Government initiatives to persuade cohabiting couples to make legal agreements about asset redistribution on separation are ineffective and could actually damage relationships, according to new research by a leading family law expert at the London School of Economics and Political Science (LSE).
Despite a government campaign to educate cohabiting couples about their rights when separating, 53 per cent still mistakenly believe in the common law marriage myth, i.e. that they enjoy the same legal status as married couples. Although the government has rejected a recommendation from the Law Commission to strengthen the law, it encourages cohabitants to make legal agreements in an information campaign on the website Advicenow.
Helen Reece, Associate Professor of Law at LSE, argues against prescriptive advice to formalise cohabitation relationships, pointing out that legal policy "overestimates the benefits of having an agreement and ignores the cost of reaching one."
She points out that the website promotes the message that it is "simple" to make a cohabitation contract to prevent a property dispute in the event of a relationship breakdown. However, the Living Together Agreement download is 30 pages long and housing law is very complicated, she says.
Research shows that "contracting intimacy" can have a negative effect by creating a "me versus you" mentality. Ms Reece says: "We know that the principal reason that couples do not contract is that they commonly assume that this would have a negative emotional impact on their relationship. This is of course why Advicenow works so hard to combat this expectation. But if competent adults believe that contracting will damage their relationship, in the absence of clear evidence shouldn't we trust their instincts? Advicenow gives little if any space to the possibility that cohabitants might be right."
In the study of psychology, the idea of "optimism bias" is well established, she explains. People are generally over-optimistic about the long-term survival of their romantic relationships and many experts believe this over-optimism enhances motivation and persistence, which enhances outcomes.
Ms Reece says: "It could be suggested that Advicenow does not aim to pull off partners' rose-tinted glasses but just to enable a quick peer over the top…But making a cohabitation agreement is far from a matter of signing on the dotted line. A cohabitation agreement involves a couple generating, chewing over and resolving a range of diverse, unpleasant, counterfactual scenarios, and this may damage the optimism bias."
She adds: "If we make ourselves conjure up clearer pictures of negative events, then we regard those negative events as more likely…Once cohabitants focus in on the potential failure of their relationship, they may believe their relationship is more likely to fail, which may in turn cause them to act as if the relationship is failing, causing the relationship to fail."
Ms Reece’s research is published in a chapter called Leaping without Looking in a new book, After Legal Equality: Family, Sex, Kinship, edited by Robert Leckey, due out on July 10.
She criticises Advicenow for exaggerating how bad the legal position is in the absence of an agreement and for using "atrocity tales" - examples of women who were left homeless and destitute when their partners forced them to leave their homes. There are no case studies of how easily partners separate if they follow the website's advice.
Advicenow mistakenly replaces the common law marriage myth with a new "no rights mantra", she says. Ms Reece points out that some partners may actually be able to claim limited rights to property after a certain period of time.
She argues that the "optimal time to answer the question of fairness on separation" may be on separation, "when all the facts and circumstances are known" and concludes: "Contrary to the stance taken in the legal policy literature, cohabitants' recalcitrance may be something to celebrate."
For a preview of the chapter or to interview Ms Reece, please contact Joanna Bale, LSE Press Office, firstname.lastname@example.org
2 July 2014