Vardags Family Law Essay competition 2023/24 | Girish Sirwani

Girish Sirwani - University of Bristol 

Is marriage necessary in the 21^st century?

Traditionally, the law in England and Wales only recognised marriage as an acceptable form of intimate relationship between adults. Increasingly, however, there has been a willingness amongst couples in the UK to enter into other forms of relationship, such as cohabitation. This rise in cohabitation in the 21^st century, coupled with the declining popularity of marriage, would suggest that marriage is an “unnecessary legal concept” and that it should no longer be relied upon. However, this argument is inaccurate. Despite the falling trend in marriage, marriage is a necessary institution that should be protected because: (a) it provides couples with extensive legal rights, (b) facilitates the state’s role in regulating family life, (c) provides couples with ‘autonomy’, (d) encourages the stability of society and (e) guarantees social acceptance.

Legal Protection

Marriage is necessary for couples because it provides them with extensive legal rights and special legal treatment, which other forms of adult relationships cannot provide unless and until the current law on cohabitation, for instance, were to be reformed. For instance, with regard to financial support, spouses and civil partners can apply for a court order requiring one to pay maintenance to the other either during the relationship or on its breakdown. However, an unmarried cohabitant cannot provide maintenance to another. Furthermore, the court can redistribute property owned by either party on divorce or dissolution, but the court has no power to do so on the breakdown of an unmarried relationship. Instead, cohabitants must rely on property law principles to resolve disputes over property. Though the court has wide discretion by looking at the express or inferred intentions of the parties, these property rights are nonetheless of limited use since such intention is difficult to prove, and the outcome of such disputes is usually “uncertain” with the “the cost of litigation [being] prohibitive”. These stark differences in the legal treatment of married and unmarried couples highlight the economic vulnerability of cohabitants, particularly on relationship breakdown. This vulnerability is further amplified by the prevalent ‘common law marriage myth’. This is because couples who believe that living together enables them to acquire the same legal rights as married couples or civil partners are unlikely to safeguard their legal position (i.e. by making a declaration of trust when purchasing property) and will, therefore, remain unprotected and susceptible to economic hardship, particularly women. Therefore, given the limited legal rights available for couples under the existing law of cohabitation, it appears that marriage is currently the only institution that couples can rely on to enhance their legal position. Therefore, marriage is a necessary mechanism for achieving extensive legal protection.

State Convenience

Dewar’s belief that marriage is a “convenient conceptual device” also lends support to the argument that the institution of marriage is necessary. This premise primarily derives from the fact that the state can regulate the relationship of married couples on breakdown since it knows the legal duties that each party owes to one another, unlike in the case of unmarried cohabitants. Therefore, marriage is useful because it enables the state to regulate family life easily. Furthermore, marriage remains the most common family type, representing two-thirds of families in the UK, despite the gradual decline in popularity. Therefore, it would be inconvenient for the law to eschew reliance on marriage considering the prevalence of married couples, and it would also be burdensome for the state to then find an alternative mechanism that can legally regulate family life in a way akin to marriage, particularly since there would be a need to satisfy and reassure the numerous married couples who voluntarily chose to get married that their legal position would be unaffected under a new mechanism. Moreover, even if the law were to no longer rely on marriage, finding another way of channelling legal rights and responsibilities would not be without its challenges. Though Herring suggests that the law could rely on cohabitation, together with an ‘opt out’ system, to provide such alternative, this seems inappropriate given that the current law has been unable to define ‘cohabitation’ and any further attempt to develop a coherent approach to such concept would be difficult and time-consuming. There may be other alternatives, but it is clear that reliance on marriage is convenient since it prevents the state from wasting time and effort in finding an effective conceptual device that can ascribe legal rights to the parties, which in any event is unlikely to be sought since no mechanism can arguably perform certain crucial functions better than marriage. Therefore, the institution of marriage is necessary because it is more convenient and easier for the state to regulate the family life through it.

Autonomy

The institution of marriage is also necessary because it helps maintain a clear legal distinction between the different forms of adult relationship, which is required to uphold the notion of ‘autonomy’ and provide couples with a choice between marriage (or civil partnership) and cohabitation. Deech argues that conferring rights on cohabiting couples and treating them as married couples would be interventionist since some couples may have consciously chosen to cohabit to avoid the legal obligations attached to marriage. It seems that as long as the institution of marriage is relied upon to demarcate the legal position between different forms of relationship and that there is no cohabitation law reform, couples will retain the choice and ‘corner of freedom’ to reject any intervention by the state. Therefore, in light of Deech’s view, the institution of marriage is arguably required to preserve the autonomy of couples. However, the strength of this argument has been diminished by data indicating that only one-tenth of cohabitants chose to reject marriage due to the legal consequence arising from it. Therefore, most couples are perhaps ignorant of the differences in legal treatment and consider the notion of ‘autonomy’ as irrelevant, which seems to undermine the position that marriage plays an important role here.

