Family Law Challenges in a Changing Society

Table of Contents

1. Introduction

2. Marriage, Civil Partnership and Cohabitation

3. The Evolution of Families and Marriage

4. The Evolution of Society and Laws

5. Proposed Reforms concerning the Regulation of Cohabitation

6. Why Legal Marriage is becoming obsolete in a pluralist egalitarian society – Feminist and Liberalist Critiques of State Governed Marriages

7. Conclusion

1. Introduction

There are many ways to define marriage and there are numerous perspectives on which these definitions can be based. Every country or even state has its own legal definition, each culture will have its own cultural and sociological definition, religions will have their own religious definitions and even each era will has its own anthropological definition.^[1]

The British anthropologist Eleanor Kathleen Gough Aberle defined marriage in 1959 as „a relationship established between a woman and one or more other persons, which provides that a child born to the woman under circumstances not prohibited by the rules of the relationship, is accorded full birth-status rights common to normal members of his society or social stratum.”^[2]

For statistical purposes the United Nations have recommended the following definition:

„the legal union of persons of opposite sex. The legality of the union may be established by civil, religious, or other means as recognised by the laws of each country; and irrespective of the type of marriage, each should be reported for vital statistics purposes.”^[3]

It is particularly interesting that the United Nations have added the word “legal” to their definition which provides the institution of marriage with a legal dimension. In the book “A practical treatise on the law of marriage and divorce“, Leonard Shelford explains that “Marriage, in its origin, is a contract of natural law antecedent to its becoming in civil society a civil contract, regulated and prescribed by law and endowed with civil consequences.”^[4]

However, the past decades have experienced a decline in marriages amongst the British population as well as a substantial increase of cohabiting partners, who share the same domicile without having some form of contract governing the relationship.

This has given rise to various approaches as to how relationships and families in particular are to be regulated.

The following discussion will begin by taking a look at the current situation in England and Wales. Hereafter, points 3 and 4 will provide a theoretical foundation of the development of marriage and families as well as laws and justice. Finally, the last two points will discuss the recommended reform of the laws governing cohabitation and the current marriage scepticism which is growing in feminist and liberal jurisprudence.

2. Marriage, Civil Partnership and Cohabitation – The current situation in English law

In England and Wales stable monogamous relationships between men and women are regulated through marriage^[5]. Accordingly, the most widely accepted definition of marriage in English law is ‘the voluntary union for life of one man and one woman to the exclusion of all others’^[6], however, this is more an ideal promoted by the law than a definition^[7]. In Bellinger v Bellinger, Thorpe LJ defined marriage as ‘a contract for which the parties elect but which is regulated by the state, both in its formation and in its termination by divorce because it affects status upon which depend a variety of entitlements, benefits and obligations’.^[8]

These entitlements, benefits and obligations include elements such as an obligation to support one’s spouse financially, the right to occupy the matrimonial home, tax benefits such as higher rates of exemption from capital gains tax on lifetime transfers between spouses. Furthermore, married spouses enjoy certain rights on death such as an automatic right to receive assets from the deceased spouse. Implied rights and responsibilities include, for example, sexual intercourse, as a marriage may be annulled on the basis of one party’s inability or wilful refusal to consummate the marriage and refusal of sexual relations is a behaviour that would justify the grant of a divorce.^[9]

An obvious effect of marriage is that neither party is entitled to marry or enter a civil partnership with another person during an existing marriage.

The effects of marriage is mostly a matter inference and often the only way to determine an obligation is by examining whether there is a remedy in case of a breach such as in the case of adultery, in which case a court will grant a divorce to one spouse upon evidence of sexual infidelity of the other spouse.^[10]

In 2004, the legal regulation of stable relationships in England and Wales was extended beyond marriage to include the creation of civil partnerships, an alternative to marriage for couples of the same sex. In many ways civil partnerships are ‘marriage in all but name’.^[11] However, since 2014 the Marriage (Same Sex Couples) Act 2013 (c. 30) legalised same-sex marriage in England and Wales.^[12]

