The most important benefit of marriage

‘The Most Important Benefit Of Marriage That (Unmarried) Cohabitants Lack Is Access To Divorce Laws At The End Of Their Relationship'. Critically Discuss.

This paper will support the argument that, divorce laws governing married couples are not the most beneficial; in fact they are just one of many. Throughout this paper the aim is to compare laws that govern married couples with cohabitants, exemplifying an inadequate legal system. This paper will not only look at the law surrounding the end of a relationship but other areas argued to be just important, including births and deaths and child laws, these areas are fundamental especially child law, this is because being married does not alter the relationship that parents have with their children. Furthermore the controversy of cohabitation laws due to the civil partnership act 2004 will be discussed, especially the issues that have arisen due to same-sex couples having mostly all of the rights of those who are married. Whilst discussing the position of cohabitants reasons why couples wish to cohabitate will be discussed, and whether rights of married couples should govern cohabitants

Marriage has undoubtedly a superior title than that of cohabitation, mainly because it is seen as the traditional institution of society, Carol Smart describes marriage as an “ideological enclosure which confers identity and meaning” Kagnus and Diduck argue that the view on relationships are held by “dominant communities”, that suggest marriage is a “privileged status.” Cohabitation is when a couple decide to live together but not marry each other Jan Trost describes it as “living together under marriage like conditions but without a marriage”, by this statement it could be argued that cohabitating is the same as being married but without legal recognition, therefore raises the question as to why cohabitants are not protected by sufficient laws. Cohabitating has dramatically increased; the 2001 census reported that there had been a 67% increase in cohabitation since 1991, supporting the view that the law should reform. Martha Freeman's feminist perspective suggests that marriage should be abolished as a ‘legal category', she argues that relationships between male and females should be governed by the same laws that govern other relationships furthermore, that “legal consequences would have to be a result of a separate negotiation”. This viewpoint can be supported by suggesting that certain couples only get married to gain protection, furthermore it can be argued that a marriage is seen as a ‘business partnership' as suggested in the case of White v White.

The scope of divorce law is very broad and beneficial “The law treats cohabitation differently from marriage thus cohabitants, unlike married couples and civil partners have no mutual obligation during their relationship or on its breakdown to provide financial support for each other”. When there is a breakdown of a marriage the law assists couples in dividing property that the couple share as seen in Mcfarlane v Mcfarlane. This is a right that cohabitants do not automatically gain, “cohabitants do not have statutory rights of the family home.” This factor could be argued to be unfair because it demonstrates that the state protect those who enter a marriage without looking at each relationship on its own merit, although it has been argued that cohabitating relationships are ‘short term and lacking commitment' research revealed that cohabitation relationships are increasing in duration, moreover people do not address marriage as necessary. When couple's divorce, courts can exercise their powers in various ways, partners can seek financial orders under the Domestic Proceeding and Magistrates Court Act 1978, when marriage is entered property rights are very important. Under s. 22- 25c of The Matrimonial Causes Act 1973 the courts have “existing powers to re distribute parties assets” there are two cases that can be used to demonstrate how the courts use these powers, in both McHardey and Sons v Warren and Midland bank plc v Cooke both husbands used the matrimonial home as security for a loan, although they owned the homes solely because, the wives had inputted their time and money in improving the homes the court awarded them with 50% equity , in contrast cohabitants would very rarely gain these rights as seen in the case of Burns v Burns, in this case the partner of 19 years was not entitled to anything on the breakdown of the relationship, resulting in a the appellant and her two children without a home and any other assets.

There are however provisions under The Family Law Act 1996 to review and address property that cohabitants have shared, under s.42 “ when courts are required to consider the nature of the parties relationship, it has to have regard for the fact that they have not given each other the commitment involved in marriage.” Firstly this provision only applies if there is a clear intention that the property was intended to be the home of both appellant and respondent, secondly the section highlights the fact that those who are married have more ‘commitment', suggesting that those who are not, are less committed thus arguably defeating the objective of such provisions.

However in the case of Oxley v Hiscock, the court awarded the female cohabitant with £72,000 from the sale of a house even though the property was not jointly owned, there are distinguishing features which make this case different from Burns v Burns. Anne Bottomley compares both of these cases and provides many aspects to consider, Mrs Hiscock was granted equity in the property due to beneficial interest, this does not mean that cohabitating laws will be reformed, Bottomley discusses how this approach could limit only those who have a financial concern, within the property therefore not protecting ‘The Mrs Burns type'. Kagnus and Diduck argue that courts favour “gender stereotypes” and that only financial contributions are regarded as beneficial interests, furthermore that other input “by means of labour and child care may find their contributions discounted” thus supporting the argument that beneficial interest is not sufficient in sustaining adequate protection.

