In days of yore it was so much simpler – you were either married or you weren’t. The sanctity of marriage was the norm. You reached, say, your late teens or early twenties, you got engaged, and then you were married; whether you lived happily ever after was another matter. In those days, in both a sociological and a legal way, marriage was to be supported, and it was. Socially, marriage was the way in which families were created and fostered; consequently, the legal idea was that the sanctity of marriage had to be protected.
Historically, this was quite a curious journey. Whereas there had virtually always been a collective desire for a cohabitive union between a man and a woman, there were no regulations defining its creation or dissolution and its purpose was purely sociogenic – indeed, it wasn’t really until the early Victorian age that it was felt that marriage should actually be based on love, or at least companionship.
Up until the 1857 Matrimonial Causes Act, divorce was largely open only to men, and had to be granted by an Act of Parliament, which was hugely expensive, and therefore was also open only to the rich. The earliest record in the Public Records Office of such a divorce was an Act of Parliament in 1670 allowing Lord Roos to divorce his wife, Lady Anne, on the grounds of adultery. The 1857 Act made divorce the jurisdiction of the courts and, indeed, the Probate, Divorce and Admiralty Division was formed as a separate division of the High Court (now, of course, the Family Division). In 1866, the well-known case of Hyde v. Hyde defined marriage as the voluntary union of one man and one woman to the exclusion of all others.
We can pause for a minute to reflect on how the state viewed the sanctity of marriage by aligning with its instigation through the church and the difficulties put in the way of marriage’s dissolution. This is also typified in other areas of law. For example, if a couple became engaged to be married (signified and confirmed by the giving of an engagement ring), the man could be sued for the damaged reputation of the young lady in question if he broke off the engagement; it was called a ‘breach of promise’ action but came within the scope of contract law and was designed to uphold the sanctity of the marriage bargain (this is no longer the case since 1970, as s. 1 of The Law Reform (Miscellaneous Provisions) Act of that date declared that the parties to an agreement to marry did not intend to create a legal contractual relationship and so such an agreement was not a contract, in law). If you have studied the law of contract, you will also remember that one of the requisites of a binding contract is that it must not be against public policy, and violating the sanctity of marriage was against public policy! A contract, for example, to pay ‘A’ a monthly allowance provided ‘A’ never married would have been void in the same way that a grant, under Land Law, of a conditional estate of a property to ‘A’ provided he never married would, prior to 1925 (when a life estate was a legal estate and not an equitable one as it now is) have been void.
How things have changed! Legal unions were made easier by way of a civil partnership between two people of the same sex in 2004 and by same-sex marriages in 2014, which gave the benefit of the title of marriage as opposed to simply that of a civil partnership. Divorce, correspondingly, was also made easier in 1969 by the Divorce Reform Act, in 1973 by the Matrimonial Causes Act and in 2010 by The Family Procedure Rules, the effect of which was to introduce just one ground for divorce (the irretrievable breakdown of the marriage); allow divorce by consent after two years’ separation; create a simplified procedure making it possible to commence divorce proceedings after merely one year’s marriage; and make it unnecessary to even attend court to prove breakdown.
It can be seen, therefore, that public regard for the sanctity of marriage has changed, and the social stigma of divorce and cohabitation outside of marriage which pervaded up to the beginning of the 1950s no longer exists. So, the questions that have to be asked are whether it is still public policy to sanctify marriage; and whether a legally accepted union of two people, whether heterosexual or homosexual, outside a marriage or civil partnership should be awarded the same rights and recognition as those inside them. Why not go the full circle back in history to when two people got together for companionship, help and forming a family in a purely social way? There have always been such people, and we still have them today. They are people who cohabit without going through any formal ceremony to recognise their union. In the 1920s (after the Great War) such unions were called ‘compassionate marriages’, but the name faded into obscurity. Today the expression is that such people are ‘common law wives’ or ‘common law husbands’ (although the terms are not, and never have been, recognised under our Common Law). So now they are merely called ‘cohabiters’ – a couple (of either opposite sexes or same sexes) who cohabit with each other.
