Marriage, Civil Partnerships and Cohabitation

Critically analyse the argument that marriage, civil partnership and cohabitation have become interchangeable forms of adult relationship, open to all without discrimination on the grounds of gender, sexual orientation or religion. You may choose to answer this with reference to forming, being in and/or ending these forms of relationship.

Marriage, civil partnerships and cohabitation are very similar, however, there are some noticeable, and important, differences. These differences have resulted from the development of each type of relationship, and are shaped largely by religious and cultural factors. However, these factors are becoming less prominent and influential as this century develops, and therefore all three relationships are often used interchangeably. It is vital that these differences are understood, and each relationship should be differentiated.

In relation to the applicability of each relationship, although there is interchangeability between the forms of relationship, there are limitations preventing certain types of relationship. There are instances where a relationship is voided in the eyes of the law because a person is already married to another, or they wish to enter into a relationship with more than one other person. However, there are also certain limitations which differentiate on gender, sexual orientation or religion. Although, as aforementioned, they have been largely eroded, there are still differences.

Therefore, although there is certainly more interchangeability between marriage, civil partnerships, and cohabitation, this essay will argue that there are still differences between these types of relationships, and that these differences are important and should be borne in mind before entering into any of these types of relationships.

In terms of structure, first, each type of relationship will be defined and pertinent features will be drawn out. Thereafter, each type of relationship will be compared to one another in order to address their similarities and differences. At each opportunity, legal tools and techniques will be highlighted that one could use to offer the same amount of protection as the other types of relationship. This will culminate with a thorough analysis of the extent to which these types of relationship are interchangeable, and the most important differences to note.

The first type of relationship considered will be marriage:

Marriage

It is convenient to separate marriage into two categories: civil, and religious marriage. This position is the same across the UK; however, the way in which each type of marriage operates varies depending on which region of the UK the marriage takes place. Therefore, in addressing each of the two types of marriage, each region must be considered.

Civil Marriage

This type of marriage is legally binding, and the married couple will possess the same rights as a couple that have got married in a religious ceremony. However, the main difference is that the ceremony must be devoid of religious connotations. Therefore, you are married by a local council officer known as a registrar, as opposed to a priest or a vicar, and the marriage cannot take place at a church.

There are, however, required formalities necessary to be legally married. For example, you can only get married in certain places which have been approved like registry offices, and any other premises that have been approved by a local authority. Additionally, marriage must be conduced by a person, or at least in the presence of that person, authorised to register marriages in that district. Again, this ultimately depends on whether the local authority has approved them to administer marriages. Moreover, the marriage must be entered in the marriage register and signed by both parties, two witnesses, and the person who conduced the ceremony. The whole purpose of these formalities is to respect the solemnity of the ceremony and the legal and emotional relationship which the couple are about to enter into.

There are also rules in place which regulate who can and cannot get married in the eyes of the law. Heterosexual couples can get married across the UK in a civil ceremony. However, the rules in relation to same sex couples vary depending on which part of the UK the marriage takes place. In relation to civil marriage, the only place same sex couples cannot marry is in Northern Ireland. It is permitted in England, Wales and Scotland by virtue of the Marriage (Same Sex Couples) Act 2013. In the event that a married same sex couple travels to Ireland; they will be considered civil partners. The similarities and differences between marriage and civil partnerships will be considered below. Similarly, if a same-sex couple married abroad and travelled to the UK, they would also be considered married in the UK.

There are also other restrictions in place on who can get married. Young people cannot marry or – at least – require consent to get married. If you are 16 or 17 you cannot marry without parental consent. Both parents with parental responsibility must give parental consent. The situation is slightly different in Northern Ireland where a young person under 18 cannot marry without the consent of certain people. If you are younger than 16, you cannot get married in the UK. Another restriction is that a person cannot marry a relative. Therefore, the marriage is automatically void if a person marries a relative. There are also restrictions on how many people you can marry. Bigamy is not allowed in the UK, and a marriage to a person who is already married will be void. In this instance, a person can be prosecuted for entering into the second marriage; although this is not automatic.

Religious Marriage

Religious marriage is legally binding, like civil marriage, and adheres to a similar form and function. Therefore, this type of marriage must also be conducted by a person or in the presence of a person authorised to register marriages in the district; and the marriage must be entered in the marriage register and signed by both parties, two witnesses, the person who conducted the ceremony and, if that person is not authorised to register marriages, the person who is registering the marriage.

