Regulating Marriage and Cohabitation in 21st Century Britain

DOIhttp://doi.org/10.1111/j.1468-2230.2004.00482.x
AuthorGrace James,Anne Barlow
Publication Date01 Mar 2004
THE
MODERN LAW REVIEW
Volume 67 March 2004 No 2
Regulating Marriage and Cohabitation in 21
st
Century
Britain
Anne Barlow
n
and Grace James
nn
This article assesses the legal regulation of marriage and cohabitation in Britain and outlines a
growing need and de sire for the currently confused law to be amended despite what has be en
termed ‘the normal chaos of family law’. It adds to the topical debate about ‘couple regulation
and argues that law shouldprotect the function rather than the form of relationships.This argu-
ment is supported by recent Nu⁄eldFoundation funded research, which draws on a majoratti-
tudinal survey of over 3000 respondents’ views about marriage, cohabitation and the law and a
number of in-depth interviews with current and formercohabitants. This research supports the
view that cohabitation is now an accepted parenting and partnering structure across Britain, and
that this ought to be re£ected in a ‘re£exive’approach to legal regulation in this sphere.
INTRODUCTION
Whilst the social acceptanceof heterosexual cohabitation as a parenting and part-
nering structure on a par with marriage has been achieved almost universallyover
the last twenty years in Britain,
1
the uniform extension of marriage-like legal
rights to those who cohabit and perform marriage-like functions is still the sub-
ject of intense policy debate on which there is no real consensus. Despite clear
social trends showing a decline in the numbers who marry and an i ncrease in
those who cohabit,
2
the legal vulnerability of cohabiting families continues to be
addressed only through ad hoc, pi ecemeal reforms which have left the law in a
state of confusion, uncertainty and complexity. Even this approach seems now
to have foundered, with the Law Commission’s recently published discussion
n
Senior Lecturer in Law, Universityof Wales, Aberystwyth.
nn
Lecturer in Law,University of Reading.
1 See A. Barlow,S. Duncan, G. James and A. Park,‘Just a piece of paper? Marriage and cohabitation
in Britain’ in A.Park, J. Curtice, K.Thomson, L. Jarvis and C.Bromley (eds), British Social Atti-
tudes:The18thReport ^ Public Policyand SocialT|es (London: Sage, 2001) 29.
2 The percentage of married women in the British population decreased between 1979 and 1995
from 74per ce nt to 56 per cent; the marriage rate is at its lowest ebb since records began (fewer
than 300 000 marriages per year with only just over half of these being ¢rst marriages) (Social
Tr e n d s 3 3 (London:The Stationery O⁄ce,2000)). Most recent statistics show thatdespite a r ise of
1.7per cent in 20 00 the long-termdownward trend continues.There were 249 227 marriages in
England and Wales in 2001, a fall of seven per cent from 2000 and the lowest annual number of
marriages since 1897. Meanwhile, 25 per cent of all non-married adults aged between 16 and 59
currentlycohabit (SocialTrends 33 (London:The Stationery O⁄ce, 2003)).
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(2) MLR143^176
paper Sharing Homes
3
identifying major problems, yet ¢nding it impossible to re-
commend a better approach to the regulation of rights of cohabitants and other
‘homesharers’in the family home. However, its conclusions con¢rm the need for
consideration of further relationship-based (rather than property law-based) re-
form:
[I]t is not possible to devise a statutory scheme for determination of shares in the
shared home which can operate fairlyand evenly across all the diversec ircumstances
which are now to be encountered y
Weaccept that marriage is a status deserving of special treatment. However, we have
identi¢ed, in the course of this project, awider need for the law to recognise and to
respond to the increasing diversityof l ivingarrangements in this country.We believe
that further consideration should be given to the adoption ^ necessarily by legisla-
tion ^ of broader based approaches to personal relationships,such as the registration
of certain civil partnerships and/or the imposition of legal rights and obligations on
individuals who areor have been involvedi n a relationship outside marriage.
4
There have already been two legislative attempts at introducing a European-style
Civil Partnerships Registerextendi ng to bothopposite - and same-sex cohabitants
in England and Wales, although neither had government backing nor was likely
to reach the statute book directly.
5
The recent government Consultation Paper,
Civil Partnership: a framework for the legal recognition of same-sex couples,
6
now proposes
a marriage-model Civil Partnerships Register which, unlike the models put for-
ward in the two Bills, is restricted to s ame-sex couple s. Ironically, it appears that at
least in England andWales,
7
it may be politically easier to reform the law relating
to same-sex cohabita nts alone ^ a group less socially accepted although admitte dly
morediscriminated against than their opposite-sex counterparts ^ than it is togive
even opt-in marriage-like rights to heterosexual couples who live together.
8
In light of these developments, this article aims to inform the on-going debate
about ‘couple regulation’ and explore the options for reform of cohabitation
law availableto policy makers.This is done against the backdrop of academic dis-
cussion
9
inwhichfamilylawhasbeenheldupbyDewar
10
as an exemplary case
3 Law Commission, SharingHomes:A DiscussionPaper (London: LawCommission forEngland and
Wales,July 2002).
