore, the status quo can be seen to be coercive in that individuals, who may not want to get married, are forced to do so if they wish to have legal rights.
The law should encourage people to plan adequately: individual people are different and one size does not fit all. If the state plans how your property should be owned, this fails to provide for each individual’s specific lifestyle and circumstances. An increasing number of couples enter cohabitation contracts (where they agree how to split property if they separate) and this should be encouraged instead of automatic rights.
That is why some countries (like the US) offer cohabitation agreements, which is s a written agreement that governs the rights and obligations of two people who are in a relationship and live together in a shared residence.
It is unreasonable for the law to expect unmarried couples to plan for when they separate: people within relationships tend to be optimistic about the prospects of their relationships. They do not expect to split up, and most choose cohabitation to see if the relationship is going to work out at all. Making agreements about property at this stage can seem unromantic and unnecessary. USA Today writes: “For young couples who have never been married, cohabiting may seem like a hassle-free way of testing a relationship before tying the knot. And for those who already have been through a divorce, who have children or other significant assets, cohabiting may seem like a way to avoid costly legal entanglements if the relationship doesn't work out.”
When couples choose not to get married, perhaps because one party is not willing to do so, this does not indicate the same commitment to each other. Where there are considerable disparities in income or wealth couples may have no desire to divide their assets and the choice not to get married may reflect this. Those who desire financial protection can choose to marry but the state should not intervene when couples do not make this choice, beyond ensuring that provision is made for children. Such intervention undermines the autonomy of individuals within cohabiting couples because it suggests that they cannot make these decisions competently for themselves.
Creating legal provisions for property sharing after the end of a cohabitating relationship in no way limits the autonomy of individuals. If anything, the status quo does that. It forces couples to either get married (which they may not want to do) or to sign a cohabitation agreement before the beginning of a relationship (which is a preposterous idea to most couples). By creating a legal way to handle disputes after the end of a cohabitating relationship, the state would offer a middle road between the extremes of marriage and signing an unromantic contract early on.
The status quo discourages care for children and the elderly: a further consequence of the perceived need for independence is that individuals are less able to reduce their working hours in order to care for young children or elderly relatives, in case they suffer significantly as a result, for example if their relationship ends. Children who see more of their parents often develop stronger relationships with their parents which are valuable in later life when they need advice or support. In addition, studies show that it is beneficial for their emotional development. Elderly people, on the other hand, often feel particularly vulnerable and isolated and care from relatives plays an important role in maintaining their inclusion within society.
Care can be provided without property rights: as with interdependence, the status quo does not prevent individuals reducing their income to care for others. It merely requires that couples discuss their plans and make provisions to deal with the need to care for children or elderly relatives.
Dugan, E. “Number of unmarried couples rises by 65%” – The Independent 05.10.2007 (accessed on 18.08.2011) http://www.independent.co.uk/news/uk/this-britain/number-of-unmarried-couples-rises-by-65-396039.html
Jayson, S. “When unmarried couples split, complications follow.” USA Today. May 12, 2011. http://yourlife.usatoday.com/sex-relationships/dating/story/2011/04/When....
Law Commission. “Cohabitation”. Accessed August 22, 2011. http://www.justice.gov.uk/lawcommission/areas/cohabitation.htm.
Law Depot. “Cohabitation Agreement Details.” Accessed August 22, 2011. http://www.lawdepot.com/contracts/cohabitation-agreement/?ldcn=cohab.
Law on the Web. “Cohabitation (Living Together Unmarried)”. Accessed August 22, 2011. http://www.lawontheweb.co.uk/Family_Law/Cohabitation.
Legal Zone. “The Division of Property on Divorce.” Accessed August 22, 2011. http://www.legal-zone.co.uk/div_property.
Parliamentary elections 2003 – Statistics Finland http://www.stat.fi/til/evaa/2003/evaa_2003_2004-05-31_kat_002_en.html.