The major difference between the two types of marriage is that this type of marriage has religious connotations, and has symbolic meaning in the eyes of the church. Therefore, from a practical perspective, the ceremony will traditionally be in a church in front of a priest or a vicar. There will also be hymns, and readings; both associated with religion.

The rules governing religious marriage are partly governed by the religious body administering the marriage. Therefore, although the legal standing of the marriage is comparable, the rules as to who can and cannot marry vary. Same sex couples can only marry in a religious ceremony if the religious organization has agreed to marry same sex couples. Therefore, at present, they cannot marry in the Church of England or the Church in Wales. Similarly to civil marriages, same sex couples are not allowed to get married in religious ceremonies in Northern Ireland. Therefore, same sex religious marriages will automatically revert to civil partnerships in Northern Ireland.

Civil Partnerships

A civil partnership is a legal relationship which can be registered by two people of the same sex in line with the Civil Partnerships Act 2004. A civil partnership grants legal recognition to a relationship entered into by couples of the same sex. Therefore, additional legal rights and responsibilities will be granted.

The applicability of civil partnerships has been recently extended through the Supreme Court judgment of R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary). It was stated that the Civil Partnership Act 2004 was incompatible with the European Convention on Human Rights. Specifically, it was discriminatory and contravened a person’s right to a private and family life. Therefore, the onus lies with the UK government to extend civil partnerships to all those who want to be in a civil partnership.

This is important as it is recognition that civil partnerships are more than just an interim position, half way to marriage; but a separate legal union and a different form of legal relationship. In terms of what a civil partnership offers, it can offer three things. Firstly, it offers legal protection to both partners in the relationship. There is legal and financial protection for both parties in the event of the relationship ending, like in marriage. In a civil partnership, a couple is entitled to the same legal treatment in terms of inheritance, tax, pensions and next-of-kin arrangements as marriage.

Secondly, it is free from any religious connotations. Unlike religious marriage, civil partnership is not held in church and does not reference religion. Therefore, civil partnerships are a very good option for couples who want to legally recognize their relationship but do not wish to align themselves with any religion. As examined above, however, the other option is to undertake a civil marriage. Finally, civil partnerships offer an alternative that take objection to marriage as an institution and its associations with property and patriarchy. In the case of R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) the primary driver for challenging the Civil Partnership Act was an objection to marriage. They believes that the “legacy of marriage…treated women as property for centuries.” Whereas civil partnerships were a modern, symmetrical institution which treats both partners as equal. Therefore, it sets the best example for generations to come.

Therefore, since 2014, same sex couples (and, now, possibly heterosexual couples) have a choice as to whether to enter a civil partnership or marry. There are, however, many similarities between civil partnerships and civil marriages. For instance, both offer similar legal protection in terms of inheritance and tax provisions. Equally, there are similar formalities associated with civil partnerships. To register a civil partnership, both partners must sign a civil partnership document in front of two witnesses and a registrar. This is very similar to the marriage formalities.

There are differences between civil partnerships and marriage. Civil partnerships cannot involve religious connotations, and therefore the ceremony does not involve an exchanging of vows or the singing of hymns. However, this is the same as civil marriages. Another difference is that the terminology is not the same as that used in marriages. Each partner is referred to as a “civil partner”, as opposed to a “husband” or “wife”. This, again, is not a significant difference as it might be a different form, but its substance is largely the same as examined above.

The biggest difference between civil partnerships and marriages is that a civil partner cannot use adultery as a reason for dissolution of the partnership. This is opposed to marriage where adultery is a ground for divorce.

Cohabitation

Cohabitation is an arrangement where two people are not married, but are otherwise romantic or intimate, and these people live together. These people do not have the same legal standing as couples who are married.

The best example of the differences between cohabitating couples and married couples comes to property ownership. A married couple living together owns the property together, in unity. Therefore, when the couple wish to sell the house, they are entitled to half of the proceeds from sale each. This is not necessarily the assumption with a cohabiting couple. The court, in these instances, look to find a trust over the land. In the case of trusts of a family home, there are two stages which the court use to exercise their discretion in finding such a trust. First, the court decided whether there is a constructive trust; second, the court quantifies the respective beneficial interests.

