Vardags Family Law Essay competition 2023/24 | Ella Keegans

Ella Keegans - Cardiff University

‘Is marriage necessary in the 21st century?’

In the case of Hyde v Hyde and Woodmansee, Lord Penzance held marriage to be “defined as the voluntary union for life of one man and one woman to the exclusion of all others”. However, given that this definition was given in the late 18th century, the law has indeed changed considerably since then. “Traditionally, marriage was the only accepted form in which an intimate adult relationship could be given legal recognition”, yet through the enactment of the Civil Partnership Act (2004) and the Marriage (Same Sex Couples) Act (2013), the state has broadened the scope of the law to allow for a more diverse range of relationships to be formally recognised. Arguments have been made that by introducing these changes, the state may as well have abolished marriages and civil partnerships in replacement for a new, more neutral formal agreement. This, indeed, would provide a more equal and accessible route for all types of relationships to take. However, I argue that such drastic change would involve mass statutory reform, which I believe Parliament does not yet have the time nor capacity to achieve. There is no denying that the Marriage Act (1949), the governing legislation that regulates marriage, is without flaws, nor does it truly reflect the needs and wants of today’s society. However, until Parliament ignites change and enacts satisfactory provisions to cover those relationships that fall outside the scope of the law, namely cohabitating couples, I argue that marriage is necessary. Therefore, this essay will seek to evaluate the benefits and negatives of marriage and compare why the institute of marriage offers individuals in the 21st century a more structured and stabilised union over those in cohabitating relationships.

Through the eyes of the law, those who are married can benefit from the status of ‘being married’. From a financial, property, and maintenance perspective, the legal remedies offered to those on a marital breakdown are unparalleled to those in cohabitating relationships. Under the Matrimonial Causes Act (1973) (MCA), both parties can receive various financial relief orders, from periodical payments to pension-sharing orders. Using a common example of where one party chooses to stay home and look after the children while the other goes out to work, the law on marital breakdowns protects both parties. Therefore, it mitigates the risk of leaving the economically disadvantaged party, namely the stay-at-home parent, in a financially damaging position. When contrasted with those who fall outside the protective realm of the law, namely cohabitating couples, on separation, “there is certainly no ‘divorce law equivalent”. “There is no duty to pay maintenance to a former cohabitant, nor to redistribute property between the partners”.

Due to a misconception known as the ’common law marriage myth’, many cohabitees are unaware of this, falsely believing that the same rights and protection afforded to married couples on separation are also offered to them. This is wrong and, indeed, untrue. A case which illustrates this unfortunate reality is Burns v Burns. The case involved a cohabitating couple who lived like a married couple for several years before separating. As they were unmarried, Mrs Burns was found to have no proprietorial interest in the home; strict property law was applied, leaving Mrs Burns with nothing. This case is a stark reminder of why marriage can be so important for protecting financial assets.

Furthermore, cohabitees have limited access to the financial relief to which spouses are entitled. For example, financial relief for cohabitees may only be applied for the benefit of a child, per the Children Act (1989). However, even then, “orders made for the benefit of the children of cohabitant parents are far less generous than the combined package awarded to the resident parent and children on divorce”. Therefore, separation for cohabitees is less structured and can result in an unequal division of finances.

In addition, marriage offers the chance for children of that marriage to experience a stable family dynamic while providing a safe, nurturing environment that may not be present in a cohabitating relationship. The validity of these statistics may be outdated, but studies have suggested that “70% of children born to married couples will live their entire childhood with both natural parents, whereas this will only be the case for 35% of children born to cohabitating couples”. Hence, I argue that marriage offers better protection to children than those from cohabitating relationships. This is reinforced through the considerations found under section 25(1) of the MCA. Before deciding how property and financial assets should be divided, the court must give first consideration to the health and welfare of any child of that family. In contrast, the welfare of children of cohabitees may be overlooked on separation due to the lack of legislative safeguards. Furthermore, unlike spouses of ex-marriages, absent cohabitating parents are under no obligation to pay maintenance or maintain a level of parental responsibility. Therefore, it is reasonable to assume that children of cohabitees could be negatively disadvantaged by separation more so than those from marriages.

