Chapter 1 Outline answers to essay questions

Family relationships, marriage, civil partnership, cohabitation

Should cohabitees be entitled to the same property and other rights as married couples and civil partners? If this were so, would there subsequently be any purpose to marriage and civil partnership?

It may be useful to consider the reasons why the law protects marriage/civil partnership. For example, is it a mark of commitment? Is it about certainty? As part of this exercise, consider whether there is a difference between cohabitees and married couples/civil partners. See, for example:

  • Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307 (2007)
  • Barlow and Smithson, ‘Legal assumptions, cohabitants’ talk and the rocky road to reform’ (2010) CFLQ 328

Although civil partnerships confer virtually all the same rights as marriage, it is worth considering whether marriage and civil partnerships serve the same purpose. Consider Wilkinson and Kitzinger v Lord Chancellor [2006] EWHC 2022 (Fam) and Burden and Burden v UK [2007] 1 FCR 69. You may also want to consider Glennon’s article ‘Displacing the ‘conjugal family’ in legal policy – a progressive move?’ [2005] CFLQ 141. Further, what do you think of the Government’s decision not to extend civil partnerships to heterosexual couples (https://www.gov.uk/government/consultations/consultation-on-the-future-of-civil-partnership-in-england-and-wales)?

Discuss the differences in the legal rights of those who are married/civil partners and those who are cohabiting. The key things to mention are rights to occupy the family home under s 30 Family Law Act 1996, provisions on domestic violence, rights and obligations relating to children, maintenance obligations and rights to property on relationship breakdown and inheritance matters.

Consider the arguments for and against giving rights to cohabitants. Arguments in favour of reform include that people are unaware there are no rights attached to "common law marriage" and may rely on this to their detriment, and that the law currently protects the stronger person by putting the onus on the weaker party to do something about their situation. Lady Hale’s comments in Gow v Grant are worth considering in this context. Arguments against reform focus on the idea that giving cohabitants rights would undermine marriage, that people have the choice to marry/enter into a civil partnership and that some people deliberately choose not to formalise their relationship because they do not want to confer rights on their partner.

Conclude with your views on whether the law should be reformed and, if so, whether this would have any impact on marriage and/or civil partnerships. Stronger answers will consider the options for how the law could be reformed. See, for example,

Miles, Wasoff and Mordaunt, ‘Cohabitation: Lessons from Research North of the Border?’ [2011] CFLQ 302