Critically evaluate the extent to which marriage has been and is likely to remain a convenient legal concept in regulating the family.

So far as the outset of the partnership is concerned, English law accepts Article 16 of the Universal Declaration of Human Rights, whereby: ‘Men and Women …have right to marry…’ There is a similar provision in Article 12 of the European Convention on Human Rights (ECHR) which also, in Article 8, protects the right to respect for private life. Yet the ECHR has not so far permitted transsexuals to marry in their gender of choice, although the court there stressed that Convention States should keep their laws under review in the light of changing medical opinion and in 1995, a Gender Identity (Registration and Civil Status) Bill, which would have permitted a new birth certificate, was introduced in the UK Parliament. Transsexuals are therefore still included amongst those who lack the legal capacity to marry, such as those covered by the prohibited degrees of consanguinity and affinity, and the already-married and homosexual couples, all of whom are restricted to the extra-marital option, as s.11 of the Matrimonial causes Act(MCA) 1973 renders any such marriages void ab initio. We might, at this point, deal with the canard of ‘common law’ marriage. The position is that a marriage celebrated in England and Wales must involve one of the presumptions of preliminary requirements and ceremonies allowed under the Marriage Acts 1949-96. the doctrine can not be applied to partnerships because common law marriages has been unavailable since Lord Harwicke’s Act.

So far as the ‘functioning’ relationship is concerned, the law continues to make radical distinctions between marriage and cohabitants & same sex partnership.

On divorce does the distinction between marriage and cohabitation become highly significant as the divorce court has wide-ranging powers to allocate property between spouses.  This contrasts with the statutory framework dealing with the financial provision between married couples who divorce [ s21-26 Matrimonial Causes Act (MCA) 1973]. The law relating to the property entitlements between cohabitants has not developed a great deal since the landmark decisions of Pettit v Pettit and Gissing and Gissing. The courts still apply strict rules of property law when dealing property disputes between unmarried cohabitants. The position is harsher in the cases of homosexual couples who are unlikely to have any right on their partner’s property. However, the Relationships (Civil Registration) Bill has been introduced into the House of Commons. The Law Society President, David McIntosh, said: "Reform of the law in this area is long overdue. There should be proper legal protection for both heterosexual and homosexual cohabitant couples in a legally defined relationship." This Bill attempts to help those cohabiting couples who 'register' their partnership, but this is just one important step towards the provision of much-needed rights for cohabitees. Stuart Bridge commented that there has been acceptance at ECHR level that differential treatment on the basis of a person’s sexual orientation can violate the prohibition on discrimination in relation to enjoyment of other Convention rights under Art.14. But she said it remains a matter to speculation whether this may ultimately lead to a successful challenge to laws which restrict marriage to persons of opposite sex.

During the failure of the relationship, rights of protection from violence and of occupation in the home are again available to both sorts of partner under Part IV of the Family Law Act 1996. We might note that the law recognises ‘same sex’ partners for some purposes. For example, s.62 (3) of the Family law Act 1996 includes within its definition of ‘associated persons’ those who ‘live or have lived in the same household’ this opens the door to take making of a ‘non-molestation order’ in favour of a homosexual partner.

Marriage creates a set of assumptions about legitimate parenthood. A married father is able to have automatic parental responsibility over his child.  This is denied the unmarried father. However, his position is now much clearer as a result of the Children Act 1989. However, the unmarried father has no automatic parental responsibility, this vest exclusively in the mother. The father must acquire parental responsibility either by agreement with the mother or by a parental responsibility order or by obtaining a residence order. At present, an adoption order can only be made in favour of two persons if they are a married couple --- the same applies in respect of parental orders following a surrogacy arrangement.

 

Considering different types of partnerships, it is now to be discussed whether marriage is likely to remain the convenient legal concept to regulate family. There is no doubt that as the alternatives to marriage are strengthened, so the institution of marriage is progressively weakened. This undermines the only institution ever shown to be capable of raising children successfully.  Patricia Morgan in her book  Marriage-Lite, The Rise of Cohabitation and its Consequences argued that marriage has been demoted in society as a whole.  It has lost the support of government, and is neglected and discredited in the media. Politicians and social policy intellectuals frequently avoid using the term 'marriage', claiming that cohabitation and marriage are essentially the same. The Lord Chancellor's Department stated its belief in a recent paper when canvassing proposals to give unmarried fathers the same parental rights as married fathers. It said that "the growing acceptance of long-term cohabitation as a preliminary or alternative to marriage" means that "many such relationships must be at least as stable as marriage". Likewise, Jack Straw when he was Home Secretary said, "we shouldn't get in a paddy about the decline of formal marriage … other kinds of families, including single-parent families, parents who live together without choosing to marry, and step-families, can do just as well for their children" on the grounds that "the most important thing is the quality of the relationship, not the institution in itself". 