In contrast to marriage and civil partnerships, cohabiting couples who are neither married nor in a civil partnership are not subject to any coherent family law scheme.^[13] There is a statutory remedy for cohabitants whose relationship was terminated by death, in which according to the Inheritance Act 1975 survivors are able to apply to court for a share of the deceased estate when there was no provision by a will.^[14] However, there is no equivalent remedy in situations in which cohabitants’ relationships end by separation.^[15]

The institution of marriage used to constitute the core of Family law and focussed predominantly on aspects such as the formalities of marriage, the consequences of marriage, and its dissolution. Today, parenthood is the core concept in family law and marriage is becoming of limited legal significance.^[16]

3. The Evolution of Families and Marriage

Families developed across the world in various different cultures and times as care institutions that contributed to the basic economic survival of family members. For this reason it is not surprising that the family structures have often been found to have adapted to the economy and cultural ideologies. Over the course of human economic history, social scientists have identified four major types of economies. First hunting and gathering economies followed by agrarian and agricultural economies, later modern/industrial economies and finally service and knowledge based economies, also known as sectors.^[17] Although all of these economies exist in different parts of the world and many nations have mixed economies, a shift can be experienced from the earlier forms of economies to a larger emphasis and importance of the more modern forms of economies.

Although marriage has appeared in various forms throughout cultures and history, a universal feature has often been gender division of labour between men and women,^[18] with the wife’s labour centring on activities near the home.^[19] The reasoning for this can be twofold. The obvious reason is the fact that only women can give birth and breastfeed children, which makes them the logical caregivers for children.^[20] However, another reason can be found in one of the most basic economic principles – the law of comparative advantage. This principle says, that "the individual with the lower opportunity cost of producing a particular output should specialize in producing that output."^[21] Using this principle, which is actually used in describing international trade, analogously to describe the small economy of a family can shed light on the original sense of gender inequality. In times, when the economy was dominated by the primary sector of the economy and the secondary sector of the economy the opportunity costs of participating in the economy in general were a lot lower for men than women. This was due to the importance of physical strength in these two economic sectors. If in most cases men automatically due to their physique had the lower opportunity costs for participating in the economy, women, as a result, had to automatically face the lower opportunity cost of housework in most cases. This way the combined output (work and household) could be mastered most efficiently.^[22]

As in today's economy the tertiary sector of the economy and the quaternary sector of the economy rise in importance, the physical differences between men and women have diminished in importance. Moreover, the growth of capitalism led to an expansion of wealth, growth of the middle class, rise of Enlightenment thinkers who challenged the power of monarchs and championed the virtues of the free market, individualism, freedom and human rights and with that new thinking about marriage. This has given rise to a large-scale women’s equality movement over the last century which culminated in gender equality in marriage.^[23]

In R v R, Lord Keith described marriage as “a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband”.^[24]

It is a wide-spread opinion that children are at the heart of marriage.^[25] This again is in line with the previously mentioned shift of focus from marriage to parenthood in English Family Law.

Today, a significant change in society regarding marriage as a cultural concept is becoming evident due to rapidly declining numbers of marriages. In the last three decades of the 20th century there was a 40% drop in the number of marriages^[26] and in 2008, 37% of marriages were second or further marriages for at least one of the parties, suggesting that the number of people who choose not to marry has greatly increased. Today, marriage is no longer a requirement within society, but rather a lifestyle choice.^[27]

4. The Evolution of Society and Laws

The following will take a brief look at legal positivism and the liberalist ideology of justice and equality to explain the theoretical notions behind the developments of laws in society.

