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Vardags Family Law Essay competition 2023/24 | Chloe Wan

Chloe Wan - University of Kent

Introduction

Influenced by modern development, shifts in societal trends, and the emergence of non-traditional families, family law has been an area of law subject to constant reform. Adapting to changing public mores, judicial attitudes and policies have been substantively altered over the past decades.

In Britain, families appear in infinite varieties and forms. For example: spouses married under Christian faiths, same-sex couples living together as cohabitants, children living in unmarried households… Increasingly more families fall outside what used to be considered the traditional nuclear family. Although families in society hold strikingly different views, all should be afforded greatest respect to uphold individual autonomy. Yet, unsatisfactory legal regulations do not reflect these developments, leading to discrimination against specific populations. With rights and interests being neglected, this writing argues that cohabitation and religious marriages are inadequately protected by the law.

The first section of this writing addresses the unfavourable legal situation for cohabitants, noting their vulnerability which can be worsened by the parties different bargaining powers. The second section analyses the concept of religious marriages. In Tousi v Gaydukova 2023, a case relating to non-qualifying marriage ceremonies, marriage law was criticised for being a disreputable mess. The final section shall analyse the Law Commissions proposed opt-out scheme, finding that reform to cohabitation law could also act as a safety net for parties who have entered a non- qualifying marriage.

Cohabitation

Cohabitation is an arrangement where couples (who are unmarried, nor in a civil partnership) live together. With 18.6% of families in the UK being cohabiting couples, it is an increasingly popular option amongst households. However, cohabitation is problematic as many parties involved are unaware of the lack of legal protections following relationship breakdowns. A study conducted in 2019 reflected that 50% of people wrongly believed in the myth of a common law marriage – the idea that after cohabitating for specific periods of time, couples are treated as if they were legally married. However, cohabitation does not afford the same legal protection as marriage (and civil partnerships). For example, where a marriage breaks down, spouses are entitled under the Matrimonial Causes Act 1973 to financial support and proprietary interests. None of which are available to unmarried cohabitants.

In Burns v Burns 19841 Ms Burns had lived with her partner for 19 years and they had 2 children. As she was unmarried and did not contribute to the propertys mortgage payment, the court dismissed her appeal for an interest in the family home. This is substantially unfair, especially given the division of roles within families. Some individuals are forced to take on more domestic duties and childcare obligations, inevitably resulting in their weaker and more dependent financial situation. Given the gender inequalities that continue to exist in modern society, it is undoubted that there are other individuals in a similar position as Ms Burns.

In his speech, Tim Loughton advocated for better support to cohabitants, reasoning simply that: there are now 3.3 million unmarried couples in the UK, living together with shared financial responsibilities and over half of them with children. They need protection. Whilst current law offers limited support to cohabitants through means of property, trusts, and contract law, these are insufficient in protecting cohabitants interests. These laws were not legislated or decided with family law in mind, and they are not a right fit to address cohabitation issues. They are complex, uncertain, and expensive to rely on, often leading to unjust outcomes. This permits hardship towards many cohabitants upon separation, and consequently children where they are involved.

Superiority of marriage over cohabitation exists in England and Wales, which is evidenced by the numerous marriage legislations. Justifying the lack of intervention and protection for cohabitants, the law adopts reasonings which relate to the upholding of individual autonomy. As cohabitants have not given each other the commitment of marriage, the law is keen not to intrude in their private lives. Although acknowledged that cohabitants are more vulnerable than spouses, the Government continued to reiterate that couples desiring legal protection needed to marry. Supporting marriage greatly, it seemingly condemns cohabitants for their conscious choices, stating that their vulnerability is self-inflicted and could simply be avoided by marrying.

The dominant construction of the cohabitant is that of an ideologue – someone who voluntarily objects to marriage. However, the lived reality that some cohabitants are unable to marry due to personal circumstances and practicality must not be ignored. In some cases, one individual may wish to marry but the other may remain uncooperative. (This will be discussed in further detail in relation to religious marriages). Concluding on cohabitation: the current law is discriminatory and unfair. There is no justification for penalising couples who choose not to marry. Better legal rights for cohabitants are thus needed to correct present regulations which are plainly inadequate.

Religious Marriages

Having assessed the vulnerability of cohabitants and the need for reform, this section focuses on the issues which could arise with religious marriages. In England and Wales, marriage laws can be traced back to a Catholic origin, resulting in present laws favouring Christian over other forms of religious marriages.

Currently, the laws governing marriage are found under the Matrimonial Causes Act 1973, section 11. To be a legally valid marriage, the ceremony must conform to required formalities, such as requiring a licensed registrar and an approved premise. Whilst religious marriages can be captured under the current statutes, their requirements are more complex than those for civil marriages, this imposes additional barriers to minority communities who seek a legally valid marriage.

