Monday, October 27, 2014


Dearly beloved, we are gathered together here in the sight of God, and in the face of this Congregation, to join together this man and this woman in holy Matrimony; which is an honourable estate, instituted of God in the time of man's innocency, signifying unto us the mystical union that is betwixt Christ and his Church.

I went to a Book of Common Prayer service last weekend, and when I wasn't soothing fidgeting children, I felt comforted by the familiarity of the service, and moved by the delicate grandeur of the words. What there is of my faith is rooted in tradition and association: we went to church every Sunday when I was small, and whenever I go to communion now I flinch if a word is out of place, or even if the vicar lays his stresses differently. I'm out of the habit of sermons though, and while this one got slightly tangled in a digression about Paul's first letter to the Corinthians I flicked ahead to the Form of Solemnization of Matrimony.
Obviously, the main memories triggered there are those of my own wedding (although we did cheat slightly by using the 1925 version that leaves out all those brute beasts and their carnal fornications), but it struck me how apt the title is. A marriage is (or should be) solemn, as well as joyful. Getting married is a hell of a big committment if done properly. Two people are joined, with neither submitting to the other, but both becoming something greater. Something as serious as that deserves its attendant ceremonies. But the ceremonies can of course be stripped away, and the entire service reduced to its core: two people agreeing to become one partnership, making that committment before witnesses, and evidencing it by signing a contract.
Get past Archbishop Cranmer's text, therefore, and marriage is a very straightforward thing: a legal contract granting certain rights on the parties to it, that they would not otherwise have. Contract law is the cornerstone of the English legal system, and freedom of contract is at its heart (and something that divides us from Napoleonic Code countries - here everything that is not expressly forbidden is allowed, there it sometimes seems that the opposite is true). It is odd, then, to see an English judge strike at the heart of the philosophy that underpins his profession
It is not the role of the state, in my humble opinion, to go round telling people how they should form their relationships... I do not support two classes of adjudication depending on whether there happens to be a marriage,’ he said. ‘I support the extension of the existing system of judicial equitable distribution to the unmarried, warts and all.’
As it happens, I more or less agree with Mr Justice Mostyn's first sentence. It isn't for the state to tell people how they should live their lives. If people want to get married, the state should enable it; if they don't, then the state should not force them. That's why I support marriage for same sex couples. It's the second part that I have an issue with. Because a key role of the state (perhaps the key role) is to ensure that the rule of law is followed.
If an unmarried couple split up, neither party has the right to the assets of the other, any more than if flatmates move out. This might seem like a slight against unmaried cohabitation. It isn't though, or at least it isn't meant to be. It's about choices. There's a related piece in the Telegraph that might help unpack this a bit.
For five years now I’ve been living in unwedded bliss (well, on good days) with my partner, and currently we have no plans to change the status quo... When cohabitees separate, there is no guarantee that capital and income will be divided equally, and this has proven to be financially disastrous for some – especially in the case of women who are long-term, unmarried partners and without any property in their name.
We sorely need new legislation to give equal status to cohabitees in the event of separation. Instead of turning marriage into a political issue and promoting the idea that marriage can save families, while cohabitees will destroy them, we should equalise them in law, thereby freeing the debate to focus on the really important issue of how to make relationships last, regardless of their status.
Let's ignore, for a minute, the difficulties of definition (at what point do you become a co-habitee, entitled to protection? When you first leave a toothbrush at hers? When you buy a house? When you have children?). The first question to ask is: if you are concerned about the extent of your entitlement to joint assets if your relationship breaks up, why don't you agree a formal contract dealing with it before the event? It wouldn't need to be public - just get it drawn up by lawyers (or do it yourself), signed and witnessed. Job done, rights protected. If it helps at all, there is a standard form version of this contract, that any local registrar can sort for you, for less than a lawyer would cost.

If a couple doesn't get married it's either because they don't want to, or because they want not to. Which is, obviously, entirely fine. Nothing to do with the state. But, because it's nothing to do with the state, there is no justification for the state to intervene at the end of the relationship to make sure everyone gets what they would have got had they been entitled to it. Mr Justice Mostyn is arguing that the state should enforce contracts that have, as a result of the deliberate choice of the parties, never been entered into. Without even considering morality or religion, that's a staggeringly bad idea.


Blogger Devil's Kitchen said...

Of course, in Scottish Law (unlike that in England and Wales), the concept of a Common Law spouse does exist—it is, IIRC, when two people have been co-habiting for more than two years.

In that case, the assets are considered to be joint, regardless of explicit contract.


9:15 am  
Blogger Tim J said...

Not any more I don't think - it was abolished in 2006. Although I will admit that I knew nothing whatsoever about it, and have just googled...

11:57 am  

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