The next point to consider is the legal benefits which marriage brings each spouse. The first is that of occupation: a spouse gains a legal right of occupation in the matrimonial home which can only be dislodged by the court (almost always upon divorce or marital breakdown). In contrast, a co-habiting couple have no such rights, relying instead upon usual property law doctrines to protect any right a partner may have in a shared home. This gives a clear advantage to the married spouse, particularly upon the breakdown of the relationship, as a non-contributing partner will have their right to the matrimonial home (or a portion of the proceeds of sale from it) protected by the divorce court, whereas a co-habiting partner would not necessarily have such protection (they may however be able to show that a resulting trust in their favour was established during the relationship etc.).
Another point to consider is what happens upon the death of one of the partners. In the case of married spouses, one is almost invariably the next of kin to the other and, in the absence of a will, will be the beneficiary of the deceased spouse’s estate. In the case of co-habiting partners this rule upon intestacy does not exist. Instead, the next of kin is found on a co-sanguinity basis (children, parents or siblings usually). This leaves the partner without any legal recourse to shared property etc. bought by the deceased (although in practice disputes between surviving partners and the next of kin are often settled amicably). Again, this seems to give the legal advantage to married couples, who find the law enforces a substantial right and benefit which the merely co-habiting partner does not receive.
There are also important benefits for married parents, particularly married fathers. A child born to a married couple is registered as the child of both spouses (whether the father is the real father or not), in the absence of contrary instruction (i.e. an alternative father). In contrast, unmarried fathers have no such automatic right to be registered as the parent of the baby; they have to accompany the mother to register the birth, essentially meaning both that they can be shut out of gaining parental responsibility where they wish to play a role in the child’s life or can abandon the mother and child and refuse to accept their responsibility at all. Neither of these scenarios are ideal as arguments between parents can lead to one partner being shut out of the child’s life, which is undesirable from the point of view of the child’s welfare, or enables parents to ignore their responsibility by not, in some cases, forcing it upon them. The advantage of married fathers is fairly self explanatory as it automatically affords them parental responsibility, which while being a financial burden, will also enable them to have rights in important decisions and to gain pertinent information about their child’s development, whether or not they remain with the mother. With respect to the mother, the advantage of marriage is also clear as she is able to pinpoint a father for the child who will then have to contribute to his welfare; at the very least, this financial contribution is required to, in many cases, reduce the burden on the welfare state and encourages social responsibility, arguably an important policy consideration.
Furthermore, married partners have rights with respect to their spouse’s pensions, whereas the unmarried partner, in general, does not. Not only are there state benefits for widows and widowers but occupational pensions often also provide for the employee’s partner in the event of the employee predeceasing them. These benefits very rarely pass to the common law spouse upon the death of one partner as they are generally non-transferable, leaving some unmarried bereaved partners without financial support in their old age. Again, this gives the financial advantage to the married couple. Also, upon the breakdown of a marriage the divorcing partner is entitled to a portion of the spouse’s pension if they have been unable to build one because of their position in the marriage; there is no such pension sharing option for those who were never married.
Thus it is clear that the legal remedies are almost exclusively to married spouses, both in marriage, in death and upon divorce. The remedies for co-habiting partners are relatively sparse in comparison. This is almost certainly due to design by law and policy makers, although the balance is slowly starting to shift to give co-habiting partners more legal rights (see various recent legislation citing a two year “enduring” relationship as a test for various benefits). Thus marriage is certainly a necessary legal device to give people this particular set of rights; as for how necessary it remains, that would depend on the state of the law at any given time. At the moment, there is no clear replacement for marriage as a legal institution, therefore it is necessary to preserve and provide the benefits outlined above to people within a relationship. It is difficult to see what could replace it: a merely civil partnership would not satisfy the church, or indeed the sensibilities of many people while giving co-habiting partners all the same rights as married partners would not be desirable either, as there are people who co-habit for the relative freedom etc. that it affords them. Thus marriage remains a convenient concept until the lawmakers are able to find an alternative arrangement which fulfils the necessities of marriage in the eyes of the church and law, while balancing the delicacies of social policy at the same time. Marriage as it stands at the moment is probably therefore the best option available from all points of view, although as society continues to change, the legislative must be sure to respond to the needs of the electorate in adapting the law to protect those in co-habiting couples, whether hetro- or homo-sexual, to ensure that there does not become an underclass purely based upon a quasi-religious ceremony.
23 Social Trends, 2.15 (1993)