Social Stability

Nonetheless, marriage remains necessary because it encourages more committed and stable relationships, which thereby helps maintain a “strong and stable society”. Though 48% contend that “living with a partner shows just as much commitment as getting married”, married couples actually show a greater commitment to the relationship by undertaking legal responsibilities that are not attached to a cohabiting relationship. In fact, since married couples are at a greater financial liability and may face significant legal consequences on termination of marriage, one would assume that married couples would be more discouraged couples from breaking up than cohabitants.

However, this argument is tenuous; the continuing prevalence of the ‘common-law marriage myth’ implies that parties are oblivious to the legal consequences of certain relationships. Nonetheless, the falling divorce rate suggests that marriages are increasingly becoming less susceptible to breakdown and that the current married population is more likely to stay together, unlike cohabiting couples, who account for more than half of family breakdowns. Therefore, given that that married couples are arguably more committed and stable, Herring posits that it might be in the interests of society to support the institution of marriage. This is because unstable relationships, on the contrast, negatively affect the well-being of children, with children from separated parents being 75% more likely to fail at school and 70% more likely to become a drug addict, and also undermine the notion of a ‘family’, which, put simply, is a “basic social unit constituted by at least two people”. Therefore, one could conclude that stable relationships, such as those between married couples, are more likely to maintain the stability of society itself, thus indicating the need for marriage.

Social Acceptance

Though the rise in cohabitation suggests that society has been welcoming of more diverse forms of relationship, marriage still has social significance in the 21^st century and remains an institution that some couples need to rely on to feel socially accepted. Herring notes that the “social pressure against ending a marriage […] may be greater than the pressure against ending an unmarried relationship”, which implies that marriage remains a signifier of social approval and that is why any attempt to abandon marriage remains controversial. Furthermore, for many faiths, marriage remains the basis for family life; Eekelaar and Maclean’s study supports such premise by revealing that couples from certain ethnic backgrounds mainly choose to marry for religious reasons. This suggests that marriage plays an important role in maintaining religious norms and meeting societal expectations upheld by certain communities. Hence, marriage remains a necessary tool for some to feel accepted in society.

Despite academics such as Auchmuty contending that marriage has lost legal and social significance, it is clear that this argument is misleading. This is because marriage, as noted above, is the only institution that parties can rely on to obtain extensive legal rights (other than a civil partnership) and it remains the only form of adult relationship that functions in the best interests of society and the state. Marriage, therefore, remains a legal and social phenomenon in the 21^st century and accordingly it is a necessary institution that should be protected.

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Bibliography

Primary Sources

UK Cases

1. Davis v Johnson [1979] AC 264 (HL)
2. Lloyds Bank v Rosset [1991] 1 AC 107 (HL) UK Primary Legislation

1. Child Support Act (CSA) 1991
2. Family Law Act (FLA) 1996
3. Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012
4. Matrimonial Causes Act (MCA) 1973

Secondary Sources

Articles

1. Auchmuty R, ‘Law and the Power of Feminism: How Marriage Lost its Power to Oppress Women’ (2012) 20 Feminist Legal Studies 71
2. Deech R, ‘Cohabitation’ [2010] 40 Family Law 39
3. Dewar J, ‘Family Law and Its Discontents’ (2000) 14 International Journal of Law, Policy, and the Family 59
4. Eekelaar J and M MacLean, ‘Marriage and the Moral Bases of Personal Relationships’ (2004) 4 Journal of Law and Society 510
5. Probert R, ‘Cohabitation: Current Legal Solutions’ (2010) 62 Current Legal Problems 316.

Books

1. Gilmore S and L Glennon, Hayes and Williams’ Family Law (7th edn, OUP 2020)
2. Herring J, Family Law (9th edn, Longman 2019)
3. Herring J, R Probert and S Gilmore, Great Debates in Family Law (Palgrave Macmillan 2015)
4. Miles J, R George and S Harris-Short, Family Law Text, Cases and Materials (4th edn, OUP 2019).
5. Nigel L and others, Bromley’s Family Law (12th edn, OUP 2021)