The ways in which these stages apply differ depending on whether the cohabiting couple purchased the house together in their joint names, or in one of their names.

In sole name cases, the leading authority is Lloyds Bank v Rosset. Lord Bridge stated two ways in which a cohabitant claimant can get a beneficial interest in the property of their partner. First, there could be an agreement, arrangement or understanding reached between them that the property would be shared beneficially and that the claimant has acted to their detriment in reliance on this agreement. Secondly, in the instance that there is no evidence of a prior agreement or arrangement, the court looks to the conduct of the parties as a basis from which it infer a common intention to share the property beneficially. The evidence which the court will look to decide whether the conduct is sufficient to pass the second test can be, for example, direct contributions to the purchase price, and contributions to the mortgage installments.

In joint name cases, Stack v Dowden confirmed the principle that “equity follows the law.” Therefore, there is a presumption that there is a common intention constructive trust which results in joint beneficial ownership. The onus then lies on the disputing party to demonstrate that the beneficial interests were divided differently from that displayed on the title. In determining whether the beneficial interests differ, the court seek to ascertain the parties’ shared intentions – whether, actual, inferred, or imputed – in light of the court “undertaking a survey of the whole course of dealing between the parties and taking account of all conduct which threw light on the question what shares were intended.” The court can draw on a broad range of evidence to determine the common intention of the parties, including – but not limited to – advice, discussions, reason for the purchase, and general financial affairs between the parties.

A cohabiting couple can, however, use them living together to influence some legal assumptions. The starkest example of this is if a couple lives together, and is also engaged. Although engagement (and living together) have come about through cultural reasons, they can also be used to show an intention to marry, which is relevant in immigration law; and can also influence how real property is distributed upon sale.

The major development with cohabitation is the introduction of cohabitation contracts, which allows cohabitating to largely resemble marriage and civil partnerships. A cohabitating agreement is a form of legal agreement reached between a couple that have chosen to live together but are not in a civil partnership or married. The necessary implication is that this can be between a heterosexual/homosexual couple. The cohabitation agreement allows the couple to be treated like a married couple because it can regulate their property rights and what arrangement might be made. Importantly, the scope of the agreement can vary, both in terms of its content and temporal implications. For example, in respect of changes in scope, a cohabitation agreement can be used for: (1) determining child support payments; (2) calculating mortgage payments before applying for a mortgage; and (3) calculating the proportion each party contributes to debt.

These agreements can also act to regulate the arrangements only for the period during cohabitation, or resemble a pre-nuptial agreement where the agreement allows the parties to determine in advance who will keep specific assets that have been purchased jointly. Therefore, it is completely possible to draft a cohabitation agreement so that the rights and responsibilities resemble marriage or civil partnership.

Should marriage, civil partnership and cohabitation be interchangeable forms of adult relationship?

We have already examined some differences and similarities with the three forms of relationship, however, we will now explore more deeply. Jurisprudentially, all three relationships could cover the same instances due to the way in which they have been created. Marriage had religious routes, however, due to a diversification of religion, including a growing amount of atheists, it was not appropriate to have marriage as a purely legal instrument due to the prominence the law places of the marital institution. Therefore, civil marriage was introduced to offer a solution for those who are not religious, or profess to worship another religion. Thereafter, civil partnerships were introduced to offer same sex couples the same legal rights as heterosexual couples as LGBTQ rights became more prominent in the late 20th century and early 21st century. In terms of cohabitation, there was a seismic shift in the amount of people cohabiting in the late 20th century as religious attitudes became more relaxed to pre-marital sex. It was a likely development that those in this situation would start asking for similar rights as their married contemporaries. As the world is becoming more diverse, and there is a greater focus on equality and acceptance, it would be a perfectly logical development to allow these forms of relationship to be interchangeable, if that what the party’s want. The fundamental point underpinning it all is that society should be accepting, and the law should be accommodating, of the personal choices individuals make.

Conclusion

To conclude, the three forms of relationship are very similar. Marriage and civil partnerships are the closest to one another, and will likely become closer in light of the Supreme Court judgment. The fundamental tenet underpinning the judgment was that a person should have a choice as to how they form a legal relationship with another, and this necessarily includes ensuring there are legal, non-legal, traditional, and non-traditional options. Civil partnerships offer a perfect alternative to marriage.

