Are cohabiting couples treated as if they were married? Critically review recent proposals to reform this area of law.

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Research indicates that a majority of cohabitants believe in the “common law marriage myth”: the idea that unmarried couples who are living together are, after a certain amount of time, treated for all purposes by the law as if they were married.” Law Commission (303) Cohabitation: The Financial Consequences of Relationship Breakdown

Consider the extent to which cohabiting couples are treated as if they were married and critically review recent proposals to reform this area of law.

Family Law can no longer be concerned with marriage alone, as different types of families and relationships are emerging. Society has changed dramatically in recent years, becoming increasingly tolerant of different types of families and relationships, such as single parent families, same sex partnerships, and cohabiting couples. The law, however, has not moved forward as dramatically and there are conflicting views on whether this is good or bad. Some believe that the law should reform in order to accommodate these changes, such as the increase in cohabiting couples, whereas others believe that if these couples want the same legal rights as married couples they should get married. Therefore this essay will examine the extent to which cohabiting couples are treated the same by law as married couples, and what legal reforms are currently proposed that will effect them.

‘Cohabitation’ has been defined in the Family Law Act 1996 as “a man and woman who, although not married to each other, are living together as husband and wife”. However it is important to note that this definition is limited, as it does not acknowledge several other types of cohabiting couples, such as same-sex couples. There has been a significant increase in the rate of cohabiting couples in recent years; according to the 2001 Census, the number of cohabiting couples has increased by 67% in the last 10 years, and according to the Law Commission Report 307 (2007) cohabitation is “expected to become more prevalent in the future”. It was also revealed in the report that according to the British Social Attitudes Survey 2000 that the public opinion on cohabitation is positive, with 67 per cent of respondents agreeing that it is “alright for a couple to live together without intending to get married”

There are several social factors that are impacting on the rate of cohabiting couples; firstly, the marriage rates are decreasing by the year, with the 2001 Census showing that in 1971 67% of the population were married, whereas in 2001 only 50.7% of the population were married. This suggests that rising numbers of couples are choosing to cohabit as opposed to marrying. This may also be affected by the fact that statistics have shown that people are marrying later on in life. A consequence of this is that they are cohabiting for longer before they marry, adding to the increase in cohabitation.

According to Social Trends 2007 the rate of births outside of marriage has risen from 10% in 1970 to 43% in 2005. This vast rise demonstrates how it has become increasingly socially acceptable to have children outside of marriage. This means that couples are not feeling obliged to marry if they wish to have children like they used to, and are now able to merely cohabit. Yet another rate affecting the increase of cohabitation is the growing divorce rate. This could possibly be discouraging people from marriage, therefore they are simply cohabiting.

The increasing social acceptability of same sex couples has also had an effect on the rate of cohabitation. As same sex couples are not legally allowed to marry they add to the vast number of cohabiting couples. Same sex couples may, however, enter into a Civil Partnership, due to the Civil Partnership Act 2004 which gives their relationship legal recognition. This does not entitle them to receive the same rights as a married couple, however does entitle them to more than a cohabiting couple.

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Despite the common belief that cohabiting couples are treated by law as if they are married, there are many significant differences between marriage and cohabitation, for example, parental responsibility. This is vested in both married parents, however according to the Children Act 1989, if the mother cohabits with the father but is not married to him, she has exclusive parental responsibility. However, due to Adoption and Children Act 2002, the unmarried father at the time of the child’s birth will have parental responsibility if his name is placed on the birth certificate. If it is not, the father is not automatically ...

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