Marriage is outdated; cohabiting lacks rights. We need a radical, modern alternative, say Sarah Beresford and Caroline Falkus
Marriage as a way of regulating intimate relationships has had its day. It has been so tarnished by its past that it needs to be abolished. Historically, wives have been chattels owned by their husbands. William Blackstone, the 18th-century jurist, stated: "The very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband." His near-contemporary, Mary Wollstonecraft, observed: "Women must marry advantageously and to this object their time is sacrificed and their persons often legally prostituted in marriage." It was not until 1991 that the British courts acknowledged that a husband no longer had the right to rape his wife.
So, there are good reasons for women to dislike marriage. But men should also object to the legal institution. To paraphrase Karl Marx, "while women are in chains, men can never be free".
Not only is marriage historically flawed, it is also increasingly considered "unfit for purpose". This is reflected in its growing unpopularity. In 2005, the number of marriages in England and Wales fell to its lowest since 1896.
Some couples are put off by the fuss and expense, with the latest figures showing that the average cost of a traditional wedding is £17,000. Other people, when asked why they are not married to their long-term partner, reply that they do not want the state interfering by regulating their private lives. It is no one else's business. With few couples today experiencing social pressure to marry, the common alternative is cohabitation.
But there are significant legal distinctions between married and unmarried couples, differences of which many are simply unaware.
As law lecturers and solicitors practising family law can confirm, cohabitees often hold an almost unshakeable belief that eventually the state will treat them as "common law spouses". This misunderstanding is reinforced by benefit, pension and tax forms that carry a box to tick marked "partners". However, it is certainly not the case when courts deal with the division or ownership of property.
It is often only on the point of separation, illness or death that it becomes apparent that marital status is not a purely private matter. At such key moments, when we ask for the rights we believe arise from relationships to be recognised and enforced, the legal system fails many of us.
We are allowed to elect to be unregulated (cohabiting), regulated (married) or, for same-sex couples, civil partners. But our inadequate court system leaves a dreadful mess when called on to adjudicate on separation or death for cohabitees. They simply do not have the same rights.
The Law Society has wrestled with this problem and has recommended that cohabiting couples should get rights after the arbitrarily fixed point of two years of cohabitation. This seems to be a pasted-together response that begs more questions than it answers. Does it change if you have children together? Should it change if you both intended to keep the law out of your relationship throughout its course?
In fact, the answer has been in front of us ever since the creation of the concept of civil partnerships. The Civil Partnership Act 2004 was designed to allow same-sex couples a virtually identical but lesser version of marriage. Let's use it.
Let's do away with the tired old prejudices with which marriage is imbued; let's cut out the Church's power to "tie the knot". We live in the diverse culture of Britain in 2007. All couples who want their relationship recognised by the state in the event of separation or death should be offered the opportunity to enter into civil partnerships.
Given that there is really no such thing as privacy when it comes to relationships, ordering our private lives through civil partnership is attractive, as it does not carry the same historical and social disadvantages as marriage.
It is routinely asserted by political leaders such as David Cameron and Tony Blair that the institution of marriage must be protected to ensure a stable society, well-adjusted children and a reduction in the number who grow up below the poverty line. Cameron asserted in February: "I believe in marriage. I believe in people making a commitment to each other and staying together and trying to bring up their children properly." Such sentiments assume that this is the only possible framework for addressing social problems. Advocates of the institution of marriage need to move into the 21st century and admit that there is a better way to create those structures.
It is time, therefore, to detach marriage from our legal system so that we can have a more effective and clear means of allowing us to regulate our lives.
Sarah Beresford is a lecturer in family law and director of studies at Lancaster University. Caroline Falkus is a partner at Bross Bennett LLP family law solicitors.