Is there any point in getting married?

Marriage rates have been in long term decline since the 1970's, nearly half of all marriages end in divorce, cohabitation is the fastest growing family type and by the end of this year civil partnerships will be open to all. Against that backdrop, is there any point in getting married? This article explores, in a light hearted way, the pros and cons of marriage as against other forms of relationships.

Marriage falling out of fashion

Marriage reached its peak of popularity in 1972 and since that time marriage rates for opposite sex couples went into long term decline until 2009. Figures from the Office for National Statistics (ONS) show that there has been a mixed picture since then, affected to some extent by the introduction of same sex marriages in England and Wales in March 2014. However, marriages were at their lowest level ever in 2015.

Why might this be the case?

The cost of getting married may be off-putting to many couples. Last year it was estimated that the average wedding now costs £30,355. Many couples are perhaps preferring to spend this money on a deposit for a home together or travelling.

We live in a more secular society now meaning many couples will not feel the need to formalise their relationship in that way and any social stigma attached to "living in sin" has been removed.

The invention of the contraceptive pill in the 1960s which has reduced the likelihood of accidental pregnancies may mean that there are fewer couples getting married as a result and the advancement of the rights of women since the 1970's staring with the Equal Pay Act 1970 and Sex Discrimination Act 1975 may have led to women choosing not to marry as they are better able to live independently.

Perhaps though, an increasing awareness of the high failure rate of marriage and that it often doesn't lead to living "happily ever after" could be a factor. The latest figures from the ONS show that 42% of all marriages will end in divorce.

Anthropologist Lionel Tiger wrote in 1980 "It is astonishing that, under the circumstances, marriage is still legally allowed. If nearly half of anything else ended so disastrously, the government would surely ban it immediately. If half the tacos served in restaurants caused dysentery, if half the people learning karate broke their palms, if only 6% of people went on rollercoaster rides damaged their middle ears, the public would be clamouring for action. Yet the most intimate of disasters ……. happens over and over again. "

Cohabitation on the increase

Cohabitation is officially the fastest growing family type, with the numbers of cohabiting couples doubling from just over 1.5 million 20 years ago to 3.5 million families in 2017. The Marriage Foundation estimates that cohabiting parents make up 19% of all couples with dependent children.

In 2017 there were 19 million families in the UK - up by 15% from 1996 which is similar to the growth in the UK population during that period. Of these there were 12.9 million married or civil partner couple families in 2017 and so this remains the most common type of family. There are also 2.8 million lone parent families.

What is marriage?

The Oxford Dictionary defines marriage as "the legally or formally recognised union of two people as partners in a personal relationship (historically and in some jurisdictions specifically a union between a man and a woman)". In England and Wales the law relating to marriage is governed by the Marriage Act of 1949 which was amended by the Marriage (Same Sex Couples) Act 2013 to permit same sex couples to marry.

What is a civil partnership?

The Civil Partnership Act 2004 was introduced to create a civil union which allowed same sex couples to formalise their relationship and to obtain essentially the same rights and responsibilities as a civil marriage. It was really a halfway house at the time as the government declined to extend marriage to same sex couples. The Marriage (Same Sex Couples) Act 2013 included a provision to allow civil partners to convert their civil partnership to a marriage should they wish.

Since that legislation was introduced same sex couples have been able to opt to formalise their relationship either by way of marriage or by way of a civil partnership. A legal challenge was brought by an opposite sex couple, Rebecca Steinfeld and Charles Keidan, who said they wanted to enter a civil partnership rather than to marry because they were uncomfortable with the patriarchal origins of marriage and did not consider that it reflected a truly equal relationship. They brought their challenge to the Supreme Court who ruled in June 2018 that only allowing same sex couples the option of a civil partnership was incompatible with the European Convention on Human Rights and the government passed legislation in March of this year which will open up civil partnerships to all by the end of 2019.

What is cohabitation?

Cohabitation is defined by the Cambridge Dictionary as "the act of living and having a sexual relationship with someone, especially someone you are not married to". There is no specific legislation that regulates cohabitation or the rights and responsibilities of cohabitants.

There is a commonly held misconception that couples who live together are in a "common law marriage". New research published this January shows that 46% of people in England and Wales incorrectly believe cohabiting couples have the same rights and responsibilities as those who are married or in a civil partnership. Worryingly the figure was higher for those actually in a cohabiting relationship (48%) for those who would be the most vulnerable in the event of a cohabiting relationship breaking down being those with children (55%).