In terms of cohabitation, there are fewer similarities because living with another does not fundamentally alter the presumptions the law applies in the case of an unmarried couple. However, it is possible to shape cohabitation so that it more closely resembles marriage or civil partnership. This is accomplished through entering into a cohabitating agreement, and then the relationship is dictated by the terms of this agreement. Without this agreement, although the results are capable of being the same through judicial interpretation of the relationship, the presumption is not as strong that it is intended that possessions and real property be split equally.

Therefore, although these forms of relationship are not currently interchangeable, they are developing so that it is certainly possible for them to be interchangeable. It again rests with the point that couples should freely be able to enter into whatever legal relationship they wish to without being unduly discriminated against, and the Supreme Court have advanced this goal in their recent judgment.

Bibliography

Legislation

Marriage Act 1949

Inheritance (Provision for Family and Dependants) Act 1975

Marriage Act 1994

Civil Partnerships Act 2004

The Tax and Civil Partnership Regulations 2005.

Comment: This is a primary source of information and is similar to legislation in that it is binding, and the judiciary interprets how regulations and legislation apply to the specific case before them. Where possible I have attempted to use primary sources of information, as opposed to secondary sources where the information is an interpretation of the primary source. The advantage of using primary sources is that it is not open to be misinterpreted because it is the source of information for other people to interpret. Therefore, primary sources are definitely valuable to use in a legal report.

I have specifically tried to use a wide range of law to show a breadth of understanding. Therefore, although the question is aimed specifically at Family Law, I have tried to incorporate other areas of law (such as tax, inheritance, and land law) in order to show how wide ranging the issues are, and how I have an understanding in how these legal questions fit together.

Marriage (Same Sex Couples) Act 2013

Textbooks

John Eames et al, Cohabitation Law, Practice and Precedents, 7th Edition (June 2017).

Darlington, Cohabitation: Law and Precedents, 11th Edition (June 2017).

The Rt Hon Lady Justice Black et al, Family Court Practice (The Red Book), 24th Edition (May 2017).

Comment: This is a Family Law Practitioners’ Book, and Chitty on Contracts is a Contract Law Practitioner’s Book. Practitioner texts are very comprehensive legal texts which are commonly used by practitioners such as solicitors and barristers. They are very detailed but are infinitely valuable as the majority of authors try to state what the law is, and possible interpretations of the law; as opposed to examine the jurisprudence behind the law in immense detail.

Therefore, for this report, I have used a selection of practitioner texts so that it was possible to accurately and concisely state the legal position, before examining the similarities and differences between marriage, civil partnership and cohabitation.

Chitty on Contracts. 1 (31st ed.). London: Sweet & Maxwell. 2017,

Books and Articles

Harpum, Bridge et al, Megarry & Wade: The Law of Real Property (8th Edition)

John Bingham, “Only one in four couples living together plan to marry” The Telegraph (London, 10 January 2014).

Jill Papworth, “Why a cohabitation agreement is essential for non-married couples” The Guardian (London, 9 March 2013).

Rovnick, Naomi, “UK Supreme Court backs heterosexual civil partnerships” Financial Times http://www.ft.com/content/178fee64-79ed-11e8-8e67-1e1a0846c475 (accessed 28 June 2018)

Comment: This is a secondary source of information and comes from a newspaper publication. Although newspaper publications are not commonly found in legal writing, I believe it adds something to this piece of work. This issue is very current with the most recent Supreme Court decision being decided one week before I wrote this comment. Therefore, using newspaper articles is a great way to introduce public opinion into the essay and show how relatable and applicable it is to the general public. I only use newspaper articles to cite opinions, and not fact. This is because – in citing fact – I prefer to use primary sources of information. However, for opinion, it is really useful.

Cases

R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32.

Comment: This is the most recent Supreme Court case on this topic at time of writing. Since this area is so current and is debated daily, it was vital to stay on top of current affairs. Therefore, I constantly checked legal news sites in order to be fully aware of any developments in the law.

Using the most up to date case is incredibly important in legal writing because each subsequent decision could overrule the previous decision through the application of precedence. This current case is a great example of this because in the Court of Appeal the decision reached was at ends with the Supreme Court decision, and the Supreme Court overruled the decision.

Stack v Dowden [2007] UKHL 17

Jones v Kernott [2011] UKSC 53

Lloyd’s Bank v Rosset [1990] UKHL 14

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