Those holding this view believe that the term 'cohabitation' or 'partnerships' is more inclusive. Whether or not people are married to each other, does not matter. To them marriage is no more than a "piece of paper".  What do matter, so they argue, are long-term, stable relationships.

However, arguments against cohabitation and same-sex partnerships are many. Those relationships do not have the stability or permanency of marriage.  They are far more fragile and regardless of age or income, are more liable than marriage to fracture. If they prove incompatible, then breaking up is easier and less messy.  There are no legal formalities and personal loss.  Cohabitation has become a major route into lone parenthood. Many surveys have been proved that cohabitations are not a helpful way to parenthood.  The quality of relationships of cohabitants, particularly if there are no plans to marry, are less happy with their relationships as well as less committed than the married. There is considerable evidence to show that marriage is a 'healthy environment' associated with lower mortality and morbidity. Another issue is that of faithfulness.  In the UK 43 per cent of cohabiting men have reported being faithful to their partners in a five-year period, compared with nearly 90 per cent of married men. Indeed, 24 per cent reported running two or more relationships at the same time!  There is a higher rejection of parenthood by cohabitants compared to married people. Abortions are around four times more frequent with pregnancies involving cohabiting rather than married women. On the other hand, marriage involves depth of commitment on the part of two people and the promise to love and care for each other for life. It involves constraints, but constraints "are part of the creation of a 'secure and predictable environment to which real and durable choices may take place.  When we lose the constraints we lose choice; we lose a species of liberty and the guarantees the unique and productive environment that marriage can create'".  Marriage offers stability, security and a lasting happiness, which those who cohabit desire but cannot obtain.

Professor Eric Clive, considered whether the legal concept of marriage was necessary and whether marriage could be abolished as a legal status altogether. He argued that obligations in partnerships could be more fairly based on existing dependency rather than actual status and that as obligations to live together and to be sexually faithful are ‘manifestly unenforceable’ they could be  discarded without difficulty. However, if marriage disappeared as a legal concept all laws relating to marriage may be disappeared. For example, there would be no rules for under age marriage, marriages between near relatives etc. divorce would also disappear. Stuart Bridge argued that intimate personal relationships could not be entirely devoid of regulation. She suggested that one way would be to expect parties to enter into legally enforceable contracts governing such matters as their respective property rights, their mutual financial support and perhaps matter such as the upbringing of children and even sexual fidelity. According to Bridge, traditional marriage has changed. But it remains, for the most part, a contract of standard term. The major issue is whether to regard living together as a private arrangement or a quasi-marriage regulated by law. The contract may take different forms such as a ‘pre-nuptial agreement, a cohabitation contract etc.  A cohabitation contract is an agreement entered into at the commencement of cohabitation and intended to regulate the financial relationship of the parties either during the subsistence of cohabitation or at its termination, or both. A civil partnership agreement would make some legal provision for cohabiting couples. However, the status of domestic partnership contracts remains unclear irrespective of the nature of the relationship. In so far as a ‘pre-marital contract’ might purport to deal with the post-marital financial arrangements, it could not be guaranteed as binding, because the parties may not contract out of the divorce court’s powers of financial relief under the MCA 1973 (although such arrangements might be seen as one of ‘all the circumstances’ under s.25). Similarly, the legitimacy of a ‘cohabitation contract’ remains uncertain in the absence of modern authority. As the latter does not attempt to pre-empt existing statutory entitlements, no legislative reform would be required. It should be noted that, the UK government has made statements supporting their utility as providing the spouses with a means of articulating their respective rights and obligations, and of enabling them to draw up their own marriage contract to deal with their own particular circumstances. Legislation also contemplated to achieve this intended objective. It seems, therefore, ‘contract’ might play the role in the future regulation of marriage.