Legal positivism was founded by Thomas Hobbes. This theory explains that laws are merely the commanded declaration of the will of the sovereign which needed to be obeyed by the people it was addressed to on grounds of law, rather than wisdom.^[28] In a democracy the people are considered the sovereign.^[29] This means that it is the people, or at least their elected representatives who have the authority to make laws. According to Luhmann’s systems theory, laws develop in three crucial stages. Firstly, it is conceptualized in relation to expectations generated in society. Secondly, it is defined as a system of communication that is capable of reproducing itself on the basis of legal ‘autopoiesis’ and finally it is analysed as part of the society in which a law emerges.^[30]

Nevertheless, according to legal positivism, laws do not need to be fair to be justified. Rawls highlights the importance of justice within a legal system in accordance with liberalism^[31] and sought to fix the conflict between claims of liberty and equality^[32] by integrating the notions of freedom and equality into a single concept of justice as fairness. In this sense, he takes account of pluralism and values the need of cooperation between citizens with a multitude of beliefs and political convictions.^[33] In accordance with his ideas of political liberalism, the role of justice entails that the government should be neutral between competing conceptions.^[34]

As previously mentioned, it is no longer a moral obligation in the English and Welsh society to get married. In accordance with this development there is an ongoing debate as to whether the rights of marriage should be extended to other forms of partnerships such as cohabitation, or whether there is even a requirement for the state to regulate marriage at all. These two positions will be discussed in the following two points.

5. Proposed Reforms concerning the Regulation of Cohabitation

Following the introduction of the Civil Partnership Act in 2004 the Law Commission were asked to make recommendation to Parliament on cohabitation, as cohabitant couples without formally registered relationships were the only couples left without a proper system for relief.^[35]

In their view, the grounds for legislative intervention should avoid injustice upon the termination of a relationship where the parties were economically and emotionally interdependent and relied upon the relationship rather than their separate legal entitlements to secure their financial well-being.^[36] They recommend that in the absence of an agreement between parties, a statutory scheme should apply, provided that certain eligibility requirements are met regarding the length of the relationship, the existence of a common household, whether they have children together and the marital status of the cohabitants.^[37] This scheme is based upon establishing economic advantage and disadvantage and reflecting the impact of the relationship upon the cohabitees, provided that there had been a “qualifying contribution” made which gave rise to these consequences, however, without imposing any obligations upon the other party to maintain or provide for their ex-partner after separation.^[38]

Although the Government has neither rejected nor objected legislating in accordance with these recommendations, it has postponed making a decision about changing the law until the Scottish legislation on cohabitation, which was introduced in 2006^[39], has been sufficiently reviewed.^[40]

Currently the reasons in favour of the reform include amongst others the following arguments:

The current legal patchwork system as found in the general law of property and trusts and certain specific statutory provisions provides illogical, uncertain and unfair remedies.^[41] The case of Burns vs Burns^[42] demonstrated how cohabitees can find themselves in weak legal positions after a separation compared to married spouses. In this case, a woman found herself in the legal situation that, after 17 years of cohabitation in which she gave birth to and cared for two children, she had no interest in the family home as her name was not included in the deed. This case is often referred to as an argument for a reform of the law in order to bring about “fairer” outcomes for cohabitants on separation.^[43]

Furthermore, when cohabiting couples have one or more children they tend to adapt their individual roles within the relationship to support the children. This often includes one partner giving up full-time paid work in reliance on the other partner’s financial contributions to the household. It is said that although Schedule 1 to the Children’s Act 1989 seeks to protect children whether their parents are married or not, that the current law fails to address adequately any financial hardship experienced by the primary carer on separation, which must inevitably effect the quality of life of the children for whom the adult party continues to care.^[44]

Moreover, the fact that there is a high level of misconception about the legal status of cohabitants amongst the general population of England of Wales, who think that the English law recognises cohabitants as “common law spouses” once they have lived together for some period of time gives rise to concerns. This misconception was particularly highly represented amongst cohabitants, of which 59% believed it to be the case.^[45]

Arguments against these views would include the fact that the law does not generally help those who voluntarily put themselves in a position where they suffer financial hardship unless there was a clear agreement, intention, assurance or some other recognised trigger justifying the provision of a remedy.^[46] In this sense it is believed by some, that a law reform such as the suggested proposal would invade the autonomy of those who have deliberately chosen to cohabit and not to marry. The foundation for this argument can be found in the idea that adults as autonomous individuals should be allowed to conduct their lives with the minimum of state interference.

