Marriage and the Rights Associated to it
Unlike marriage, most other forms of relationship neither involve any complex registration procedure, nor do they involve difficult measures to dissolve them as the entire process depends on the couple who are involved in it. Yet, marriage is still seen as the most reliable and convenient form of relationship for reasons that many would agree to, one of which is the different rights afforded to married couples and civil partners as compared to cohabitants. This is the main point of discussion in this essay where the writer shall point out the distinction between the different forms of relationship along with the distinct rights that are vested on such different forms, thereby assessing whether such distinct rights should be offered to them.
Marriage and the Rights Associated to it
Marriage, traditionally considered as the ‘holy union’ of a man and a woman is surprisingly not the oldest form of legal relationship, yet it is undeniable that it is considered to be the most convenient and trusting form of legal relationship that a couple could enter into. Marriage is universally recognised and bound within the rules of law in every jurisdiction. Every modern state has its own marital law which needs to be followed by people who are attempting to pursue it, like getting the married registered or in case couple seek to dissolve it through legal process of divorce. Not just for the factor of being lawfully wedded couple in the eyes of the society, one of the most vital perks of marriage is the rights that the wedded couple enjoy over each other in the bounds of marriage.
In terms of rights in marriage, what comes to mind first is the rule of disposition of property of one’s spouse when married. It creates a “definite status” upon the wedded couple, which automatically confers duties as well as rights upon one another as held by Lord Simon of Glaisdale in The Ampthill Peerage case. The rights could be proved through with the help of the marriage registration certificate and divorce papers, which confirms the formal status of it. In regard to rights, the spouse shall be vested with the right to inherit his or her spouse’s property, while in regard to duty, the spouse, who is the significant earning member shall have the responsibility to financially support and maintain his or her spouse. This is the usual norm of the bounds of marriage, which is makes it a dependable institution till date. In addition, the factor that it is difficult to get out of a marital tie through the complex process of judicial separation and divorce is what makes it a stronger bond in comparison to other forms of relationship like cohabitation. Further, a person shall have the right to accommodation with his or her partners, thus indicating the duty of a spouse to provide accommodation to the other as held under the Family Law Act 1996. This particular right brings in different other rights along with it, like the right not to be evicted from the matrimonial home and the right to fetch rent as maintenance. Thus, referring to these beneficial rights that the institution of marriage offers, it is still considered as the best form of legal relationship a couple could have, when comparing to the others.
Civil Partnership and its Limited Perks
Contrary to the concept of ‘living together’ or cohabiting, couple could choose to get their status registered as civil partnership. It is a legal relationship where two people, not related to each other yet willing to live together, get themselves registered as civil partners. Until the time homosexual relationships were allowed to enter the bounds of marriage under the law, the formal relationship of civil partnership was made open to same-sex couples. Registration of civil partnership gives legal recognition to a relationship, especially to those who have been living or cohabiting together. It is governed by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, thus confirming it to be a legal endeavour, attempting to offer recognition to anyone who seeks an alternative approach to the traditional system of marriage. It gives the couple a recognition as each other’s legal and social partners, thereby a having an exclusive right over each other, in terms of fidelity and companionship in the social structure, thus restricting the liberty to having multiple partners at a time. The civil partners shall remain so until one of them dies, unless they decide to dissolve it by an application before the court, which seems quite similar to the set-up of a marriage.
However, unlike marriage, civil partnership does not offer a vast range of rights and duties over the partners in respect to each other. This includes the right of inheritance, right to accommodation or any other right that marital couples enjoy within the bounds of marriage.
Cohabitation, in contrary to marriage or civil partnership, is referred to as two adults, belonging to same or opposite sex living together in a committed and intimate relationship, who are: a) not married to each other, b) not registered as civil partners, and c) not related within the “prohibited degrees of relationship”. This type of relationship was observed in abundance, especially by same sex couples, before the incorporation of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act in 2010 and later Marriage (Same Sex Couples) Act in 2013. Nevertheless, it is still practised by couple who do not wish to get bound by a legal tie where it is troublesome to get out of such binding easily.
Cohabitants are not vested with same legal rights and duties as compared to married couples. However, in the landmark case of Kimber v Kimber, the definition of cohabitation was laid down by the court where it was held that cohabitation involves:
- Parties living under the same roof,
- Sharing duties of daily life,
- In a stable and permanent relation,
- Have arranged their finances mutually.
However, they do not require formal or legal intervention to end their relationship, unlike marriage and civil partnership. They could mutually decide to handle finances required for their cohabitation together, however, neither of them shall have a right to claim maintenance or accommodation from each other, as observed in Windeler v Whitehall. In this regard, it is a hue and cry situation amongst the people who wish to pursue cohabitation, especially pertaining to the securities it should yet does not provide to the couples involved.
Cohabitation and its Limitations
Unless married, the majority of the parental responsibility of the child automatically moves to the mother. While, the mother’s partner bears the responsibility only if: a) he is mentioned as the father of the child on the birth certificate, b) he obtains a parental responsibility order or gets into a shared parental responsibility agreement with the mother, or if gets married to the mother, c) he is the registered guardian of the child provided all other person bearing such responsibility has died. However, the course of such responsibility changes if the cohabiting couple separates, and thus the decision of parental responsibility shall be depending upon the best interest of the child.
