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Vardags Family Law Essay competition 2023/24 | Bethany Jagger

Bethany Jagger - University of York

Should cohabitating partners rights be formalized in the same way as those who are married?

The decrease in marriage rates,in combination with the increase in cohabitating partners in our contemporary society has attracted considerable criticism on the perceived outdated and discriminatory nature of the current framework in the UK. This framework does not afford the equivalent protections to cohabitating partners as those given to spouses. Consequently, a call for the institutionalisation of this form of family has gained traction within government. The primary impetus for said reform is the argument that the lack of legal recognition of this type of family relationship fails to safeguard the rights of individuals, thereby substantiating claims of discrimination. This assertion is made, for the most part, in reference to women. However this essay endeavours to challenge the aforementioned conclusion. This will include discussion pertaining to individualism, the desire to live outside of legal obligation and public perception of the current system. Thus, this essay will argue that a non-conscriptive approach to extra-marital relationships is more appropriate than a proposed regime which is parallel to that of the rights and responsibilities attained through marriage.

Individualism

The first topic of discussion within this essay is individualism and how this theory justifies the lack of regulation surrounding cohabiting couples. Individualism emphasises the right to be independent and self-determining. Further, it promotes autonomy by discouraging any unnecessary intervention by the state. This applies to cohabitation as there have been criticisms that there is too much state control regarding family life through a modicum of references to nannying by the government. Therefore, through limiting the legal consequences of cohabitation, people are able to exercise their independence. In further explanation of this, the non-regulation of cohabitation ensures individuals are not pressurised by obligations conferred by their living arrangements which would be present if the law regarding cohabitants were to be likened to marriage. However, this has been argued against by Herring with the notion that individual conceptions of autonomy have no place in family law, on the premise that they are inconsistent with the realities of family life. However, this can be countered due to the fact individual autonomy plays a key role in the lives of cohabitants. An example of this is their choice to cohabit as oppose to marriage. Through a lack of state intervention cohabitants are able to live without the prospect of majoritarian values, such as the dominant interests in the UK in favour of marriage, being imposed upon them. Thus, it is evident that the basic ideas of individualism, such as independence and self-determination, are reflected in non-intervention by the state towards cohabitation and therefore the conception of autonomous individuals is consistent with reality for cohabitants.

Now that this essay has established the relevance of individualism to cohabitants, the theory can be used as a defence to claims that non-regulation is discriminatory. The lack of formal protections afforded to cohabitants has spurred the argument that women disproportionately suffer at the hands of an absence of legislation. Women have been described as being left virtually destitute following the split from their partner, with critics deducing that this eventuality arises from a failure from the government to institutionalise a rulebook, governing asset distribution upon cohabitants separation. The implication here is that affording protection parallel to that in marriage, be that through legislation, or through ensuring equality through other means such the approach in the significant case of White v White, would prevent said discrimination from occurring. However, the notion this essay supports is that women inherently suffer at the hands of institutionalisation and therefore extending this to cohabitation would only reinforce this. Individualism lends itself well to this argument as by its very nature desires to achieve the emancipation of women. In further explanation of this, individualists would likely take the perspective that there should be a level of dubiety when it comes to solely treating the family as a unit as they are a collection of individuals. The family unit can be subject to criticism due to the mechanics facilitating the marginalization of women . This is because the needs of the less prominent members, often the women, are suppressed in comparison to the priority given to the head of the household which is frequently the title awarded to the man in heterosexual relationships. Therefore, through perceiving womens individuality within their family they are encouraged to have autonomy, particularly in respect of their finances. An example of this is that through the current non-regulatory approach women are able to split expenses as opposed to pooling funds with their partner. The making of marriage and cohabitation analogous, in reference to their rights and obligations, would threaten this as womens rights would no longer be kept separate from her partner. This would encourage the further extension of the term family unit to describe couples who cohabitate and discourage womens sense of personal agency. Therefore, there should be scepticism when pushing for regulation on cohabitation as it may serve as a means of reducing womens opportunity for self-determination. Thus, the current framework should not be regarded as discriminatory solely on the basis of the disproportionate outcomes that may ensue post-split, as the current laissez- faire approach allows women to maintain a certain level of independence from their partners and preserve as much freedom as possible.

