As the significance of marriage declines in family law there is no longer any justification for excluding cohabitation from full legal recognition. Discuss.
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As the significance of marriage declines in family law there is no longer any justification for excluding cohabitation from full legal recognition. Discuss. As the question assumes that the significance of marriage is declining in family law, the first task of this essay will be to establish whether this is factually the situation. This will be ascertained using trends in the divorce rate, the effect of statutes on marriage, and consideration of whether marriage was ever particularly significant in family law anyway. The justification, if one exists, of excluding co-habitation from legal recognition will then be discussed, developing into more in depth reasoning regarding co-habitation, and whether it should enjoy a status in any way analogous to that of marriage. The more controversial issue of the extension of such rights to same sex couples will then be considered, in view of recent case law, and the Human Rights Act 1998. The role of marriage in society can be said to have been in decline in the latter half of the twentieth century, with statistics showing the marriage rate generally declining, especially in the final thirty years of the century, whilst the divorce rate increased. "Between 1971 and 1991 marriages fell by almost sixteen percent while divorces more than doubled. For every two marriages in Britain in 1991, there was one divorce1" The factors behind such trends are varied, complex and impossible to clarify succinctly, as each individuals reasons for getting divorced, or for not getting married are different.
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.10" 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 couple11. The emphasis on financial contribution, or oral agreement12 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)13.
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.
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