Deborah Orr: Equal rights for co-habiting couples will strengthen marriage, not undermine it

It's divorce that's being tackled. You could end up in the divorce court without even being married

In recommending that some of the "financial remedies" conferred on married couples who split up should be extended to co-habiting couples who do the same, Stuart Bridge of the Law Commission is at pains to stress that he rejects the idea that such a move would "undermine marriage". He is right to do so, for all sorts of reasons.

First and foremost, as is so often the case in this particular long-running debate, the very idea is a tiny bit Alice-Through-the-Looking-Glass. The sanctity of marriage isn't under assault here. Instead, what is being tackled is the sanctity of divorce. You won't even have to get married any more in order to land yourself in the divorce court, bound by some of the rules and regulations you'd have committed yourself to in marriage.

The move, therefore, seeks to impose some of the responsibilities of marriage on all those irritating people who like to tell the throwbacks among us who are enspoused that "we don't need a piece of paper to prove our commitment to each other" and then find out that they couldn't prove it because it wasn't there. (Not to mention all those who wouldn't get married to a partner who would really have preferred it, or who just tried their best and couldn't make their relationship work). So, logic, of a kind, dictates that the more keen on "promoting marriage" you are, the more keen you should be on promoting marriage-in-all-but-name.

If this seems like a somewhat frivolous argument, then it is not. It is certainly no more frivolous than most other arguments "in favour" of marriage really are, since most of them are based on an entirely false premise. All those who point to marriage as some kind of magical panacea that automatically bestows "better life chances" on children, armed with impressive statistics as they may be, tend to miss the point.

The people most committed to "old-fashioned family values" tend to self-select as the people most likely to marry and to stay that way. It is not in the least some marvellous quality inherent in the state of matrimony that makes couples within it as much as five times less likely to part (as was implied in Iain Duncan Smith's recent plea for matrimony as a solution to social problems). It's simply that the sort of couple who tend to get married is the sort of couple that accepts that forming a family unit is always a lifetime commitment, and that a marriage confirms or ought to confirm that both parties understand this to be the case.

One's children remain one's children, and the person one has them with remains their other parent, whatever happens, and only death can change that. It is this basic yet profound understanding that does most to secure "better outcomes" for children, whether or not a marriage or other partnership itself endures. When people talk about "promoting" marriage, what they are really talking about is promoting the idea of such an acceptance, and the ordering of priorities that it entails. The notion that this can be achieved through the state, with "tax breaks for marriage" is laughably simple-minded.

So, too, is the idea that the Law Commission's proposed changes might persuade some couples who would otherwise have married (therefore somehow hugely increasing the probability of their children living happily ever after), that they no longer need to (somehow condemning their children to a kind of psychological drowning-at-birth).

All the Law Commission's changes really seek to do is to broaden access to what Baroness Hale of Richmond calls "compensation for relationship-generated disadvantage", and to reassert the rights of what the rest of us understand to be the "common-law spouse", even though such a category of person, legally speaking, went out with the Ark. Right and necessary in principle as I believe this to be, my heart still sinks at what it will sometimes mean in practice.

Bridge himself has made a commendably simple statement of what he hopes to achieve. "More and more families involve couples who are living together but who have not married," he says. "The law that currently applies to resolve property disputes between such couples on separation is unclear and complicated, and it can produce unfair outcomes. This causes serious hardship not only to cohabitants themselves, but also to their children."

Yet implicit here is the assumption that for couples who are married the law is clear, doesn't produce unfair outcomes, and does not cause serious hardship to anybody, or anybody's children. All this, since we read the papers and marvel at this or that piece of outrageous behaviour by this or that divorcing couple on an almost weekly basis, we know to be far from true.

The divorce disputes that we read about in the papers are usually those that attract attention because there are huge sums involved, so the hardship to any children is usually psychological rather than material. Yet, whether it is the young woman who has been married for a couple of years, has had no children, and still demands half of her sucker of an ex's fortune, or the loyal, dumped wife of decades who stands there as her husband argues that she was fit for nothing except bringing up the kids while he was off making a pile, the message is that the law doesn't work so terribly brilliantly even when you are married, if one or both of you is determined to behave extremely badly.

And all that argy-bargy happens even when there is plenty of money to go round. In the vast majority of break-ups, the reality is that both partners want to live in the manner to which they have become accustomed and neither of them can; that one partner has damaged job-prospects to look after the children and that the other doesn't have a ready sum that would be able to compensate her (or less usually him) for that in a clean-break settlement; and that even if the family home is sold, only one home big enough to contain the children is likely to be purchasable from the proceeds, thus making it difficult for fairly divided care.

All the law can offer to separating couples in such situations - situations that often poison for a long time what chance there was of the continuance of civilised co-parenting - is an efficiently unsympathetic place for them to dispose of a good chunk of whatever assets they are trying to divide, so that neither they nor their children ever see them again.

The hope, then, must be that these changes in general simply provide guidance that stops parting couples from becoming involved in financial disputes at all and gets them more quickly to a place where they can sort out their monetary affairs with some semblance of amicability. The fear, though, is that it will persuade people that only redress to a shit-hot lawyer can attain for them what is theirs by right, when the truth is that whether formally married, or formally cohabiting, the last place you ought to see your old flame is in court.

d.orr@independent.co.uk