When entering a marriage, the law assumes that the mother's husband is her child's father”. Cohabitants are not governed by this law, currently the Births and Deaths Rate Act 1953 (BDRA) does not require the father of a child to provide any details of himself; “he doesn't have a right to independently provide any details”. Under s,10 the fathers details can be registered if the mother and father jointly register the child's birth, at the request of the father producing statutory declaration asserting paternity and a statutory declaration from the mother confirming that he is the father. Another mean of registration is at request of a valid parental responsibility agreement ordered by the court. The BDRA currently makes it quite difficult for unmarried couples to register the births of children and involves “too much cooperation between mother and father of the child when it comes to registration of births.”

It must be noted that The Welfare Reform Bill, is currently going through various stages in parliament to amend the rights that cohabitants have including BDRA, which would result in the mother having to provide details of the father. Currently no amendments have been made however the aim is to “promote child welfare and parental responsibility by ensuring where possible, that unmarried parents jointly register the birth of their children.” Although the amendments will be a step in the right direction, it does not provide adequate protection for fathers, this is because mothers can choose not to provide the name of the father; there are no repercussions that the mother would face. Alternatively the mother can simply say she does not know who the father is, “the father can only be named if the mother acknowledges him to be the father.” This equates to a disadvantage that cohabitating fathers face, there is no provisions that ensures that they will be registered, giving the mother the majority of the decision making.

Married couples clearly benefit especially the male spouse because it is much more difficult for fathers to gain access to their children when a cohabitating relationships break down. Getting married is a choice that everybody has; this choice should not affect a child's relationship with its parents, the late- modernity viewpoint discusses the concept of the “modern idea of individualization”, supporting the principle that a child should be seen as an individual, rather than property of parents, furthermore the child is described as “being worthy” arguing that child welfare is more important than factors that divorce laws cover. In the case of Stephenson v Stephenson Children's happiness was supported to be of greatest importance.

It is not just the fathers that lack benefits in cohabitating relationships; mothers are not entitled to any financial support as illustrated in the case of Burns v Burns. This case demonstrates how cohabitation laws are unfair not only for the partners involved but for the children too, children do not have the same benefits that they would if their parents were married.

Another ‘benefit' that married couples acquire is in the event of death, if a spouse dies they will automatically gain the household that they shared, unless stated otherwise in a will. Cohabitants do not have this right and therefore if a partner has not made a will they will not “automatically inherit anything from them including the family home.” However, provisions have been made by the Law Reform Act 1995, which has allowed cohabitants to make an order giving them rights over the deceased's property. The courts make a decision with regard to a reasonable person, as was seen in the case of Re Watson, however, hetero or same sex cohabitants “may only receive provision based on his or her need for maintenance, there is no entitlement to seek capital share of deceased estate”. However the case of Kotke v saffararini differed, the court found that the deceased ‘centre of gravity' had not shifted until after the pregnancy, therefore failed to satisfy the two year threshold. This demonstrates the lack of consistency within the law by supporting a single partner, who had a less intimate relationship in contrast with somebody who was carrying the child of the deceased. It has however been argued that cohabitants should not gain these benefits because, they should be aware of the law relating to their choice of lifestyle, Lord Devlin describes marriage as a building block of society which is fundamental he described it as the “bedrock of society.” In the case of Campbell v Campbell Sir George Baker describes cohabitation as “complete cheapening of marriage.” From these quotes it can be deduced that marriage is regarded as a superior institution. In defence of these arguments it can be said that this is an outdated outlook on cohabitation and that society has evolved therefore so should the law. Smart argues that women depend on marriage to gain stability; she argues that this conception has been embedded within society, this argument supports the viewpoint that marriage is not a ideological institution and is not fundamental in society. It has been argued that cohabitants do not differentiate marriage and cohabitation and that they regard it as ‘common law marriage' although ‘common law marriages' do not exit the essence of this argument is that those who cohabitate have exactly the same relationship as those who are married. In the event of death, the only provision that entitles a partner to have any rights over the deceased assets is if a will has been made, or in the exceptional cases where beneficial interest exists. Other areas that married couples gain benefits in circumstances of death are by the special provisions that are made Under the Inheritance Taxes Act 1984, if a gift is made whether in life or death “are exempt from inheritance tax.” On the contrary there are no such provision made for cohabitating couples, this factor is crucially beneficial as it as it can leave a partner at great loss.