In addition, taking responsibility presupposes an adequate degree of knowledge and awareness of the consequences of one’s actions and choices.^[47] However, although there may be concern about the lack of knowledge amongst the general public regarding the consequences of cohabitation, it can be argued that the information is easily and readily available on the internet. In information societies such as we live in today it can be expected that reasonably concerned people could and would look into the consequences before making substantial long-term decisions. More importantly, English law is known to apply the maxim ‘ignorantia legis non excusat’ quite strictly.^[48] It is a public policy holding that a person who is unaware of a law may not escape liability, merely because he or she was unaware of its content.^[49] In this regard, it can be said that it would and should be each individuals own responsibility to ensure they are aware of the laws regulating their specific life situation, especially when the information is as easily accessible as it is nowadays.

In terms of the argument for remedies in the cases in which the cohabitants have children one could argue that the legislation protecting the interests of children applies to all children equally, whether or not their parents were married. The concerns within the above argument could hence be applied to all children with parents who do not live together regardless if these had cohabited.^[50] Also, this is not a problem confined to ex-cohabitees, as the burden of support for these individuals will, if necessary, fall upon the state and the taxpayer.^[51]

At this point it is necessary to emphasise that the majority of arguments are based on the assumption that marriage is the ideal to which every family should aspire.^[52] In this sense it can be argued that the reform proposals for cohabitation are based on the assumption that because marriage is the ideal, cohabitants should be treated as marriage-like in order to fix the balance of a societal move away from the traditional concept of marriage. This argument, however, lacks coherent justification, as the UK has not experienced or considered the consequences of a complete abolition of a state marriage. The following will take a look at some key arguments of marriage scepticism and the ideas of an abolition of state governed marriages as a different approach to enhancing equality and egalitarianism amongst families in a pluralist society.

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^[1] Richard van Dülmen, Das Haus und seine Menschen: 16.-18. Jahrhundert, (4th edn., München : Beck, 2005) p 157.

^[2] Gough Kathleen, cited in Drawing the Boundaries of Meaning: Neo-Gricean Studies in Pragmatics And Semantics in Honor of Laurence R. Horn (Studies in Language Companion Series, Betty J. Birner und Gregory Ward von John Benjamins Publishing Co, 2009) p 226.

^[3] Acheampong Yaw Amoateng & Tim B Heaton, Families and households in post-apartheid South Africa : socio-demographic perspectives (Cape Town : HSRC Press, 2007) p 91.

^[4] Leonard Shelford, A practical treatise on the law of marriage and divorce (Philadelphia: John S. Littell, 1841) p 29.

^[5] Jonathan Herring, Family Law (3rd edn., Harlow: Pearson, 2007) p. 39.

^[6] Hyde v Hyde and Woodhouse (1866) LR 1 PD 130

^[7] Jonathan Herring, Family Law (3rd edn., Harlow: Pearson, 2007) p. 43.

^[8] Bellinger vs Bellinger [2001] 2 FLR 1048, para. 128.

^[9] Rebecca Probert, Family Law in England and Wales, (Alphen aan den Rijn: Kluwer Law International, 2011) p. 83 et seq.

^[10] Ibid.

^[11] Hale, Baroness, ‘Unmarried couples in family law’, Family Law 34: 419.

^[12] Marriage (Same Sex Couples) Act 2013, c.30.

^[13] The Law Commission, Consultation Paper No 179, Cohabitation: The Financial Consequences of Relationship Breakdown, A Consultation Paper, 2.16.

^[14] Ibid. 5.2 et seq.

^[15] Ibid. 2.16.

^[16] Jonathan Herring, Family Law (3rd edn., Harlow: Pearson, 2007) p. 39.

^[17] Shirley A. Hill, Families: A Social Class Perspective (Los Angeles: SAGE/Pine Forge Press, 2012) p. 1.

^[18] Ibid.

^[19] Ibid.

^[20] Shirley A. Hill, Families: A Social Class Perspective (Los Angeles: SAGE/Pine Forge Press, 2012) p. 5.

^[21] William A. McEachern, Economics: A Contemporary Introduction, (8th edn., South Western Educ Pub, 2008) p. 32.

^[22] Danielsson, A., The Global Gender Gap, 2011.