On the other hand, marital rights vest equal parental rights and responsibility on both the parents, especially if both of them are the child’s biological parent. Thus, the child, as per usual marital laws, shall enjoy financial support from both the parents as a matter of right. Both the parents shall have a right to appoint a guardian unlike cohabitation where the mother could only do so. Nevertheless, financial support or the right to inheritance shall be the same in case of both marriage and cohabitation, where the child shall have the right to inherit his parent’s property.
Although the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 attempts to cover some provisions on cohabitation, yet it fails to provide the bounds or requisites which would define it on book. It also failed to prescribe a time frame for cohabitants with children, seeking legal recognition as co-parents of one or more children. In the case of Re Brewster for Judicial Review (Northern Ireland), the Supreme Court had unanimously allowed the parties to file an appeal before it in regard to a prayer for entitling unmarried cohabitants receive the partner’s superannuation benefit as survivor’s pension under the pension scheme of the local government. The appeal was not allowed but was positively supported by the Court, thereby allowing the petitioner to derive the benefit of her partner’s pension after his death. Further, in the case of Re Siobhan Mclaughlin for Judicial Review, the Supreme Court had highlighted a practise of discrimination in cases where institutions fail to pay a widow’s pension to her unmarried cohabitant, who has been supporting her for a significant amount of time before she passed away.
In a speech, Baroness Deech in 2014 had mentioned that the government’s inability to vest rights upon unmarried cohabitants is an attack on their liberty. Thus, it is of utmost necessity that the government must take the imperative step to recognise the rights that cohabitants deserve in their relationship and thereby enforce them under a dedicated legislation to support cohabitation, as much as marriage and civil partnership.
The first and foremost recommendation in the quest to formalise and offer rights in a cohabitation relationship is enacting the much-awaited Cohabitation Rights Bill which was introduced in the 2014-15 session of the Parliament, yet no progress was seen ever since. Thus, the following recommendations are necessary so that they are considered in favour of offering rights to the unmarried cohabitants who too deserve formal recognition and benefits in their relationship.
- Cohabitation without children may not have immediate rights, however, cohabitants living together for at least 3 years or having a child who they co-parent must have same rights as married couple or civil partners.
- Upon living for a significant time together, a cohabitant must be given the right to inherit a portion of their partner’s property, if one has died intestate.
Conclusion
It could therefore be concluded on a positive note that a common hue and cry has been recognised amongst today’s generation to desire the recognition of the relationship of cohabitation as much as marriage or civil relationship. Claimants of this notion has proactively argued challenging the stability of marriage, for it could be as fragile as a fling, if not cared well by the couple involved. Thus, the decision whether to live in cohabitation should be left to the couples, instead of alluring them to decide otherwise under the pressure of securing their relationship by marriage as it offers ‘rights’. Therefore, this disparity should be abolished with immediate effect and bring the two institutions on a similar pedestal.
Case laws
Ampthill Peerage [1977] AC 547
Kimber v Kimber [2000] 1 FLR 383
Re Brewster for Judicial Review (Northern Ireland) [2017] UKSC 8
Windeler v Whitehall [1990] 2 FLR 505
Statutes
Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010
Family Law Act 1996
Marriage (Same Sex Couples) Act 2013
Books and Journal articles
Barlow, Anne, and Grace James. “Regulating marriage and cohabitation in 21st century Britain.” The Modern Law Review 67, no. 2 (2004): 143-176.
Barlow, Anne. “Cohabitation law reform–messages from research.” Feminist legal studies 14, no. 2 (2006): 167-180.
Carver, Natasha. “‘For her protection and benefit’: the regulation of marriage-related migration to the UK.” Ethnic and Racial Studies 39, no. 15 (2016): 2758-2776.
Chan, Winnie. “Cohabitation, civil partnership, marriage and the equal sharing principle.” Marital Rights (2017): 365-384.
Gilmore, Stephen. Hayes and Williams’ family law. Oxford University Press, 2020.
Perelli-Harris, Brienna, Stefanie Hoherz, Fenaba Addo, Trude Lappegård, Ann Evans, Sharon Sassler, and Marta Styrc. “Do marriage and cohabitation provide benefits to health in mid-life? The role of childhood selection mechanisms and partnership characteristics across countries.” Population Research and Policy Review 37, no. 5 (2018): 703-728.
Websites
‘Living Together And Civil Partnership – Legal Differences’ (Citizens Advice, 2022) <https://www.citizensadvice.org.uk/family/living-together-marriage-and-civil-partnership/living-together-and-civil-partnership-legal-differences/> accessed 5 April 2022
‘Living Together And Marriage: Legal Differences’ (Citizens Advice, 2022) <https://www.citizensadvice.org.uk/family/living-together-marriage-and-civil-partnership/living-together-and-marriage-legal-differences/> accessed 5 April 2022
‘The Law Of Marriage’ (2022) <https://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/relationships/overview/lawofmarriage-/> accessed 5 April 2022
Written Evidence From Anne Barlow, Professor Of Family Law, University Of Exeter [HAB0366] (Parliament Committee UK 2021) <https://committees.parliament.uk/writtenevidence/38054/pdf/> accessed 5 April 2022
Order an Essay Now & Get These Features For Free:
Turnitin Report
Formatting
Title Page
Citation
Outline
