On 10 February 2011 I took part in a debate held at the Oxford Union entitled “This house believes the Institution of marriage is out of date”. The motion which I proposed failed that night, as it did in the Cambridge Union and in the House of Lords, where exactly the same debate was held at the same time.
A clear majority at both universities and in the House of Lords was not prepared to contemplate such a possibility as marriage being out of date. Indeed I was even informed at a dinner before the debate had begun, that the motion would fail and the outcome was a foregone conclusion. Yet outside those hallowed halls, with their historic establishment credentials, was I wrong?
Five years later let’s take a bird’s eye view of families today.
The numbers of couples marrying continues to fall, the numbers of couples living together is rapidly increasing. The numbers of children born outside marriage are increasing too. There is no legal “glue” to keep a cohabiting couple together help them to try harder to make it work. Without legal ties that are harder to cast off and where both parties are at risk from marriage breakdown, they can break up as easily as they began to live together. The numbers of single mothers with children are also increasing. The ONS stats speak for themselves.
We live in a free society where anything goes, more or less. Very few people consider what will happen when cohabitation breaks down, as statistically it is more likely to do. It worries me. There is no law in this area. But a confident couple, having fun together, laugh off my concerns. “There’s no need to worry” they reply if I raise the question “Well… what if?”, which should probably be “What if, when it happens?”, “We’re going to be fine.” I’m laughingly told this and at that point I imagine two ostriches with their heads firmly planted in the sand and their long gangly legs and big bottoms sticking up for the entire world to see.
Exactly who is going to be fine at the end of this relationship, is simply a matter of fact. Couples with no dependents, both of independent means will be fine. For them it might only be a question of dividing up the contents and deciding when the property should be marketed and the proceeds divided up in accordance with the agreement they made when they bought it. And of course there is getting over the emotional breakup too.
But I’m not thinking of those relationships. I’m thinking of the larger number of relationships, created between people with disparate means and needs. For example, a wealthier party who lives with a poorer person. In my experience the person with means is overwhelmingly male. It’s changing of course as more women become financially stronger. Similarly too it can apply to same sex couples. But let’s continue on the usual basis I come across, where the male is the wealthier party and the female is not but she has care of the children.
In law there is no relationship between cohabitants simply because they live together. There are no obligations, rights or responsibilities created as there are for both parties on marriage. For cohabitants, living together is about who has the money and therefore the power, and who does not. He who has it, keeps it all.
The wealthier party can decide sooner or later to kick the poorer party out of his home (which he will have ensured is only acquired in his sole name therefore there will be no pay out) and there will be very little she can do about it except perhaps hold on for a few short months until she secures re-housing for her and her own children if there are any.
Leaving aside any Children Act claims for the joint children, and considering remedies only for the poorer party, she will find she has none. The wealthier party will have ensured she makes no relevant ongoing financial contribution to a house (assuming she could afford to do so) and therefore has no sustainable claim going forward.
With no money behind her, irrespective of what she has done to turn a house into a home, in law she will be left without a penny to her name. And there is nothing she can do about it. Even thirty years later if she has brought up the children but never worked and therefore had no opportunity to save or contribute to a pension, she has no claim, no entitlements and no income. She will potentially find herself on benefits and living in local authority housing whilst he retains his standard of living. More fool her, you may think. I agree. This is not a relationship to enter into with your eyes wide shut. It is very dangerous.
I have been calling for cohabitation law on this blog and elsewhere for years to remedy a grave social injustice and so have others whose voice counts far more than mine. It has fallen on deaf ears in government. Social justice and levelling the economic imbalance resulting from cohabitation is not a priority in these tough Brexit days; same as it wasn’t in the days of the last recession, and even less in those heady greed-filled days when banks were in freefall, lending money to anyone (usually male) who could produce a piece of paper with an apparent income on it. As the divorce rate was rising stratospherically throughout the 90s until now, the number of couples choosing to live together rather than marrying was commensurately rising.
Thus developed the genius, simple, male-orientated, response to ameliorate the impact of divorce: “Don’t. Get. Married.” More recently, where a marriage is unavoidably on the cards, the call has become: “Sign. A. Prenup.” Whether she signs or doesn’t, you may think, more fool her.
Sadly though, the consequences of this male-dominated financial strategy of not getting married does not simply benefit the male and adversely affect the female. One or both of this couple are likely to have their own children and/or children together, and the children will all likely be young. That’s where the main damage in such a relationship is truly done and the scene will be set for a repetition in the future when these children, who have had that type of childhood, grow up and follow the lead set by their parents.
You have probably seen these blended families out and about with their own children and the children of one or both of them as well, just one happy family. In law things are very different. If the biological parents aren’t married, the child has no legal father at all, unless that father has signed the birth certificate and/or has acquired parental responsibility. If the couple lives together and start to raise their own children with their partners acting as a step-parent, legally they aren’t step-parents either.
So children with no say in the matter will be taught to believe that X or Y is a step-parent when legally they are not and can disappear one day from their lives as easily as they came into it. As we’ve seen, the chances are high they might just do that. They are higher than if the couple was married. The damage done to children by those whom they have loved and adored should not be underestimated. Loss of a loved parental figure can severely impact and disrupt a child for life. So why take the risk?
What would I, a cynical lawyer, recommend?
A woman with or without children should never give up her home and her financial security simply to move in with another, no matter how much glitter there is on the surface. All that glitters I’m afraid, is not gold. And if she thinks that having a child brings financial security, she should think again.
This brings me back to where I began and whether I would still propose the motion that the institution of marriage is out of date?
Marriage was originally invented to provide protection and safety for women who needed it. There is a fascinating speech by Supreme Court Judge, Lord Wilson on the history of marriage entitled “The Long Struggle of Wives under English Law” of which I strongly urge a read. In the 21st Century it seems to me this struggle continues. The likelihood of cohabitation legislation to afford some protection to the economically weaker party is currently nil.
If asked now, I would vote against the motion rather than propose it. The institution of marriage is vitally needed and is therefore not out of date.