As the significance of marriage declines in family law there is no longer any justification for excluding cohabitation from full legal recognition. Discuss.

A report into divorce law by The Law Commission in 1990, stated that the aims of divorce law should be to

        

        “buttress rather than to undermine the stability of marriage and to allow the                             ‘empty shell’ of an already broken down marriage to be destroyed with maximum fairness and a minimum of distress and bitterness”

A number of other reports and discussion papers suggested similar reforms, which culminated in the Family Law Act 1996.  

        “It makes it clear that the aim of the law is not merely to regulate divorces, but is also to ‘save’ marriages.”

The Family Law Act 1996 faced many difficulties in getting through parliament, and faced much opposition, requiring 137 amendments to pass it through the House of Commons.  The result was an act which has been described as peculiarly making divorce both ‘easier’ and ‘more difficult’, by encouraging couples to stay together through mediation, but making the process of divorce less distressing for those marriages which have irretrievably collapsed.  Part 2 of the Family Law Act was subsequently not enforced.  

        

“Divorce was to be made harder to get, by various procedural devices; divorcing parties were to be coerced into being reasonable…by a complex combination of sticks and carrots; and there were to be attempts to discourage divorce altogether by requiring parties to face the realities of their post separation circumstances sooner rather later.  Not surprisingly, perhaps, all the evidence from the pre-implementation pilot studies was that this would not work”

So divorce law still stands as it was, with the Matrimonial Causes Act 1973 being its main governing statute.  As the many discussion and green papers prior to the Family Law Act indicated this is not an adequate state of affairs.

The traditional position of cohabitants in the law were that they were legal strangers and echoes of this approach are evident in the fact that that there is no obligation for unmarried cohabitants to support each other.  This is despite the growing numbers of people who choose to cohabit without marrying.  

        “It seems that among all unmarried men and women aged between 16 to 59 one in eight of the men and one in six of the women were cohabiting”

It is possible for cohabitants to arrange a contract which specifies what the circumstances would be in the event of a relationship breakdown, or indeed what the position is whilst they are together.  This is not however a common occurrence, as the expense and inconvenience, combined with the uncertain legal position it creates in reality, make it an uninviting prospect.

Further differences for unmarried as opposed to married cohabitants, as identified by Diduck and Kaganas include a lack of property rights in the family home, the lower level of parental responsibility enforced upon unmarried fathers, and weaker inheritance rights for the living unmarried partner.  This gap is however closing in some areas, in financial provisions of the government, certain tenancy laws, and the ability of married women to contract in their own name.  

A sign that the importance of marriage is declining is the increasing importance of children and parenthood as a basis around which the family is built.  This is exemplified by the abolition of the married couples tax allowance in 2000, and the introduction of the Children’s Tax Credit in 2001 which is paid regardless of whether the parents are married.  The financial benefits of being married have significantly decreased and in this is a strong suggestion that the importance of marriage in law and within politics is decreasing.  The position is succinctly stated by Dewar:

        

        “The growth in extra-marital cohabitation, and in the numbers of children born outside marriage, has had two consequences, both of which have decentred marriage as a legal concept.  The first is growing practical and political pressure to grant non-marital relationships some form of legal ‘recognition’.  The second is an increased prominence for the legal status of parenthood.”

However, the important areas of property and intestacy, still create distinctions between those couples that are married and those that are not.  Griffiths LJ has previously re-iterated the importance of this distinction, finding that cohabitants can only expect a portion of the benefits of marriage if they were living together with the same level of commitment as a married couple.  

The emphasis on financial contribution, or oral agreement can lead to great injustice in the area of property and financial support, as in the case of T v S (Financial Provision for Children).  The couple in this case had five children and were unmarried.  The female found herself with no right to be supported by her former partner in any way when the relationship reached an end.  This case highlights the need for change in the law in this area.  

Arguably the situation for unmarried couples should have parity with that for married couples.  However, this would be controversial.  There is a convincing argument by supporters of marriage that allowing similar status to cohabitants as is given to married couples undermines the very principle of marriage as the building block of society, making it worthless as an institution.  There also exist reasons that could be cited from the ‘side’ of cohabitants against giving them equal status to married couples.  Some couples may choose not to marry because they do not wish to have the same status as their married counterparts.  The difficulty with this view is how often the decision not to marry is a result of the couple not wishing to invoke the legal consequences of marriage, which in practise very few will probably give practical consideration to.  

It would seem that some reform of the law regarding cohabitants is required to give it some semblance of uniformity, instead of the piecemeal legislation, which generally applies to families rather than couples. It is difficult to suggest on easy method of reform, as it would need to affect so many areas of the life of cohabitants, both whilst the relationship is functioning, and upon its end, either by separation or by death.  

        “As cohabitation develops into a longer-term option, the need for legal intervention to solve issues such as the division of property upon the termination of the relationship, whether by death or by the choice of the parties, becomes greater.”

Many European countries have attempted to tackle this problem by establishing registered partnerships or civil unions.  The controversial aspect of such formalities is that they are usually extended to, or only include the regulation of same sex relationships.  Denmark and Sweden were the first states to enact such legislation, and the rights and obligations conferred upon the couple are wide reaching;

        “Upon registration, partners are entitled to virtually the same rights as married couples, with the exception of the rules relating to adoption, custody and artificial insemination, and any provisions that involve special treatment on the basis of a spouse’s sex.”