The civil partnership act 2004 has created tremendous controversy not only because it differentiates marriage with civil partnership with regard to equality as seen in Wilkinson v Kitzinger, but also gives same sex couples rights that cohabitant's lack. Up until the enactment of the 2004 act same-sex couples did not have any marriage like rights as seen in the case of Fitzpatrick V Sterling Housing Association. In this case the remaining partner of a same-sex relationship was not allowed tenancy rights upon death, even though there relationship was of eighteen years old, only because of The Rent Act 1977, the tenancy was allowed to be transformed however only on the grounds that Fitzpatrick was considered a family member of the deceased and not a partner Diduck comments that the reasons why Mr Fitzpatrick was considered as a family member because he “came to embody the good that is the sacrificing and dedicated partner of family ideology,” suggesting that only when same- sex couples conform to the ‘perceived roles' will they gain legitimacy. If a civil partnership is not a marriage then why do those who have entered a partnership gain rights that married couples have. Lind's conservative concept suggests that a ‘normalization' of sexuality should occur and that one's sexuality should not be of consideration when developing the law, thus excepting that same sex couples are the same. This concept focuses on the foundations of the issue, whereby society's presumptions towards sexuality should be reformed. If sexuality was not seen as an issue, it would enable same- sex couples to have equal rights. Although civil partnerships are not recognised as marriages, most of the rights and benefits of marriage are attained, therefore raising the question as to why there are no such provisions for cohabitants. Because of the recent advancement it puts more strain on this subject, thus needing reform. benefits such as tax credits, child support, tenancy agreements and also next of kin rights, are what cohabitating couples lack which do not fall underneath divorce law thus suggesting that divorce laws are not the most important benefits lacked. Although arguments have been made which suggest that marriage is an option for cohabitating couples, it can be argued marriage could have been offered to same- sex couples therefore, no hesitation should be made in creating legislation which allows cohabitating couples to enter a partnership, moreover there are fewer justifications with regard to the reluctances.

It must also be considered why cohabitants choose not to enter a marriage, some may argue that if they want access to laws that govern married couples they can get married however, there are various reasons that can be used to justify why certain people refrain. Some people embark upon a cohabitating relationship to experience what it would be like to live under marriage like conditions without being legally tied; Glendon describes it as a “desire for a trial marriage.” Others are unaware that they will not gain marital rights also referred to as the unaware cohabitants, they are under the influence of the myth that is ‘common law marriage' although it could be argued that it is up to the individual to know their rights, a counterargument that can be used is that society should be better informed, it has been argued that people who choose to cohabit knowingly, do not want to be legally confined, Lewis et al argues that cohabitants have more choice, they don't have to live together for the sake of their vows, children, property or even religious beliefs, this concept suggests that the cohabitating relationship is one of truth i.e. couples have a choice, therefore it could be argued that if cohabitants gain more rights there could be a possibility that fewer people would get married, thus preventing couples getting married for the sake of the ‘benefits'.

Anne Barlow's ‘just a piece of paper' report concluded that many cohabitating couples believed that they possessed the rights of those who are married “disturbingly substantial minorities believe the law already does so.” Many are also prohibited to marry, up until the civil partnership act 2004 same sex couples were unable to enter a marriage like relationship, although this does not apply any more it still can be used to understand the barriers and difficulties that certain couples are faced with. The prohibitions of marriages are set put in the Marriage (prohibited degree of relationship) Act 1886, relationships between blood relatives are void, however there are other relationships which have restrictions such as getting married to a former spouse of a son, the only means that the marriage can occur is if, the son dies, the mother of the son dies and providing that both parties are above 21. This illustrates the difficulty that one may face therefore giving them no choice of marriage thus lack of protection and rights.

Cohabitants should have access to similar rights to married couples; there are various justifications that can be used to support this argument. Firstly a relationship is fundamentally based on the same principles regardless of marriage, Barlow and James argue that the law treats cohabitants as married in certain situation, and not in others, they argue that the remedies are far more inferior and are inconsistent.. Beck & Beck argue that relationships vary between different individuals, resulting in a lack of safeguards that protect different individuals, this concept is regarded as the ‘process of individualisation', they argue that due to the ‘individualisation' “the world segregates them rather than binding” in relation to cohabitation, this concept suggests that cohabitation is an individual choice of relationship, therefore the law should create safeguards rather than segregating them. Scotland introduced new laws that do offer protection under the Family Law (Scotland) Act providing a skeleton of laws that allow cohabitants to pursue financial claim on the breakdown of a marriage, It must be noted that not all cohabitants would gain the benefits under Scottish law.

