The Case Against Legal Recognition of Cohabitation

Abstract

BY judicial interpretation and by outright statutory enactment, cohabitation is gradually being accorded legal status in English and in foreign law.' At no stage in this development has the whole question of the desirability of the recognition of cohabitation been considered. It has been treated pragmatically and fragmentarily. It is not yet too late to put the case against the legal recognition of cohabitation, whether such recognition is achieved by extending marital law to cohabitants as a general principle, or by enacting special laws for them, or by allowing the fact of cohabitation to give rise to legal situations that would not have been found if the two persons involved had never lived together. The case for the opposition is based partly on practical grounds and partly on ideological ones and the ideology (which may be dignified by the appellation individualism ) has a facet which the writer has supported previously in relation to the economic rights of married persons: the assertion that women do not need and ought not to require to be kept by men after the conjugal relationship between them has come to an end.2 Individualism generally is a theory upholding and protecting the rights of a single person rather than groups or categories. The basic ideas of individualism have been described as, first, the dignity of the individual; secondly, autonomy, or selfdirection; thirdly, privacy, or a sphere of thought and action that should be free from public interference; and, fourthly, self-development.3 It will be argued that each of these ideas is well reflected by legislative non-intervention in the field of cohabitation. Sir Henry Maine traced the emergence of the self-determining, separate individual from the network of family and group ties. 4 Maine however limited his illustration of the move from status to contract to the position of women before marriage. Now it may be possible to apply