In July 2022, the Law Commission published its 500 final report calling for the modernisation of weddings law in England and Wales (I blogged about it for Law and Religion UK)
Following that, the report has presumably been gathering dust – and that is how it looks to remain according to the party manifestos for the 2024 General Election.
The Liberal Democrat Manifesto does pledge reform of marriage law – calling for the recognition of humanist marriage, the enactment of the Law Commission’s wider proposals and cohabitation law reform. It pledges to:
Presumably the intention here would be for humanist marriage to be recognised first and it is unclear whether the second bullet would mean the recognition too of ceremonies by independent celebrants. But at least the Lib Dem manifesto recognises that marriage law requires reform.
By contrast, the Conservative manifesto does not mention the issue – despite the fact that it was the Conservative Government who asked the Law Commission to carry out the research!
And Labour manifesto mentions only cohabitation reform:
Cohabitation Reform is Needed
There is a clear need for reform on the law of cohabitation. Office of National Statistics figures from 2013 show that the proportion of non-married women aged 18 to 49 who were cohabiting increased from one in ten in 1979 to over a third in 2011. Moreover, many of these couples wrongly think that they have “common law marriage” rights.
The British Social Attitudes Survey conducted in 2018 showed that almost half those surveyed explicitly agreed with the erroneous statement that “couples who live together for a period of time have a common law marriage which gives them the same rights as married couples.”
Yet, there are no cohabitation rights on relationship breakdown under English law. Other than where there are children as a result of the relationship or where the couple have been renting, if a cohabiting relationship breaks down, then any financial and property disputes are dealt with through the law of property which focuses on the question of ownership rather than fairness.
What Cohabitation Reform will not Achieve
Providing rights to cohabitants will not solve the issue that English law does not currently recognise non-religious marriages such as those ceremonies that are conducted by belief organizations such as Humanists UK or by independent celebrants.
Marriage law currently provides no means by which these can be legally binding in their own right. Unless and until such couples also undergo a civil wedding ceremony under the Marriage Act 1949, they have the same legal status as cohabiting partners. Aside from the cost of undergoing a separate ceremony, there is the question of choice: who, after all, refers to their wedding as the happiest days of their life?
What Cohabitation Reform Could Help With
Cohabitation rights could provide some redress in relation to what may be styled “unregistered religious marriages”: these exist where the couple undergo a religious ceremony that does not comply with the Marriage Act 1949.
Religious marriages are recognized under the Act but in relation to religious weddings other than Church of England, Church in Wales, Quaker, and Jewish ceremonies, the ceremony must take place in a registered place of religious worship in order to be legally binding. Otherwise, though the couple are married in the eyes of their faith, they are not married in the eyes of the law.
There are several reasons why couples might have unregistered religious marriages: it may be the choice of the parties (in some communities, religious marriages effectively allow the couple to date, to be together without a chaperone); it may be because the parties are unsure of the law; or it may be because it is difficult or impossible for a religious ceremony reflecting their beliefs to be held in a way that is compatible with marriage law requirements, because the religion does not have a building or has a tradition of marriages taking place outside places of worship.
Reform of marriage laws along the lines recommended by the Law Commission would help with this issue by changing the law to focus on persons rather than buildings.
But cohabitation rights would also help – because those who are in unregistered religious marriages are seen under State law as cohabitants. This means that furthering cohabitation rights would give such couples remedies under State law on grounds of relationship breakdown.
However, it is also important not to take an overly paternalistic approach. If the parties have made an autonomous choice not to marry, then this should be respected. The lead of other jurisdictions should be followed to allow couples to opt out of such cohabitation-based protection while also ensuring that this is voluntary and fair.
This opt out rather than opt in requirement would ensure that cohabitation rights are afforded to couples who are choosing to cohabit thinking that they will accrue marriage-like legal rights, as well as those where there is an intention to marry but the couple does not get around to it (such as the couple in Her Majesty’s Attorney General v Akhter [2020] EWCA Civ 122).
What Cohabitation Reform Could Look Like
There are a number of examples that can be used to develop such a scheme. These include the Scottish system; the Irish system; a Law Commission report that is almost fifteen years old (Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307, 2007)); and two private Member’s bills that have been discussed in Parliament but have not become law: namely, Lord Lester’s Cohabitation Bill in 2009 and Lord Marks’ Cohabitation Rights Bill, which was first introduced in 2013 and mostly recently reintroduced in February 2020.
From these precedents, three main characteristics of a scheme providing for cohabitation law rights on separation can be distilled into three parts.
First, the statutory scheme would apply to cohabitants on separation provided that they have not opted-out.
Second, the scheme would apply if the couple had been cohabitants and this would be understood as having a child together or living together for a certain amount of time.
Third, the scheme would allow a cohabitant to seek a financial order on separation if certain circumstances are met. Most approaches, however, require evidence of an advantage or disadvantage. This evidence is usually economic.
Conclusion
In an ideal world, reform of weddings law and cohabitation law reform are both needed – as recognised by the Lib Dems.
Reform of the law on getting married can resolve the issue of non-religious marriages and can mitigate the problem of unregistered religious marriages, but it would do nothing for cohabiting couples.
Reform of the law on cohabitation, on the other hand, could be expected to resolve the issue for cohabiting couples and would provide some redress for those in unregistered religious marriages, but it would not recognize their relationships as such and would not recognise non-religious marriages as marriages.
Labour’s proposal is preferable to the silence from the Conservatives but a lot will depend upon the speed and detail of the actual proposal.
It is also worth recognising that failing to act on marriage law reform may not be an option. In R (On Application of Harrison) v Secretary of State for Justice [2020] EWHC 2096 (Admin), the High Court held that not giving legal effect to humanist weddings, was discriminatory and was only justified at the time because of the ongoing review of the law by the Law Commission. Now, presumably that justification no longer applies.
Perhaps reform of marriage law will not be destined to just gather dust after all.
For more on this issue see my book Religion and Marriage Law: The Need for Reform and my Written Evidence to Parliament
Russell Sandberg 