Despite listing an array of benefits marriage can offer, couples across the country view other modes, such as civil partnerships and cohabitation, as the preferred form through which couples in the 21st century choose to facilitate modern- day relationships. This, therefore, has caused a decline in the number of marriages taking place. From giving notice of your intent to marry to the types of words which are to be included in your ceremony, the Law Commission has argued that the Marriage Act (1949), which contains these complex formalities, no longer appears to be working for modern England and Wales and evidently, “is not giving all couples a choice to marry in a way that is meaningful to them”. In 2020, the Law Commission described the current law as “an ancient and complex hodgepodge of different rules for different types of ceremonies” and argued that these “complexities are the product of historical policy choices, not current needs”. Therefore, it is understandable why many modern-day couples no longer view marriage as an imperative.

Marriage formalities are restrictive and unnecessarily complex. Due to the extensive requirements, from marrying in a registered building to giving notice of your intent to marry, many view marriage as a tedious, time-consuming process. Further, “if a couple fails to comply, either intentionally or without realising, with the legal requirements of a wedding, the law might not recognise them as being legally married”. Failure to recognise or discover ones lack of legal status could result in devastating, irreversible effects if one of the parties were to die or decide to separate.

Moreover, not only is securing a lawful marriage a meticulous process but so is dissolving one. Unless parties can achieve a voluntary agreement between themselves, which covers precisely what happens to their shared finances, advice from legal professionals must be sought to aid one’s separation. This can be costly and time-consuming. Moreover, until April 2022, divorce law was fault-based, whereby the applicant had to prove that the marriage had broken down irretrievably through using one of the five facts set out under section 1(2) of the MCA. This process encouraged blame pointing and promoted bitterness between ex-spouses.

With such intense, confrontational attitudes towards marital separation, it is plausible to see why many choose cohabitation. Separation of cohabitees offers a cheap, simplified process, along with the greater possibility of a civil ending. Finally, whereas it was traditionally recommended that a couple ought to be married before conceiving, “cohabitation is now an accepted parenting and partnering structure across Britain”, therefore, cohabitees with children no longer see the need for marriage when cohabitating is a widely accepted and deployed form of parenting.

In conclusion, in light of the recent Law Commission report, the UK government has recognised some of their recommendations. It has made alterations to where marriages can take place and has updated the way in which registration is accepted. This, I argue, can be seen as a positive step forward to ensuring a more modernised approach to marriage. However, although cohabitation is an ever- growing form in the 21st century, due to a lack of legislative provisions, creating a statute that covers every kind of cohabitating relationship has proven difficult. Thus, marriage is necessary, as the law does not yet “cater for relationships that do not fit neatly within the traditional model of family building within marriage”.

The law of marriage may indeed still be running on outdated mechanics which no longer align with societal needs, but until legislation is introduced to protect cohabitees, “marriage might well be an unnecessary legal concept, but it still continues to be a convenient legal concept”, which seeks to “perform certain crucial functions better than other arrangements”, namely certainty, security, and stability.

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Bibliography:

Cases

• Burns v Burns [1984] Ch 317
• Hyde v Hyde and Woodmansee [1866] LR 1 P&D 130

Legislation:

• Children Act (1989)
• Civil Partnership Act (2004)
• Marriage (Same Sex Couples) Act (2013)
• Marriage Act (1949)
• Matrimonial Causes Act (1973), s.1(1), s.1(2), s.25(1)

Bibliography:

• Barlow A and James G, Regulating Marriage and Cohabitation in 21st Century Britain (Modern Law Review, March 2004) vol 67, No2
• Law Commission, Getting Married: A Consultation Paper on Weddings Law, Consultation Paper No 247 (September 2020 [last accessed 04/04/2022]

Lowe N, Et al., Bromley’s Family Law (12th edn) (Oxford University Press, 2021)

• Probert R, Cohabitation: Current Legal Solutions (Current legal problems, 2009, vol 62, issue 1)