Vora states that although it is not difficult to get married validly, the required formalities have indirect discriminatory impacts on a sizeable number of religious couples. It is more often that minority religious marriages are caught out by these regulations. A ceremony that fails to meet the formal requirements results in the marriage not being legally recognised- often termed a non-marriage. It is problematic as it contradicts the parties intentions, conferring injustice and unfairness to minority cultures and populations.

This writing now turns to survey a range of case law, which reflects the discriminatory nature of current law. Gandhi v Patel case was a Hindu wedding ceremony which was conducted by a Brahim priest but subsequently found to be a non-marriage. Although religious marriages are recognised under their own cultural traditions, there are no means of legal enforcement under English law. Following Hudson v Leigh, there was subsequent acknowledgement that many minority ethnic groups go through a religious ceremony without realizing its non-legal nature.

Furthermore, many individuals do not appreciate the consequences of this lack of legal status. They will be treated as legal strangers under the law, leaving them unable to access financial support, nor legal remedies for the equal division of assets. This writing supports Probert and Saleems argument that marriage laws need to evolve to accommodate minority marriage practices. Especially given changing social norms and competing policy objectives.

In Akhter v Kahn, the couple entered a religious marriage, had children, and lived together for 18 years. They knew their marriage did not comply with the legal requirements but failed to conduct an additional civil marriage. Whilst the High Court recognised the substantial unfairness on the weaker bargaining party, the Court of Appeal nonetheless overruled their decision. Finding that the High Court had overstepped their judicial discretion by considering articles under the ECHR, the parties were held to be cohabitants without access to legal remedies.

This review of cases reflects the ignored reality of vulnerable parties in religious marriages, which often presents itself in the form of gender inequality against women. Where a couple has children, the gendered dimension becomes more obvious, whereby womens opportunities are shaped by their status as parents. Unpaid care work and domestic chores are often central to womens experiences. Resulting from social stigma attached to the role which women play in the family, they are often less financially independent. Thus they are severely disadvantaged when religious marriages fall apart. This detriment is only exacerbated when there is deliberate deceit and control by the spouse. If they sought out a religiously valid status to circumvent the marriage law regime and safeguard their own assets, they are unlikely to agree to a subsequent civil marriage.

The complexity of current rules in England and Wales have led to indirect discrimination towards minority religious communities. Although it is not difficult to get married, the intricacies of legal regulations are not supportive nor reflective of the diverse populations in contemporary society.

Having analysed the concepts of cohabitation and religious marriages, it is identified that parties under such arrangements are treated as legal strangers. Current family law requires reform as it discriminates against minority ethnicities and refuses to extend legal protections to vulnerable parties who are often women. The next section looks at the proposed opt-out scheme. Although designed with cohabitants in mind, the writing argues that it is equally capable of safeguarding the interests of religiously married couples who have lived together for some time.

Opt-out Proposal

Australia has previously introduced schemes which offer financial relief to cohabitants—this writing suggests that something similar ought to be implemented for England and Wales. Although rejected by the Government in 2011 and more recently in 2022 due to prioritisation on marriage and divorce law reform, this writing recognises the merits of the Law Commissions opt-out proposal and supports its implementation.

The purpose of the proposal is to support cohabitants (including those under religious marriages) and their children by ensuring a fairer division of benefits and assets between vulnerable individuals upon relationship breakdown. To qualify for this protection, there are three factors to satisfy: Firstly the couple must have lived together for a minimum duration or had a child together. Secondly, the couple must not have opted out of the scheme. Finally, the applicant must have made qualifying contributions to the relationship which gives rise to certain enduring consequences at the point of separation.

This proposal is based on an opt-out scheme, which would effectively act as a safety net, protecting those who are unaware of the consequences of legal marriages, cohabitation, and non-qualifying religious marriages. The Law Commission was correct in rejecting an opt-in regime, where individuals are not granted automatic rights. Hayward stated that an opt-in scheme would not respond to the economic vulnerabilities faced by cohabitants as couples have the possibility of opting into marriage. Furthermore, a requirement to opt-in will pose difficulties to women in coercive or oppressive relationships, being unable to oppose their partners wishes. An opt-out scheme which grants default rights to those satisfying the requirements thus offers adequate protection and fairness to individuals experiencing relationship breakdowns.

