Cohabitation is no alternative to divorce

When the Standing Committee on Social Affairs of the House of Representatives invited the public to air its views on cohabitation, it may have rolled open the proverbial can of worms. Why cohabitation and not divorce was the almost palpable reaction and, indeed, much of the public's discussion on this issue has been to assimilate what should be a debate on cohabitation to a debate on a de facto marriage.

I must disagree. Cohabitation is not marriage and cannot certainly be an alternative to divorce. It is true that couples may live together out of necessity because one or both cannot remarry. Yet, it is equally true that couples do choose to live together not only because they cannot marry but despite the fact they can. Whatever the underlying reason, these unions do cause consequences, social and financial, on society.

Undeniably, a law which regulates cohabitation will imbue this state of fact with legitimacy. One would expect a radical shift in legal and judicial thinking in the approach to cohabitees. Would it still be valid to order that children of a separated couple would not be "exposed to the presence of a third party with whom the parent is in a relationship" once cohabitation will be legally recognised?

A primary focus should remain the preservation of marriage as an institution. This is precisely why cohabitation is not, and cannot be, considered to be an alternative to divorce. The state and society have an obligation to safeguard marriage as an institution; a stable marriage is the cornerstone of a stable society and marital breakdown places an enormous financial and social burden on society.

It is not the aim of any legislator to weaken marriage as an institution or to package cohabitation as a valid alternative to marriage. If we agree that the breakdown of a marriage will produce a ripple effect through society, when marriage is based on a lifelong commitment, how much more of a ripple effect would be a series of unions based on lesser commitments?

What rights and duties should cohabitation give rise to without thereby creating a pseudo-marriage?

If we depart from the premise that marriage is a public commitment by a couple to enter into a permanent union we immediately realise that cohabitation has no such premise or enduring aim. Consequently, it cannot be assessed on the same level. Yet, marriage creates a partnership, both personal and economic, between husband and wife, from which the rights to maintenance (support), property, home and inheritance flow logically.

Should a cohabitee of five years be entitled to the same pension rights as a wife of 25 years, based on a less permanent union? Again, the surviving spouse has a right to use and habitation to the matrimonial home. If this spouse were to enter into a relationship and cohabit, would the surviving partner deflect the rights of the heirs to that property? What of rights of maintenance and pension acquired by deed of separation? Are these to be affected in favour of a cohabitee? Are we to confront the cohabitee with the spouse?

The focus of the legislator should be on applying equity and fairness in order to redress the inequality cohabitation may have brought on one partner to the benefit of the other. This underpins UK proposals on cohabitation. It is interesting that the Law Commission in the UK has not recommended registration for heterosexual unions (although civil partnerships between homosexual couples are to be registered) arguing that a weaker partner who would not be able to insist on registration will be denied the protection of the law. The commission further points out that registration would bring about a new status of "registered cohabitant" and that "this would jeopardise the support of many who have expressed support for reform but who are concerned to protect the institution of marriage".

One should therefore consider: a) whether registration is necessary; b) the minimum duration required for eligibility; c) capacity; d) rights and duties; e) fault; f) limitation of actions; g)Jurisdiction of the Family Court; h) validity and effect of cohabitation contracts and i) recognition of foreign cohabitation agreements.

Focusing on redressing the inequality will not create an alternative to marriage but will redress social and economic needs. For example, if one of the partners has opted out of work and a career to care for the children of the union, then the other partner who may have benefited should be obliged to equalise the financial disadvantage existing on termination. Maintenance in several legal systems is translated into a capital sum paid over a required period rather than an obligation to maintain the other partner per se as the expectancy is that both will work and be financially independent. Costs would include providing for a home. Tenancy rights can also be considered saving third party rights.

Children are fully regulated in our legal system. Children born out of marriage have the same rights against their parents as those born in wedlock and are already within the purview of the Family Court.

Such a law cannot be retroactive and must be drafted prudently. As stated, it is not only what is to be included that is important but what is not.

Dr Schembri Orland specialises in matrimonial and family law