Marriage and cohabitation: protecting people from systemic economic inequality

Trudging my lockdown walk route for the fiftieth time, the monotony was relieved by witnessing the intense outrage of a small child whose prized stick had been forcibly removed by an even smaller sibling. Which inspired me to finally pin down my thoughts on proprietorship and divorce, obviously.

In normal, day to day life, we expect to retain possession of the things we own.  But when people are married the law intervenes to disrupt the normally applicable laws of property.  That’s a pretty controversial thing to do, when you think about it.  The law disapplies the normal rules of “what’s mine is mine”.  No wonder the sense of justice and injustice is so deeply felt in people who are dividing their property when they separate.

The broad aim of the Scottish regime on financial provision on divorce is to standardise the net wealth generated by parties during the marriage relationship without comparing the economic value of different types of contributions. In my experience, for many separating couples, particularly those with children, the purpose of these provisions is to balance the systemic economic inequality between husband and wife.  It’s an imperfect attempt to equalise the economic consequences of marriage for the two of them. 

If I’m right that one of the main purposes of the law regulating the end of a marriage is to protect the more financially vulnerable spouse then what consequences does that have for law reform?

I think it has three consequences:

  • If we proceed on the assumption that the legal protections of marriage are desirable for reasons of justice then it should be public policy to make marriage and civil partnership more accessible: it should be socially acceptable and legally encouraged to access these legal constructs. That should be a separate exercise from the expense and fanfare associated with our current law and practice of weddings.

  • Any reform of the process of divorce should prioritise the protective function of the current regime for an economically disadvantaged spouse.

  • The law should refocus on considerations of welfare and inequality when regulating the proprietorial consequences of enduring adult relationships beyond marriage.

This last point is effectively a call for greater regulation of the economic consequences of cohabitation, bearing in mind the increasing number of enduring adult relationships outside marriage.  The current law on cohabitation has been in force since 2006 and I find myself asking whether people in modern relationships which aren’t a marriage or civil partnership should be financially disadvantaged for reasons of their legal status.

That is a particularly acute concern because, in my experience, many people in such relationships wrongly believe that on separation or the death of their partner they would be treated as if they had been married. Economically disadvantaged people discover at a moment of heightened vulnerability that there they were mistaken about the nature of the safety net below them.  That can’t be right.

There is broad social consensus that it is right to harmonise the net wealth generated by parties during the marriage relationship, whether or not we do it well. There is therefore logical justification for doing the same thing for people in an enduring relationship which has not been formalised, even though that does mean disrupting disrupt the normal law of property. 

Whether you agree or disagree with me, you should tell it to the Scottish Law Commission which is currently consulting on the subject.  You’ll find the consultation here and you have until 30 June 2020 to respond.