^[23] Shirley A. Hill, Families: A Social Class Perspective (Los Angeles: SAGE/Pine Forge Press, 2012) p. 2.

^[24] Lord Keith, R v R [1992] 1 AC 599.

^[25] Jonathan Herring, Family Law (3rd edn., Harlow: Pearson, 2007) p. 42.

^[26] Ibid. p. 40.

^[27] Barlow, A., Duncan, S., James, G. and Park, A. (2005) Cohabitation, Marriage and the Law , Oxford: Hart. 2005) 49; Ibid.

^[28] David Mapel & Terry Nardin, International society: diverse ethical perspectives, (Princeton N.J., Princeton University Press, 1999) p 36.

^[29] Pierre Manent, Ocqueville and the Nature of Democracy, (Lanham, Md.: Rowman & Littlefield, 1996) p. 4.

^[30] Austin Harrington, Barbara L. Marshall, Hans-Peter Müller (ed.), Encyclopedia of Social Theory (Oxon, Routledge, 2006) p. 314.

^[31] Wolf Bloemers & Vanda Hajkova, Richtung Inklusion in Europa (Berlin, Frank & Timme, 2006) p. 238.

^[32] John Rawls, Justice as fairness: A Restatement, (London : Belknap, 2001) p. 2.

^[33] Nicolas Tampio, Kantian Courage: advancing the enlightenment in contemporary political theory, (New York, Fordham University Press, 2012) p. 138.

^[34] Cram101 Textbook Reviews (ed.), Moratily and the Good Life: An Introduction to Ethics Through Classical Sources (5th Edition, Content Technologies, 2014).

^[35] Pegah Shargy, Crown Office Row Chambers, Reform of the Law on Cohabitation, p.1, available online: http://www.1cor.com/1155/records/1123/Cohabitation%20-%20PS.pdf, accessed: 9th June 2014.

^[36] Ibid. p. 2.

^[37] Ibid.

^[38] Ibid. 3.

^[39] Family Law (Scotland) Act 2006, s.28.

^[40] resolution.org.uk , COHABITATION BILL, EXPLANATORY NOTES, para. 9., available at: http://www.resolution.org.uk/site_content_files/files/explanatory_notes.pdf , accessed: 9th June 2014.

^[41] Great Britain. Law Commission., Cohabitation : the financial consequences of relationship breakdown, a consultation paper, (London : The Stationery Office, 2006) p.17.

^[42] Burns v Burns [1984] Ch 317.

^[43] Great Britain. Law Commission., Cohabitation : the financial consequences of relationship breakdown, a consultation paper, (London : The Stationery Office, 2006) p.17.

^[44] Ibid.

^[45] Ibid. p.12.

^[46] Ibid.

^[47] The Law Commission Consultation Paper No 179, COHABITATION: THE FINANCIAL CONSEQUENCES OF RELATIONSHIP BREAKDOWN, A Consultation Paper, available at: http://www.lawcom.gov.uk/cohabitation.htm, accessed: 8th June 2014.

^[48] Annemieke van Verseveld, Mistake of Law: Excusing Perpetrators of International Crimes, (Berlin: Springer-Verlag, 2012) p. 18.

^[49] Astrid Tangl, English for lawyers and law students, (3rd edn., Vienna: Linde, 2014), p. 152.

^[50] The Law Commission Consultation Paper No 179, COHABITATION: THE FINANCIAL CONSEQUENCES OF RELATIONSHIP BREAKDOWN, A Consultation Paper, p. 16, available at: http://www.lawcom.gov.uk/cohabitation.htm, accessed: 8th June 2014.

^[51] Colm O'Cinneide, George Letsas & Christopher Campbell-Holt , Current legal problems. (Vol. 62, Oxford : Oxford University Press, 2010) p. 317.

^[52] The Law Commission Consultation Paper No 179, COHABITATION: THE FINANCIAL CONSEQUENCES OF RELATIONSHIP BREAKDOWN, A Consultation Paper, p. 1, available at: http://www.lawcom.gov.uk/cohabitation.htm, accessed: 8th June 2014.