For the purpose of claiming or asserting some legal rights it is necessary for the parties to have been living together for a certain period of time - for example for the cohabiting partner of a deceased person to bring a claim under the Inheritance (provision for family and dependants) Act 1975 the applicant must have been living with the deceased during the 2 years prior to their death.

Marriage - the pros

On a birth - If you are married and have children together then the father will automatically have parental responsibility for your children whether or not they are named on the birth certificate. Parental responsibility is "all of the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and its property" (section 3(1) Children Act 1989). It is not a right to see a child and it is not connected to the payment of child maintenance but it relates to the right to be involved in important decisions in relation to the child's upbringing including issues of religion, medical treatment and their education.

On a death - If you do not have a Will then where you are married or in a civil partnership your estate will automatically pass to your surviving spouse or civil partner. If you feel that your spouse or civil partner did not make adequate financial provision for you on their death and you bring a claim under the Inheritance (provision for family and dependants) Act 1975 then that claim is assessed more generously than if you had been in a cohabiting relationship. There are generous inheritance tax exemptions which mean that anything that you or your spouse leave to one another is exempt from inheritance tax on the death of the first of you and you can pass on any unused allowances meaning that a married or civil partner couple are currently able to leave up to £950,000 in assets inheritance tax free depending on the precise circumstances. This sometimes leads to what are commonly termed "death bed marriages".

On marriage/civil partnership - There are other tax advantages to being married. It may be possible to claim the marriage tax allowance which is a tax break currently worth up to £1,150 a year.

For capital gains tax purposes married couples and civil partnerships can transfer assets freely between each of them without triggering a capital gain. This continues for the tax year in which a couple separate permanently. In that situation principal private residence relief also provides an extended period to allow the couple to transfer their main home without it triggering capital gains tax.

Transferring assets between spouses can produce income tax planning benefits if an income producing asset, such as lettings or shareholdings, is transferred to a lower tax rated paying spouse, however, it is important to be aware that there could be implications in the event of a later divorce if an asset has been transferred into joint names or another party's sole name.

On divorce/dissolution - On divorce or the dissolution of a civil partnership the court can be asked to make wide ranging financial orders for the sale of assets, the transfer of assets between spouses/civil partners, maintenance and in relation to sharing pensions. The court can also be asked to make interim orders for maintenance, the sale of certain assets and injunctions to prevent dispositions of assets to defeat financial claims. When considering what financial orders to make on divorce or dissolution the court is directed to consider a number of factors with first priority being given to the welfare of any child of the family under the age of 18 being the court's first priority. After that the court must consider:

• The income, earning capacity, property and other financial resources of the parties.
• Financial needs, obligations and responsibilities.
• The standard of living enjoyed in the marriage.
• The ages of the parties and length of the marriage.
• Any significant health issues.
• Contributions to the welfare of the family.
• The conduct of the parties, although this rarely has any bearing on the outcome of the estate.
• The loss of any other benefits on divorce or dissolution or for example loss of pension rights.

The court has a wide discretion to make orders which meet the parties' needs and to try and achieve a fair outcome balancing all of those factors.

Following a landmark case White v White [2000] UKHL 54 the court must not discriminate between the roles that the parties adopt during the relationship and contributions to the welfare of the family are of equal value to financial ones. It being acknowledged that potentially long term dependence can be created by decisions made for one person in the relationship to discharge family obligations at the expense of developing employment potential, which can have long lasting implications in relation to earning capacity and pension provision. This is known as relationship generated disadvantage.

Marriage - the cons

Patriarchal origins - Some women are uncomfortable with the historical inequalities of marriage until the Married Women's Property Act 1870, as extended 1882 and 1893, women who held property of any kind were required to give up all rights to it and any income generated from it to their husbands upon marriage. Women were not able to divorce on equal terms until 1923. Marital rape only become a crime in England and Wales in 1991.

It is difficult to get out of! - There is no such thing as a quickie divorce despite what you sometimes read in the papers. Unless the divorce petition is defended, which is rare but in which case the proceedings will take much longer, the quickest a divorce can typically reach the final stage of decree absolute is 4 to 6 months. Even with the no fault divorce reform that the government has now committed to a divorce will actually longer in some instances as the proposed legislation introduces a 6 month minimum time frame.

Exposure to financial claims - Whilst the ability of the court to make wide ranging orders to meet needs and to try and achieve fairness between the parties protects the vulnerable in relationship and should achieve outcomes that are best for the family as a whole, the wide ranging nature of the court's discretion does mean that outcomes are unpredictable.