Following the above discussion on individualism and its fundamental role in cohabitees relationships, it is necessary to further evaluate this claim in order to effectively challenge the accusation that the non-regulatory framework is discriminatory. It has been established that applying the same rights acquired in marriage would not encourage the perception of women as autonomous individuals. However, another point to be made is that regulation on cohabitation would further reinforce the regrettable societal view that the value of women, notably within the labour market, diminishes upon the moment they enter into a partnership.This can be equated to marriage due to its patriarchal origins, with the fundamentals being that a woman is to be the weaker person of the partnership. To explain this, it is possible that if protections were to be afforded that are similar to those afforded to a spouse, it would reinforce the notion that once a woman has cohabited with a man her ability to self-support is unrealistic or at best harmed. This conclusion is reached on the basis that a woman would be perceived to require the protection of the court in order to avoid exploitation and/or discrimination. This is because, as the law is to be a reflection of societal values, as long as legislation upholds the expectation that women are dependent upon men this will serve as a barrier to their full acceptance in the labour market. Further elucidating this point, to equate cohabitation laws to marriage laws would be to suggest that upon cohabitation there is a trade of jobs ,whereby there is to be payment to reflect this following separation. This encourages the outmoded perspective that women are to be responsible for domestic services. Therefore, this outdated view which can be said to be present in modern marriage law, should not be applied to unmarried persons following reasoning that already existing weaknesses in the law should not be extended to cohabitants. Thus, the law should seek to endorse the notion that women can be self-sufficient as opposed to reinforcing the narrative of their co-dependency.

Perception

Perception of cohabitants, by those involved in the relationship, as well as outsiders poses a problem when discussing the introduction of a regulatory framework. There are two elements forming this argument. One relates to the misconception amongst cohabitants of their rights, and the second, how the government perceive relationships of cohabitation.

Firstly, it is necessary to discuss how there is a widespread issue in the UK whereby people believe they are in common law marriages by way of their cohabitation with a partner. The statistic for this in 2022 established that 46% of those living together were susceptible to this belief, with the number increasing to 55% where the couple have children together. This is reflective of the way in which policies, particularly in the family realm, operate on two levels. This is the level of facts vs the level of perception. This concept leads to encouragement of legislation as it can be argued that those who do not marry, abstain from doing so on the belief that their rights are already protected, an inaccurate assertion. However there is an argument to be made that this injustice is not felt by those involved until the relationship has ended, and therefore it is unlikely that this is a deciding factor in the minds of cohabitants when deciding against or delaying marriage. Therefore, it is necessary to look at the reasons for why people do not marry in order to understand why this decision is made. Only then can it be understood why a non-conscriptive approach to cohabitants is the most appropriate. One of these reasons can be attributed to the uncertain nature of relationships and thus exists the desire to maintain one outside of legal obligations. It is on this basis that failing to legally recognise cohabitation renders it more attractive than marriage for many. This is because a clean break can be made more readily available. This justifies why the misconception amongst the public of a common law marriage does not enforce that this should be mirrored in our legal framework as the reasons for which people refrain from marriage, as stated above, should not be imposed upon them simply due to public misconception. Here, the argument in respect of discrimination stipulates that the aforementioned statistic ensures that women, as the party with the perceived lower bargaining power, are not protected. This is exasperated by the widespread misconception of their rights. However, to oppose this, the aforementioned arguments in favour of individualism are to be considered. Further, it is important to give women the choice to not be constraint to marital style obligations by way of cohabitation, as there may be an abundance of reasons for which they did not choose to marry.45 Examples of this include the desire to live outside of legal obligations, their own family history or simply personal choice. Thusly, despite the misconception in the UK alluding to a common-law marriage, this is not to say people do not make reasoned decisions regarding their relationships and that enforcement of regulation would only further justify nanny state accusations.

In order to fully assess perception of cohabitation it is necessary to also discuss government perception. This forms the argument that there is not a level sufficient understanding of these relationships held by the government in order to legislate on such matters. This is because there are varying levels of emotional commitment amongst cohabitors, such as a causal relationship or an alternative to marriage. Therefore there are nuances to the potential of regulating cohabitation, asking questions of how we would define something which is dynamic in nature. Considerations have been made to factors which ought to define cohabitants relationships, such as those laid down in Crake [1981] however these fall short of enough detail to implement legislation which would encompass all the possible components of a relationship between cohabitors. As cohabitation is a complex, social phenomenon it is not desirable to enforce knee-jerk legislation on the basis that cohabitation rates are increasing at pace. It would be a naïve assumption to consider the enforcement of legislation without considerable research into the nature of cohabitant relationships, as opposed to legislating based upon guess-work. Thus, this puts forward an argument which illustrates the impracticality of enforcing regulation on a relationship which is not consistent with the conception held by the government of the traditional family.

This essay has sought to oppose the opinion that there is a responsibility upon the government to enforce regulation regarding cohabiting partners. This has been argued against by using the social theory of individualism as a justification for why non-regulation is best suited to this type of relationship. Further, this essay has discussed the public misconception of cohabitation rights and explained why this is not sufficient reasoning for enforcing legislation on the matter. Finally, there has been discussion owing to the lack of understanding relating to the nature of cohabitor relationships. Thus, considering the above, this essay has reached the conclusion that a laissez-faire approach to cohabitation is the most appropriate.

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Bibliography

Table of Authorities

Cases

  • White v White [2001] 1 AC 596
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