MacNairs + Wilson

5 minutes reading time (1076 words)

Is Marriage Out Of Date?

On the 10th of February 2011, three debates were held at the Oxford Union, Cambridge Union, and in the House of Lords. These debates were all entitled “This house believes the institution of marriage is out of date” and in all three places the motion was defeated, with a clear majority unable to contemplate the possibility of marriage being out of date. Five years on, would they come to the same conclusion? We take a bird’s eye view of families today and attempt to come to a conclusion.

Marriage and Cohabitation in the UK

The amount of couples marrying continue to fall; this is while the number of couples living together is rapidly increasing. The number of children being born outside of marriage is increasing too, along with the amount of single mothers. There is no legal ‘glue' to hold a cohabiting couple together and help them try and make it work. Without these legal ties that are hard to cast off, cohabiting couples can break up as easily as they began to live together. The ONS statistics speak for themselves.

Despite the increasing number of couples choosing to cohabit, very few people consider what happens upon the breakdown of a cohabiting relationship. This is worrying, research by the Co-op has found that one in four people in a cohabiting relationship believe they have the same rights as a married couple and this is sadly not the case. Too many couples are choosing to stick their heads in the sand rather than seriously think about their options.

Those who will be the least affected by the breakdown of a cohabiting relationship (not counting the emotional aftermath of a breakup) are couples of independent means with no dependants. For them it might only be a question of divvying up the house contents and deciding when the property should be marketed then dividing the proceeds as per the agreement they made when they bought it (this is, of course, assuming that there is such an agreement, without an agreement and if title was only taken in one partner’s name the legal position is very different).

However easy it might be for such cohabitees, the legal reality of the situation is that the overwhelming majority of cohabiting relationships do not conform to this ideal. The majority of cohabiting relationships are between people of disparate means and needs, and experience shows that the person with means is almost overwhelmingly male. This position is, of course, changing with the increasing financial stability of women and with the increasing prevalence of same-sex cohabitees, but in the majority of cohabitation cases dealt with, the male is the wealthier party, and the female has care of the children.

Legal Rights of Cohabitees

In law, cohabitees do not have the same legal rights as married couples/civil partners. While the Family Law (Scotland) Act 2006 created some rights and obligations for cohabitees, the legal position is still not as strong as that for a married couple. The court can order one cohabitant to pay a capital sum to the other providing an application is made to the court within one year of the end of the cohabitation. The court will make such an order if it can be demonstrated that one cohabitee suffered an economic disadvantage at the expense of the other cohabitee, or, conversely, if one cohabitant gained an economic advantage at the expense of the other. This kind of advantage or disadvantage can be financial or non-financial, e.g. taking care of children of the relationship.

There are also two presumptions, both of which can be overturned. Firstly, the presumption that each cohabitant will share equally in household goods acquired during the course of the relationship (excluding gifts and inheritances). This does not include money, cars, or domestic animals.

Secondly, there is a presumption that the parties should share any money or property derived from a household allowance equally. Property bought for the cohabitees to live in is explicitly excluded from this provision. There is also no provision for the court to make a property transfer order, so you could not make a request for the court to transfer the house into your name. This can prove a significant issue in cases like those outlined above where one cohabitee has much greater financial means than the other. If title was taken out in that cohabitee’s name and there was no cohabitation agreement in place then the cohabitee who’s name wasn’t on the title but who did the bulk of the childcare could find themselves unceremoniously flung out of the family home.

Cohabitation Agreements

Cohabitation agreements are the best way to deal with financial provision at the end of a cohabiting relationship and should be considered essential when property is being purchased as part of a cohabiting relationship. But are still comparatively little used. Cohabitation agreements are contracts which can cover topics as varied as the financial arrangements to exist during the cohabitation; how the property will be disposed of after the end of the relationship; or it can provide that neither party will make a claim against the other if the relationship ends. These are obviously not the most romantic things to negotiate with your partner, but they are increasingly important in the modern age.

The legal position of cohabitees is still uncertain. Due to there being relatively little case law concerning cohabitees their legal position is nowhere near as certain as those of married couples, and it is somewhat difficult to know exactly what they are entitled to. This results in complex cases with uncertain outcomes, making it extremely important to seek expert legal advice at the first possible opportunity.

Based on this evidence it is hard to fully support the claim that marriage is out of date. As long as the legal protections afforded to couples who are married or in a civil partnership outweigh the protections offered to cohabiting couples it can never truly be said to be out of date. In fact, it would be far more accurate to say that the legal provisions for cohabiting couples are out of date, rather than the institution of marriage itself.

Contact Our Expert Cohabitation and Family Law Solicitors Today

If you require legal advice regarding your cohabiting relationship, the creation of a cohabitation agreement, or if you require any legal advice whatsoever regarding family law, our team of expert solicitors can help. Get in touch with our team using our online contact form.

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