4Ibid,vi.
5 The Relationships (Civil Registration)Bill 2001, aprivate member’s Bill introduced by Jane Grif-
¢ths MP but subsequently lost; and the CivilPartnerships Bill 20 02,introduced in the House of
Lords by Lord Lester but withdrawn pending the investigation of a Cabinet O⁄ce Working
Grouphe aded byBarbara Roche (the then Minister for Equality) into the issue ^ see government
announcement at http://www.news.gov.uk/output/page985.asp (last visited15 September 2003).
6 London: Department of Tradea ndIndustry,Womena ndEquality Unit, June 2003.
7 Both Scotland and Northern Ireland, on the other hand, are more focused on opposite-sex
couples in their very di¡erent proposals for reform. See Scottish Executive, Parents and Children
(Edinburgh: Scottish Executive, 2000) and Law Reform Advisory Committee for Northern
Ireland, Matrimonial Property LRAC no 8 (Belfast:LRAC, 2000).
8 See C.Dyer,‘Newlegal rightsfor gay couples’The Guardian 7 December 2002.
9 It is the authors’ intention in this article to focus primarily on the policy arguments concerni ng
law reformin thi s area revealedby our empirical study andwe intend the ful l impactof our ¢nd-
ings on the relevant theoreticaldebates to be more fully exploredi n a separatearticle.
10 J.Dewar,‘The Normal Chaos of Family Law’ (1998) 61MLR 4 67, 470.
Regulating Marriage and Cohabitation
14 4 rThe Modern LawReview Limited 2004
of Galanter’s
11
‘new legalism’. This is a concept identifying a new phenomenon
within legal systems in which modern law absorbs materials or information from
other disciplines, thereby abandoning its legal distinctiveness and which charac-
teristically prefers to operate through ‘indirect symbolic controls’ which ‘radiate
messages’ rather than attempting direct coercion.
The ¢rst section highlights the confused nature of the relevant law, providing
the legal background within which relevant family law policy is debated. Draw-
ing on recent empirical research funded by the Nu⁄eld Foundation
12
into atti-
tudes to marriage, opposite-sex cohabitation and the law, we then demonstrate a
wider need anddesire for lawreform.Whilst mindfulof the criticisms and limita-
tions of empirically driven family law reform,
13
we argue that notwithstanding
what Dewar has termed‘the normal chaos of family law
14
(whereby we should
not expect family lawbe anything other than incoherent given it is dealing with
an area of socialand emotional life itself ridden withparadox and contradiction,
15
and given that such lackof coherence may often be politically convenient), legal
regulation in this sphere should be guided by a family’s function rather than its
form if the functions of family law itself are not to be rendered obsolete. This
argument is developed in the ¢nal section of the article as a necessary means of
reconciling diverging social and legal norms. It concludes with an assessment of
the various options for reform available and considersthe way ahead for cohabita-
tion law in 21
st
century Britain.
THE PROBLEMS WITH COHABITATION LAW
Perhaps the most obvious problem with this areaof law is that whilst heterosexual
cohabitation may in certain situations confer legal rights, there is no universal de-
¢nition of cohabiting relationships which confer legal status. Broadly speaking
inclusion has been reserved almost exclusively (at least until very recently) for
the most marriage-like relationships, where a man and woman are living together
as husband and wife’ usually within a shared household, often for a minimum
prescribed period of time and where there is or has been sexual intimacy.
However, whether or not you are considered a cohabitant will depend on
the statutory or judicial de¢nition of cohabitation adopted in the context in
11 M. Galanter,‘LawAbounding: Legalisation around the NorthAtlantic’ (1992) 5 MLR 1.
12 This interdisciplinary project was directed byAnne Barlow,University of Wales, Aberystwyth,
Simon Duncan, University of Bradford and Alison Park, National Centre for Social Research.
Grace James, now of University of Reading, was the project’s Research Fellow.The study was
undertaken in three stages. First a module of questions on marriage, cohabitation and the law
was asked of a nationally representative sample of 3 101 respondents in England andWales as part
of the British Social Attitudes Survey (BSA)200 0 andof 1 663 respondents in Scotland as part of
the separate Scottish Social AttitudesSurvey (SSA) 20 00. A follow-up in-depth study of 48 cur-
rent and formercohabitants drawn from the national sample in England andWales was then un-
dertaken.The in-depth study was later extendedto two ‘snowball’samples of Afro-Caribbean and
South Asian respondents who were under-represented i n the initial in-depth study.
13 See for example, R. Deech, ‘Divorce Law and Empirical Studies’ (1990) 106 LQR 229 and
M. King and C. Piper, Howthe LawThinks about Children(Aldershot: Arena, 2
nd
ed,1995).
14 J. Dewar, n 10 above.
15 Ibid, 468^469. For the sociological basis for this argument see U. Becka nd E. Beck-Gernsheim,
The Normal Chaos ofL ove(Oxford: Polity,1995).
Anne Barlow and Grace James
145rThe Modern LawReview Limited 2004

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