Professor John Eekelaar said one of the legal difficulties in regulating non-marital relationships is the extent to which the commonality of such relationships should be recognised. The state has recognised this when paying out benefits. The law has been slower to do so and has been responding through piecemeal reforms. Registering civil partnerships would help to clarify the situation, but it is uncertain how many people would enter into this state and many relationships where people are living together would still not be covered. A further area of legal difficulty is the resolving of disputes between partners. The Civil Partnerships Bill allows the court to make an intervention order after dissolution which is very similar to divorce. There is the possibility of singling out parents by using the provision under the Children Act to allow for the distribution of property. Again, people who just live together would not be covered, although there are some restrictions on distribution which could be amended.  A wide range of responses will be needed in a diverse society; as Eekelaar said, we should be wary of trying to force every situation into one legal mould. The most pragmatic and inclusive way forward would appear to be to allow people as much choice as possible.

Angela Mason, Stonewall (a British lesbian and gay lobbying organisation) commented that although there is little social, legal or religious support, a significant number of gay and lesbian couples sustain long term cohabiting partnerships. However, household composition and pattern of relationship breakdown may be different to heterosexual partnerships. For the lesbian, gay and transsexual community,  as Angela argued, the social esteem and respect from the recognition of relationships can be important as the legal rights. Mutual rights of partners within a relationship are also more pressing than adjudication of property when a relationship ends. In Britain, people want gay marriage because it represents equality, but are more concerned in practice with civil partnership registration. This represents values of equality and mutual responsibility and commitment which, as with marriage, express what people desire from their long term relationships. With recent changes, local authorities will be able to set up civil registers and many people are expected to apply. The Civil Partnership Bill covers all adult relationships but does not tackle rights for children. However, the Adoption Bill will allow unmarried couples who are in an enduring family relationship to adopt jointly. There is some ideological opposition to civil partnership, for example, concerns about the undermining of marriage, commitment and stability in relationships. However, there is a great deal of support. Another objection, is the economic consequences, especially the cost of altering work and pensions systems.

To conclude, I partially agree with the statement posed by the question. However, one of the themes that have been observed during the discussion is that the legal effects of marriage and cohabitation have merged. It has also been pointed out that an imposition of based on cohabitation, is more fraught with difficulty in terms of practical operation. The collapse of marriage means growing family instability, declining investment in children and in the end to more men and women living alone.  It also undermines society. Marriage may regulate a declining number of relationships, but its ready identifiability, and popular recognition and respect, may still justify its primacy and its protection. However, in my opinion, marriage today has sadly lost the support because of government and is neglected and discredited in the media. There is vast ignorance about the meaning, implication and far-reaching effects of cohabitation (both heterosexual & homosexual), for those involved and for the whole of society.   I think marriage will be regarded as the convenient legal concept in regulating the family and should be revitalised but this requires considerable re-education of society, and the elimination of the anti-marriage bias currently prevalent in society.

BIBLIOGRAPHY

TEXT BOOKS

1. Cretney & Masson  Principles of Family Law (1996) (6th ed. Sweet & Maxwell)         
2. Cretney Family Law (2000) (4th ed. Sweet & Maxwell)
3. Herring (ed) Family Law - Issues, Debates, Policy (2001) (Willan Publishing)

STATUTE BOOK

Blackstone's Statutes on Family Law 2002-2003 (Eleventh Edition)

CASES AND MATERIALS

1. Hoggett, Pearl Cooke & Bates The Family, Law & Society - Cases and Materials (1996) (4th ed. Butterworths)

2. Barlow Cohabitants and the Law (1997) (Butterworths)

WORLD WIDE WEB

1. Lexis-Nexis 
2. West Law 

JOURNALS AND REPORTS

1. Bailey-Harris Law and the Unmarried Couple - Oppression or Liberation? (1996) 2 CFLQ 137
2. Bridge ‘Marriage and Divorce: the regulation of intimacy’ in Herring (ed) Family Law - Issues, Debates, Policy (2001)
3. Forder ‘Opening up Marriage to Same Sex Partners’ in Bainham (ed) International Survey of Family Law (2000)
4. Hale ‘The Family Law Act 1996 - the death of marriage’ in C. Bridge (ed) Family Law Towards the Millennium (1997)

OTHER MATERIALS

Law Questions and Answers, Family law, Chris Barton and Mary Hibbs, Blackstone’s, 2nd edn. 1998

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