Opinion & Commentary
The importance of staying single legally
The NSW Law Reform Commission proposes that, when unmarried couples who live together break up, their property settlement should be subject to exactly the same rules as when a married couple gets divorced. This might sound “fair”, but if we stop to think it through we shall soon see just how unreasonable and unnecessary a proposal it is.
So-called ‘de facto’ couples are already treated in the same way as married couples as regards child custody arrangements. This is entirely appropriate, for arrangements affecting children should be made in the best interests of the children, irrespective of whether their parents are married or not.
There is also already legislation that covers division of existing property and assets in the dissolution of de facto unions. Now, if the Commission has its way, ‘future needs’ will also be taken into account. This may be justified when children are involved, but when there are none, there is absolutely no reason why the law or anyone else should decide who is entitled to what.
Writing in the SMH (De facto to equal married in the bust-up property stakes, 24/6/02), Adele Horin described the existing NSW property law as “the last bastion of discrimination against de facto couples.” But to say that the current law ‘discriminates against’ de facto couples ignores the fact that they have chosen not to marry. We already have a way to offer security to both partners in a union. Its called marriage.
If we give men different rights than women, or whites different rights than blacks, then this is discriminating against people according to their ascribed characteristics, and it is wrong. But if we allow people to enter into a contract with another person voluntarily, we must also allow them to accept the consequences of that decision. This is not discrimination, it is choice.
What Ms Horin and the NSW Law Reform Commissioners fail to understand is that some of us living with our partners are quite happy as things are. We do not want the rights (and duties) that come with being married, which is why we have chosen not to marry, and we do not want them thrust upon us.
Once you remove the legal distinction between married and unmarried couples, this freedom to choose is taken away. Effectively, the State ends up telling every couple that they will be married whether they like it or not. Is this really what Ms Horin’s feminist sisters have been fighting to achieve all these years?
Unmarried relationships between cohabiting couples vary widely, but as far as the law is concerned, there is only one question that really matters – do they have children or not? Couples with children should be treated in the same way as married couples, for children create implicit commitments and these should be recognized by the courts. Unmarried couples without children share a bed and enjoy the companionship, convenience and economy of living together, but they have chosen not to get married because they do not want the courts to decide the terms of their relationship or how it should end.
Adults are entitled to live in consensual non-marital relationships without interference from the state. Of course people in long-term de facto relationships may find themselves in an unfortunate situation if the relationship ends (and de facto relationships do end more quickly and more frequently than marriages). This may be unfair if one partner is financially insecure because of the sacrifices they have made. But there is a solution to this.
The solution is: Don’t give up your job and your financial security to move in and clean house for someone if they are not willing to marry you. Don’t allow someone to give up their job and move in and clean house for you if you are not willing to marry them. If you want the security of financial co-dependency, get married.
Equating cohabitation with marriage is yet another encroachment on freedom. When two adults without children decide to live together without being married, for whatever reason, the law should not force them to take on the responsibilities of a marriage. This creates more work for lawyers, more hassles for unmarried couples, and makes marriage – undeniably the best setting for raising children – seem like an antiquated option.
To Top
About the Author:
Jennifer Buckingham is a Policy Analyst at The Centre for Independent Studies.
Peter Saunders is Director of social policy research at The Centre for Independent Studies.