The concept of a civil union of some description has been put forward in a number of other European countries, such as France, Belgium, Portugal and Spain.  Britain in contrast has been slow to give rights to same sex couples, although the government announced plans for a similar scheme in December 2002.  As recently as 2000, before the Human Rights Act was in force, the House of Lords in Fitzpatrick v Sterling Housing Association were not prepared to give the surviving half of an eighteen year homosexual relationship the tenancy rights that would be given to an unmarried couple.  This was on the grounds that they were not living as husband and wife under the Rent Act 1977.  However, the court was prepared to allow Fitzpatrick to take over the tenancy as he wished, on the grounds that he was a member of the deceased mans family, although this was only made permissible by a majority of three to two.

The enactment of the Human Rights Act 1998 has already had and will continue to make a critical difference to how same sex relationships are treat by the law.  This is already evident as a result of the judgement in Mendoza, the facts of which are similar to Fitzpatrick.  However, Articles eight and fourteen were both used in the case, and they give individuals the right to enforce their right to respect for private and family life, and the right to freedom from discrimination.  Jurisprudence from the European Court of Human Rights was also followed, most notably its decision in Salgueiro da Silva Mouta v Portugal, in which it strongly indicated that distinctions based on sexual orientation would not be lawful under the European Convention on Human Rights.  Mendoza was therefore able to retain the tenancy as a person who had been ‘living with the original tenant as his or her wife or husband’ under the Rent Act 1977.

If rights and obligations are to be given to heterosexual cohabitants, it is unavoidable that the same rights and obligations are bestowed upon same sex couples, under the Human Rights Act.  The decision in Mendoza leaves open other statutory matters to more flexible interpretation.  Bailey-Harris questions the effect of the decision on other statutory provisions, including Part IV of the Family Law Act 1996.  This section of the act gives cohabitants and married couples the same rights regarding property, with a qualification in s 41 (2), that the court must have regard to the fact that the couple had never given the level of commitment as is required in a marriage.  However, that same sex relationships will have the same status as heterosexual cohabitants, in the Family Law Act and other acts is a huge step towards giving cohabitation full legal recognition, as though it were a marriage.

There are serious issues that the possible registration of same sex partnerships raises.  The scheme as discussed so far would extend only to same sex couples.  This is possibly discriminatory towards heterosexual couples who do not wish to embark on the formality of wedded life, but would like to take advantage of the legal position of married couples.  This could possibly be from a financial viewpoint, or if for example a father wishes to acquire the parental responsibility that only a husband currently holds.  This may however be impractical, as if a couple that could marry choose not to do so, it seems quite likely that they would not proceed with the option of registration.

In conclusion, it certainly would appear that the importance of marriage is declining in family law, although it is seen by many as an institution that is fundamental to the functioning of society, and the role of the family itself.  It is however undeniable that the numbers that cohabit is increasing whilst the number of marriages decreases.  Although there needs to be some legal recognition of the status of cohabitants, to give them equality with married spouses may be detracting from the institution of marriage itself.  However, its current status, which legally is quite weak, with piecemeal legislation applying is not adequate.  There needs to be a specific legislative effort that recognises that marriage is not always necessarily the norm in a modern society, and confers rights on people who wish to take the option of not marrying.  

Bibliography

Cases

Bernard v Josephs (1983) 4 F.L.R. 178

Lloyds Bank v Rosset [1991] 1 A.C. 107

T v S (Financial Provision for Children) [1984] 2 F.L.R. 883

Fitzpatrick v Sterling Housing Association Ltd [2000] 1 F.C.R. 21 H.L.

Mendoza v Ghaidan [2003] 1 F.L.R. 468

Salgueiro da Silva Mouta v Portugal (2001) 31 E.H.R.R. 47

Texts

Taylor, P. et al Sociology in Focus, (Causeway Press, Lancs) 1997

Herring, J. Family Law, (Pearson Longman, Essex) 2001

Diduck, A. Kaganas, F. Family Law, Gender and the State, (Hart Publishing, Oxford) 1999

Cretney, S.M. Masson, J.M. Principles of Family Law, (Sweet & Maxwell, London) 1997

Priest,J. Families Outside Marriage, (Jordan & Sons Ltd, Bristol) 1990

Articles

Dewar, J. Family Law and its Discontents, International Journal of Law Policy and the Family, 14 (59) 2000

Probert, R. Barlow, A. Displacing Marriage-Diversification and Harmonisation within Europe, Child and Family Law Quarterly, 12.2 (153) 2000

Bailey-Harris, R. Mendoza v Ghaidan and the Rights of de fact Spouses, Family Law Journal, 33 (575) 2003

Eekelaar, J. Back to Basics and Forward into the Unknown, Family Law Journal, 31 (30) 2001

Hitchings, E. Case commentary-Mendoza v Ghaidan-Two Steps Forward, One Step Back, Child and Family Law Quarterly, 15.3 (313) 2003

Glennon, L. Fitzpatrick v Sterling Housing Association Ltd-An Endorsement of the Functional Family?, International Journal of Law Policy and the Family, 14 (226) 2000

Statutes

Human Rights Act 1998

Matrimonial Causes Act 1857

Matrimonial Causes Act 1973

Family Law Act 1996

Rent Act 1977

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