The eligibility requirements are met if there is a child, if there is no child then the duration of the relationship the subject that is considered. Currently in Scotland there is an opt out scheme; this is because some people make a conscious decision not to get married, so that they are not bound by the laws. With regard to Scottish law it can be argued that England and Wales should also follow in the same footsteps. Another factor that can prevent certain people getting married is cost; this is due to the pressure which is inserted upon people for a traditional ‘white wedding' thus finding it difficult to get married at a registry office. Freedom of choice is also a key issue that needs to be addressed, society like to make their own choices and everybody should choose whether they want to be legally recognised as a husband/wife, however, it should not affect the rights that one gets at the end of a relationship.

France, Belgium, Portugal and Spain have also embarked on new bills being passed. “In Belgium couples are required to make a declaration that they wish to cohabit legally and mention must be made to the agreement that the parties have made.” By discussing the above it could be argued that England and Wales should also follow in the same direction and that the laws regarding cohabitation are overdue.

Cohabitants can however protect themselves by entering a contract, which would express how assets would be divided if the relationship ended, however Anne Barlow explains that there is still “no certainty that the courts would enforce such a contract.” Also the Council of Ministers recommended that such contracts dealing with proprietary and financial rights should not be “reviewed due to the fact they are not married”, this is due to the fact that cohabitation contracts are of private interest as opposed to public interest. There is notably a public and private divide regarding marriage and cohabitation, the law is restricted to intervene in certain private aspects under Article 8 ECHR. Feminists argue that “if the state does not intervene in a particular area of life, the status quo is thereby supported by the law”, furthermore they argue that this results in the oppression of women. Stuart Bridge argues that that it can be difficult to align whether marriage is public or private; he argues that it is “public in a sense that it is an institution but simultaneously the ultimate private arrangement.” He argues that increase in marriage contracts i.e. ‘pre- nup agreements' is a shift towards privatisation, thus supporting the argument that marriage and cohabitation are arguably converging into the same path. Cohabitation contracts may fail on numerous grounds such as, absence of consideration as in Horrocks v Forray, illegality, void due to uncertainty and also the possibility of undue influence as seen in 0'Brien. The risks that are attached to cohabitating contracts are substantial as seen in Balfour v Balfour, thus making them less reliable and protective to marriage. Also there is a deduction that is made that those who enter contracts do not intend to be “legally bound” as deduced in the case of Gould v Gould.

The law commission has published a report which makes recommendations to parliament regarding laws that govern cohabitants. Barlow and James describe cohabitation law “confusing and need of reform” they argue that reform is needed due to social trends furthermore; they argue that the function of married and cohabitation relationships are the same. They argue that marriage is declining and cohabitation is increasing, therefore resulting in more families relying upon cohabitation laws, however they are not governed properly. Nicholson suggests that “when new family types emerge, on a wide scale there are probably good reasons for their emergence.”

Therefore it is essential to discuss the potential reform as it could change cohabitation law dramatically. The report accepts that cohabitating couples should not have access to the same rights as married couples, as they have not made a public commitment, the report states eligibility requirements which apply only, if the couple have a child together or if they have been together between 2- 5 years. The commission suggest that an opt- out scheme should be available, thus preventing certain cohabitants being “forced into a legal regime”, however the scheme does offer the same protection as married couples benefit from on divorce laws, it suggest that only those who make qualifying contributions to a relationship would benefit thus, living together for a long period of time would not result in protection. It can be argued that the report does not offer substantial relief; it can be argued that property law already governs this aspect of cohabitation with regard to the law of constructive trusts. A further criticism of the report is that it does not regard tax, social security and next of kin rights, therefore not broadening cohabitation laws more than they already are.

Throughout this paper, it has been evident that marriage brings extensive rights which cohabitant's lack, although there have been slight glimmers of hope i.e. the rent act 1977, the law does not adequately represent society, it can be argued the law it hesitant in governing alternate family models unless they are ‘marriage like.' With the enactment of the civil partnership act 2004, it highlights this issue even more, as it excludes heterosexual couples from any protection. It is evident that the law does not place cohabitation on the same par as marriage and is seen as a second class institution, although there has been allot of discussion about the issue, the actuality is that no reform has occurred up to date, many academics also argue that no reform will occur as their are other means of protection, as discussed in this paper, these forms of protection are not reliable enough and arguably very specific therefore may only protect specific cohabitants that mirror marriage. Although divorce laws are paramount, it has been evident that other laws are just as important and necessary, not all relationships end due to choice, therefore needing reform.