The Institutions of Marriage, Civil Partnerships, and the Rise of Cohabitation

The traditional institutions of marriage and civil partnership (CP) are facing significant shifts in their cultural significance and legal standing, influenced by societal changes and the rise of cohabitation as an alternative form of intimate relationship. The legal and social landscape is evolving, with these changes reflecting broader transformations in attitudes towards relationships, gender roles, and personal autonomy.

Marriage: Central and Peripheral in Family Law

Diduck and Kaganas (2006) describe marriage as both "central" and "peripheral" to family law, highlighting an inherent paradox. On one hand, marriage remains a foundational legal institution, conferring specific rights and responsibilities. On the other hand, its cultural and legal importance has diminished, as alternative forms of relationships, such as cohabitation, gain acceptance.

Rosemary Auchmuty, in her work Law and the Power of Feminism, discusses the decline in the cultural significance of marriage. In the 1950s, marriage was not only the norm but almost a mandatory status for women. Today, however, it has become more of a lifestyle choice, with many women in the UK opting for alternatives.

Factors Contributing to the Decline of Marriage

Auchmuty identifies several key reasons for the decline of marriage:

1. The Sexual Revolution of the 1960s: This period marked a significant shift in societal norms, where the necessity of marriage for sexual relationships diminished. The liberalisation of attitudes towards premarital sex contributed to this change.

2. The Introduction of the Pill: Contraceptive advancements, particularly the Pill, gave women greater control over their reproductive choices. This autonomy allowed for family planning outside the confines of marriage, gradually extending to unmarried women as well.

3. Greater Access to Education: The 1944 Education Act, which made education free, led to an increase in higher education attainment, especially among women. With education came greater independence and the ability to make informed life choices, including the decision to marry or not.

4. Divorce Law Reform: Changes in divorce laws made it easier for couples to separate legally. As a result, many individuals, particularly women, chose not to remarry, further contributing to the decline in marriage rates.

5. The Rise of Cohabitation: Cohabitation became increasingly accepted as a legitimate form of partnership, leading many to view marriage as a choice rather than a necessity.

6. Feminist Critique of Marriage: Feminism played a crucial role in challenging the traditional gender inequalities embedded in marriage. Feminist scholars and activists highlighted how marriage often perpetuated unequal power dynamics, leading to a broader questioning of its role in society.

Intimate Relationships in Family Law

Rob George, in Ideas and Debates in Family Law, outlines a hierarchy of intimate relationships, which reflects how the law treats different types of partnerships:

1. Privileged Relationships: These include marriage and civil partnerships, which are legally recognised and confer a wide range of rights and responsibilities.

2. Accepted Relationships: Cohabiting couples fall into this category. While they do not have the same legal status as married couples, certain legal protections can be applied, particularly in property law.

3. Non-Recognised Relationships: These are relationships that the law neither supports nor actively discourages. There is no legal framework to govern these relationships, leaving the parties without legal protection.

4. Forbidden Relationships: Relationships such as incestuous unions fall into this category, where the law imposes sanctions due to the perceived harm or societal disapproval associated with them.

The Rise of Cohabitation

Barlow and Smithson (2010) developed a typology of cohabiting couples, exploring the varied motivations and assumptions behind cohabitation. They identified four distinct types of cohabiting couples:

1. Ideologues: These couples have ideological objections to marriage, viewing cohabitation as a more egalitarian arrangement. They reject the traditional institution of marriage in favour of a relationship that they perceive as more equal.

2. Romantics: For these couples, cohabitation is seen as a step towards marriage. They may view it as a trial period before committing to marriage or as a natural progression in their relationship.

3. Pragmatists: These couples cohabit for practical reasons, such as financial benefits or legal convenience. Their decision to cohabit may be based on practical considerations rather than emotional or ideological factors.

4. Uneven Couples: In this dynamic, one partner desires marriage while the other does not, creating a power imbalance. This scenario often leads to tension, as the partners have differing expectations and goals for the relationship.

Conclusion

The institutions of marriage and civil partnership are undergoing significant changes, with cohabitation increasingly recognised as a viable alternative. The decline in marriage rates can be attributed to a combination of social, cultural, and legal factors, including the sexual revolution, advances in contraception, greater access to education, and the feminist critique of traditional gender roles. Family law continues to adapt to these changes, reflecting a broader societal shift towards diversity in relationship forms and a move away from the traditional hierarchy of intimate relationships.