According to the Office of National Statistics, in 2014 there were 18.6 million families in the UK. Of these, 12.5 million were married-couple families, including 7,366 same-sex couples, and 55,750 were civil partnerships – meaning that roughly 6 million families are simply cohabiting. This group grew by 29.7% between 2004 and 2014, making it the fastest growing type of family in the UK!
So why, out of a total of some 18.6 million couples, do some 12.5 million get legal rights and privileges resulting from their union, whilst the remaining 6 million, or thereabouts, get none whatsoever?
Here are some of the rights and obligations that cohabiters are missing out on:
* Inheritance provisions if one partner should die intestate (i.e. without leaving a Will). The Intestacy Rules do not acknowledge non-married couples or those not under a civil partnership.
* If the relationship breaks down, neither party can claim against the other for such things as a share of assets that had been built up during the relationship. One partner may stay at home and bring up the children whilst the other provides financially and creates savings, but on a break-up they may not be in a position to claim against capital, income or pension. Even if the union doesn’t break up but instead one party dies, the surviving unmarried party (or civil partner) may not have an automatic right to the pension pot.
* If the couple is living in a house/flat or other property owned by one of them, it would be extremely difficult, if not impossible, after a break-up for the other to be able to claim an equitable interest (beneficial interest) on the basis that his or her salary contributed to the payment of the mortgage or other household bills.
As you can see, it is essential that the parties enter into a cohabitation agreement to provide for any eventuality, and that each party makes a valid will to avoid dying intestate. However, this is not so easy in practice; when a couple is in love it’s difficult to discuss what to do when love wanes, bitterness sets in and they split! Nevertheless, it would save many a headache – you can see what an example of such an agreement can look like by going to www.rocketlawyer.co.uk.
An example of the ‘unfair’ treatment of cohabiters is a recent case in the Court of Appeal in September of this year: Smith v Lancashire Teaching Hospitals NHS Trust & Anor  EWHC 2208 (QB). The claimant had cohabited with her partner for many years before he died as a result of the defendants’ negligence. In a nutshell, she did not qualify for damages for bereavement under the provisions of the Fatal Accidents Act 1976 (as amended) because she was not married or under a civil partnership. She sought a declaration that such a provision was not compatible with Article 8 of the Human Rights Act 1998 (the right to respect for private or family life) and Article 14 (which requires there be no discrimination in the application of human rights on any ground). The Court of Appeal dismissed her appeal, and so, in effect, fatal accident bereavement damages do not extend to cohabiters. An excellent precis of the whole case can be found at https://zenithpi.wordpress.com/2016/09/08/fatal-accident-bereavement-damages-do-not-extend-to-cohabitee-a-high-court-decision-made-with-some-reluctance/
When the Marriage (Same-Sex Couples Act) came into effect in 2014, people were concerned that nothing had been done to bring cohabiters into line with married couples and civil partners. Liberal Democrat peer Lord Marks of Henley-on-Thames introduced a Bill in the House of Lords in 2014 to “provide certain protections for persons who live together as a couple or who have lived together as a couple; and to make provision about the property of deceased persons who are survived by a cohabitant; and for connected purposes.” The Government has not been particularly supportive of the Bill and have, perhaps, more pressing matters on hand because of Brexit. However, it is a matter of concern, and it is the equitable thing to do to ensure a smooth passage of the Bill through Parliament. If you are interested, a copy of the draft Bill can be accessed at http://www.publications.parliament.uk/pa/bills/lbill/2015-2016/0029/160029.pdf
In the House of Lords debate on the Bill, Baroness Deech spoke against it, saying it would “reduce people’s willingness to commit long term and it would increase the stress of couple breakdown – to the significant detriment of children.” Baroness Butler-Sloss, however, spoke forcibly in favour of the bill, drawing on the experience of her long career as a family judge. She said that she had been married for 56 years and is a strong supporter of marriage, and she does not see that the bill is an attack on marriage. Incidentally, you can read about Butler-Sloss in our journal article ‘From Secretary to Judge’: https://www.legalsecretaryjournal.com/?q=from_secretary_to_judge.
Keep your eyes peeled for further developments!