Published: 13th December 2019
Throughout most of history, the course of adult life has essentially been to marry, then have children, then stay with the same spouse until parted from them by death.
At least, that is the official version of events. In reality, children have been born “out of wedlock” for many years, and extra-marital relationships are absolutely nothing new either.
So perhaps it is less true that relationships are changing and more true to say that people and the law are becoming more open about realities such as cohabitation, divorce, civil partnerships and the need for fostering and adoption.
As time goes on and cultures evolve, it is becoming more and more common for couples to cohabitate. We have seen in the last decade alone that the number of cohabitating couples and families has increased by 25.8%.
Although UK society now largely recognises the principle of “common law marriages”, for the most part, the law does not.
This, however, is a tricky area as it is now becoming clearer that the lack of recognition of cohabitation in law may come into conflict with its recognition of human rights in general and the principle of equality in particular.
For example, back in 2018, Denise Brewster sued for access to her deceased partner’s pension benefits on the grounds that she would have been automatically entitled to them if they had been married and that the refusal to give her the benefit amounted to illegal discrimination.
She won her case, however, as many people have pointed out, the judgement in her favour opens up all kinds of further questions about the legal treatment of cohabitation and these have yet to be answered.
Pending answers to those questions, cohabiting couples are strongly advised to make their own arrangements regarding important matters such as the custody of children and the disposal of personal property in the event of their death and to make sure that these arrangements are formalised in a legally-recognised manner.
Unlike cohabitation, divorce is very much recognised in law; however, currently, “no-fault divorce” is not.
There have been attempts to introduce it, but until now they have fallen victim to lack of parliamentary time and given that Brexit is on the very near horizon, it is hard to see anything non-essential being put through the house any time soon.
What this means in practice is that for the foreseeable future, couples wishing to divorce will either have to separate for an extended period or demonstrate the irretrievable breakdown of the marriage.
Neither of these options is necessarily pleasant or conducive to a good (meaning at least amicable) ongoing relationship. This may not matter so much if there are no children (or at least no young children) but can turn into a huge issue if there are.
Fortunately, this is one area where the law and legal system does tend to do its best to alleviate the problems caused by its own shortcomings.
In other words, if a couple can reach an amicable and reasonable agreement between themselves, possibly with the help of mediators and competent lawyers, there is a very strong probability that the courts will simply “rubber-stamp” it without dwelling too much on the question of who is or is not at fault for what.
Due to recent updates, however, and following the Queen's speech in October 2019, no-fault divorce may be closer to becoming a reality. The ruling will be introduced to The Divorce, Dissolution and Separation Bill. As the ruling has not been passed at the time of writing, couples have the option of waiting or going through with the current divorce system.
Civil partnerships have been making the headlines quite frequently over the past couple of years and with good reason. Currently, the Civil Partnership Act 2004 states: ‘Two people are not eligible to register as civil partners of each other if … they are not of the same sex.’
This has prevented all mixed-sex couples from entering into a civil partnership. The fight for this change has given a voice to thousands of heterosexual couples who would like to receive the same benefits and treatment of married couples but without having to go through the religious process.
One couple who have been fighting for this change are Rebecca and Charles who started their campaign back in 2014. They finally received optimistic news in June 2018 when the Supreme Court announced “the refusal to allow opposite-sex couples to have civil partnerships ‘incompatible’ with human rights law”.
It is clear that although many couples continue to get married each year, there are a growing number of couples and families that wish to simply cohabit or want the opportunity of entering a civil partnership.
Even marriage itself is changing, as relationships are complicated and cannot be put in one simple tick box, how we separate from our other halves needs to become a fairer process, one which reduces the risk of breaking relationships down further.
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