The saying "what's mine is yours" that many people colloquially refer to as being said on marriage does have it's basis in reality and because of the powers that the court has potentially all assets, whether they are in joint names or sole names, or are something which either party has an interest in, potentially all go into the "matrimonial pot" for division. This may not be what many people want or the parties themselves intend.

Arguments about pre-acquired assets, such as inherited assets or those that have been acquired by the sole effort of one party, only come in if there is enough to go round and tend to be weaker the longer the marriage or civil partnership. Unless the parties have entered into a martial agreement, either before or after marriage, which seeks to ring-fence any pre-acquired assets then there is a risk that they will fall to be distributed.

Cohabitation - the pros

Simplicity - There are no formalities required to either enter into the relationship or to end it.

In contrast to the position on marriage on where the parties are in a civil partnership the saying "what's mine is mine" is more appropriate as the court has limited powers to alter the apparent legal ownership of assets to try and achieve fairness. Financial claims can still be made, most notably claims for financial provision for the benefit of children under the Children's Act 1989 Schedule 1, but more often than not such orders provide that the assets are returned to the paying party when the children have grown up. Other claims have their basis in ancient property law and equity.

"Try before you buy" - Many put the increasing success rate of marriages since 2000 down to the fact that, in the words of the ONS, "people often live together before getting married, and this may filter weak relationships from progressing to marriage".

Cohabitation - the cons

On birth - An unmarried father does not automatically have parental responsibility for their child. The must be named on the birth certificate or enter into a parental responsibility agreement with the mother.

On death - There is no automatic right for cohabiting couples to inherit when one of them dies. Unless they own an asset as a beneficial joint tenants when the right of survivorship applies then if there was no Will making financial provision for the cohabiting partner, they would have to make a claim against the deceased's estate and challenge the family who would otherwise have been entitled.

If the cohabiting partner does inherit then they will have to pay inheritance tax for anything above the nil rate band and any residents relief.

At the present time, the cohabiting partner of a deceased person has no right to receive bereavement benefit either for themselves or for the benefit of their children which would otherwise be payable to the surviving partner in a married couple/civil partnership. This was challenged by a cohabiting "widow" called Siobhan McLaughlin resulting in a Supreme Court decision in 2018 which held that the refusal to pay bereavement benefits for the benefit of the children of a cohabiting relationship was incompatible with the European Convention on Human Rights and not justified but the Government is yet to make the necessary changes.

There is also no automatic right to receive a widow/widower's pension from any pension that the deceased cohabiting partner may have. The trustees of pension schemes will more readily consider a request to pay any such pension to a surviving cohabiting partner that was the case 10 years ago or so, however, it is a matter for their discretion and therefore you cannot guarantee that your loved one will be provided for.

On separation - It is possible for one person to walk away after a cohabiting relationship, even where there have been children, without taking any financial responsibility for their former partner.

As set out above, decisions made during the relationship, often in relation to bringing up children or elderly relatives, may mean that the economically weaker party's future financial position has been significantly compromised.

Women are disproportionately affected by this and they still tend to undertake the majority of caring responsibilities. This is relationship generated disadvantage and there is currently no remedy in England and Wales for cohabiting partners to have that rectified. The courts have tried to get creative by stretching the interpretation and implication of old property laws and equity principles to try and do what is right by cohabiting couples. However, this means that litigation in this area is unpredictable and expensive.

There is an urgent need for reform of the law that relates to cohabitants. The option to enter into a civil partnership, which many have suggested is an option for those who do not wish to marry, is not an answer for the vast majority of cohabiting couples who have not married or otherwise formalised their relationship for a whole host of reasons including the drift into cohabitation and economically intertwined relationship, refusal of one person to formalise the relationship or those who already believe they have rights from a common law marriage.

Some final thoughts from Charles Darwin

Charles Darwin wrote two letters containing his thoughts on the pros and cons of marriage in 1838 as he was considering proposing to his fiancé Emma Wedgewood. His second note set out the following:

Marry - Children - (if it Please God) - Constant companion, (&friend in old age) who will feel interested in one, - object to beloved & played with - - better than a dog anyhow - Home, & someone to take care of house - Charms of music & female chit-chat - These things good for one's health - but terrible loss of time ….

Not Marry - Freedom to go where one liked - choice of Society & little of it - Conversation of clever men at clubs - Not forced to visit relatives, & to bend in every trifle. - to have the expense & anxiety of children - perhaps quarrelling - Loss of time - cannot read in the evenings - fatness & idleness - Anxiety & responsibility - less money for books &c - if many children forced to gain one's bread - (But then it is very bad for ones health to work to much) …

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.