However, there are still concerns and oppositions towards the proposal, one main argument is the possibility of infringing cohabitants autonomous decision-making. Deech identified that such a proposal invades privacy and intrudes upon the corner of freedom available to couples that do not want their relationships regulated by the state. The proposal would inadequately dissect and depict interpersonal commitments, sometimes in ways which may not be agreeable with parties, thus infringing their autonomy. Addressing this, the Law Commission has given parties the option to opt-out and make their own financial agreements independently. Thus a balance is struck between protecting vulnerable cohabitants and upholding the autonomy of individuals.

Some may find this proposal unsatisfactory as the protections offered to cohabitants are inferior compared to those granted to legally married spouses. However, this writing supports such an approach: parties who are not committing to marriage should not be imposed with the full sets of rights and obligations which are conferred upon spouses. It is important whilst protecting cohabitants to distinguish between the different family constructs.Overall, given that the proposal offers greater recognition and protection to diverse non-traditional families, the opt-out scheme ought to be adopted.

Conclusion

This writing has analysed the concepts of cohabitation and non-religious marriages, finding them unsatisfactory due to their discriminatory and unfair nature. Identifying the need for reform, the opt- out proposal was considered. Finding that it could circumvent the unjust current law and offer better protection to non-traditional families, this writing concludes by supporting the implementation of the Law Commissions proposal.

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Bibliography

Articles:

Andrew Bainham, Changing Families and Changing Concepts – Reforming the Language of Family Law [1998] CFLQ 1 (2018) Child and Family Law Quarterly.

Andy Hayward, The Steinfeld Effect: Equal Civil Partnerships and the Construction of the Cohabitant. (2019) 31 Child and Family Law Quarterly.

Anne Barlow and Janet Smithson, Legal Assumptions, Cohabitants Talk and the Rocky Road to Reform (2010) 22 Child and Family Law Quarterly.

Anne Barlow, Solidarity, Autonomy and Equality: Mixed Messages for the Family? [2015] Child and Family Law Quarterly.

Hansard, Civil Partnership Bill [H.L.] (Hansard, 22 April 2004) (api.parliament.uk2004)

Hansard, Civil Partnerships Bill [H.L.] (Hansard, 25 January 2002) (api.parliament.uk2002) accessed 24 January 2024.

James Munby, Changing Families: Family Law Yesterday, Today and Tomorrow - a View from South of the Border (2018) 48 The Family in Law 538.

Julie E Artis and Andrew V Krebs, Family Law and Social Change: Judicial Views of Joint Custody, 1998–2011 (2015) 40 Law & Social Inquiry 723.

Law Commission, Cohabitation: Financial Consequences of Relationship Breakdown: Executive Summary, Consultation Paper 307 (2007).

Looking for a Family Resemblance: The Limits of the Functional Approach to the Legal Definition of Family (1991) 104 Harvard Law Review.

National Centre for Social Research, Almost half of us mistakenly believe that common law marriage exists, (2019).

Nicole Busby and Grace James, A History of Regulating Working Families: Strains, Stereotypes, Strategies and Solutions (2021) 35 International Journal of Law, Policy and the Family.

Office for National Statistics, Families and Households in the UK - Office for National Statistics

Practical Law, Cohabitation (Practical Law2024) accessed 24 January 2024.

Rajnaara Akhtar, Modern Traditions in Muslim Marriage Practices, Exploring English Narratives (2018) 7 Oxford Journal of Law and Religion 427

Rebecca Probert and Shabana Saleem, The Legal Treatment of Islamic Marriage Ceremonies (2018) 7 Oxford Journal of Law and Religion 376.

Ruth Deech, The Case against Legal Recognition of Cohabitation (1980) 29 International and Comparative Law Quarterly 480.

Suhraiya Jivraj, The Religion of Law: Race, Citizenship and Childrens Belonging (2014) 16 Ecclesiastical Law Journal 229.

Tim Loughton, Are we serious about protecting children? (Bright Blue 2018.

Vishal Vora, The Continuing Muslim Marriage Conundrum: The Law of England and Wales on Religious Marriage and Non-Marriage in the United Kingdom (2020) 40 Journal of Muslim Minority Affairs 148.

Vishal Vora, Unregistered Muslim Marriages in the United Kingdom (2019) 49 Studies in Islamic Law and Society 43.

World Economic Forum, Global Gender Gap Report 2023 (World Economic Forum20 June 2023)

Cases:

Akhter v Khan [2020] EWCA 122. Burns v Burns [1984] Ch317.

Fowler v Barron [2008] EWCA Civ 377. Gandhi v Patel [2002] 1 FLR 603.

Hudson v Leigh [2009] EWHC 1306.

Tousi v Gaydukova (Revi) [2023] EWHC 404.

Legislations:

Marriage Act 1949, s49. Matrimonial Causes Act 1973.

 

 

 

 

 

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