As an undergraduate student studying Family Law, there was one key theme that was drilled into our already overloaded brains – namely that marriage is marriage, pure and simple. We were taught that it was not, and was never likely to be, identical to either cohabitation or civil partnerships in terms of the rights and responsibilities that it afforded. This is an area of the law that the public seems to be constantly challenging, and in my mind rightly so. There is clearly public opinion towards pushing the boundaries of the strict definition of marriage as being purely for opposite-sex couples, but how are the Government addressing this pressure, and are they really making the big changes they claim?
Marriage v civil partnership
Whilst taking a huge step towards the recognition of same-sex rights, equality wasn’t quite the result – true equality would mean opening up marriage itself to same-sex couples, rather than creating a similar but entirely separate (and exclusive) method of union for them.
Since that time, there has remained a strong argument towards making marriage available to same-sex couples as well, therefore possibly removing the need for civil partnerships altogether. This would mean true equality.In response to the increasing public pressure, Lynne Featherstone announced recently that there will be a formal consultation in Spring 2012 into the possibility of making civil marriage available to same-sex couples . The consultation would still only cover civil marriage for same-sex couples, it wouldn’t address the possibility of religious marriage.
It remains to be seen whether any consultation and resulting suggestions would be fully embraced by Government and pushed through as reform – there is clear support but also likely opposition from certain parts of the Government. Arguably, this wouldn’t be the first time that a consultation has been conducted in order to satisfy the public and media without any true reform taking place as a result (as you can see below).
Marriage v cohabitation
Despite a clear attempt at a move towards equality between same-sex and opposite-sex couples who wish to formalise their relationship, until recent times there has been little done to create equality between married couples and cohabiting couples. Perhaps it could be argued that this was a result of the lack of media attention on the matter, due to the mistaken public belief that cohabiting couples were somehow still earning the same rights as those awarded to married couples (the fictitious common-law marriage). However, if the Government is already making the move towards equality between same-sex and opposite-sex couples who marry or enter civil relationships, why not look to extend those rights to those who do not marry as well, whether it be by choice or through mistaken belief?
It is possible for cohabitees to enter into a cohabitation agreement, however, the courts are not obliged to follow the terms of these agreements when a relationship breaks down and property must be divided; they can be challenged if both parties do not receive sufficient legal advice before signing, or if it doesn’t meet certain legal guidelines. It also seems likely that couples who avoid marriage and its formalities might equally be reluctant to sign an alternative piece of paper giving them similar rights but without the title of marriage. These contracts are not hugely different from a normal everyday contract, and are considered to be between two non-related parties, therefore highlighting a remaining inequality even for those who do choose to create them.
Clearly, however, it would be difficult to pinpoint the exact stage at which a relationship could be considered as the having the same significance as marriage or civil partnership but without that particular label. Would it simply be when the couple begin to cohabit, as the name suggests? Or should there be a more detailed list of requirements to fulfil, such as the sharing of finances, or having children? It seems as though recognition of a cohabiting couple on the same terms as a married or civil partnered couple would likely still require some kind of paperwork or contract, and in many cases this is the aspect of marriage that the couple may be objecting to in the first place – the formalisation. A formalisation process or checklist would also not solve the problem of cohabiting couples who are completely unaware of their lack of rights.
There is clearly support for at least giving cohabitees a bundle of rights, if not the same rights as a married couple. Sir Nicholas Wall in particular has expressed his feelings on the matter, noting that, if allowed, judges could take note of the length of, and contributions made during, the cohabitation before making any decisions. This flexibility would allow the duration of cohabitation and other factors to be weighed appropriately in each case, maintaining fairness.
The Government didn’t act on the Law Commission’s suggested reforms on financial remedies for cohabiting couples in 2007, instead announcing that they wanted to wait and see what research in Scotland showed. This month, after a four year wait, it has been announced that the suggestions of the Law Commission will not be implemented after all, as it has been concluded that the Scottish research doesn’t warrant a change in English law. This has elicited a rather short reply from the Law Commission, reasserting the need for these reforms sooner rather than later.
Overall, therefore, reform to the rights for cohabiting couples has once again stalled completely, and we will have to wait until 2012 to see whether a civil marriage applicable to both same-sex and opposite-sex couples will be recommended. For the time being, marriage, civil partnership and cohabitation all remain as separate as ever, despite being three different but essentially similar relationships all showing commitment to a partner. Hopefully one day we will have a truly equal system, where any type of couple may have their commitment to each other recognised in a uniform way which is appealing to all.
-  Lynne Featherstone – View Website
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