THE GREAT LEAP FORWARDS: CHANGE AND TRADITION IN RELATIONSHIPS 

Published on 29 February, 2024 | Rachael Brownlee

Today is February the 29th.

As a quirk of the calendar, it has become the subject of a number of traditions, one being that it provides a day on which women can propose to men, rather than the other way around.

It is said to have originate in fifth-century Ireland, when St Brigid struck a deal with St Patrick enabling women to take the initiative once every four years after her complaint that men took too long to suggest marriage.

For much of the centuries since, marriage has been the only legal option available to couples looking to spend the rest of their lives together.

However, individuals considering marriage nowadays face very different circumstances.

Figures published by the Office for National Statistics (ONS) show that the number of marriages in England and Wales has almost halved since a record 426,241 ceremonies were conducted in 1972 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2020).

That decline has been mirrored by a similarly steep reduction in the number of divorces – down from 165,018 in 1993 to 80,057 in 2022 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2022).

Both contrast with a continued increase in cohabitation. Whilst living together in an unmarried couple used to carry considerable social stigma, in 2021, cohabitees made up one-quarter of all adult couples (https://www.ons.gov.uk/peoplepopulationandcommunity/householdcharacteristics/homeinternetandsocialmediausage/articles/livingarrangementsofpeopleinenglandandwales/census2021#living-arrangements-of-couples).

There are consequences to such shift. In the event of their relationships not lasting the course, cohabiting couples do not have the same rights to make a financial claim on each other under family law as their married counterparts.

Instead, if the ownership of their home is in dispute, they must resort to property law – the Trusts of Land and Appointment of Trustees Act (ToLATA) 1996 (https://www.legislation.gov.uk/ukpga/1996/47/contents) – in an effort to resolve any disagreement.

It is an indication of the rise in cohabitation that we have seen a steady increase in disputes under ToLATA, as well as more people taking advantage of cohabitation agreements to provide the kind of clarity which might help them avoid the need for litigation if they break up.

There is, of course, an alternative.

Civil partnerships were introduced in 2005, allowing same-sex couples to formalise their relationships. They were initially popular (there were 14,943 civil partnerships in the first full years of their availability), they have declined in frequency since a law was passed in 2013 allowing same-sex marriage (https://www.legislation.gov.uk/ukpga/2013/30/contents/enacted/data.htm).

Nevertheless, civil partnerships have been sought after by opposite sex couples regarding marriage as too traditional.

After a landmark Supreme Court ruling in 2018 declared that restricting civil partnerships only to same-sex couples was discriminatory (https://www.supremecourt.uk/cases/docs/uksc-2017-0060-judgment.pdf), the first opposite-sex ceremonies took place in December 2019.

The ONS has now revealed that of the 6,879 civil partnerships formed in England and Wales in 2022, more than 80 per cent involved opposite sex couples (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/civilpartnershipsinenglandandwales/2022#age-of-civil-partners).

As with so much information, the headline numbers don’t necessarily tell the whole story.

Just under half of all opposite sex civil partnerships (49.3 per cent) were formed by men and women over the age of 55, compared to 39 per cent of same-sex civil partnerships.

That detail underlines once more how men and women of pension age are playing an ever greater role in the make-up of the nation’s households.

Just over 15 per cent of all opposite-sex marriages in 2020 involved men aged 55 – an increase of six per cent in five years – compared to a 12 per cent drop in marriages among men in their thirties over the same period.

Furthermore, 30 per cent of opposite sex civil partnerships involved individuals who had previously either been divorced or in another civil partnership.

Given that the rights of spouses and civil partners are the same, it begs the question why people wanting to formalise their relationships opt for civil partner status rather than that of spouse.

I believe that comes down to a combination of principle and preference.

Some may simply object to the prospect of being tied to the historic connotations of marriage after a divorce.

Even so, people are still well aware of the perils of intestacy and wish to avail themselves of the financial security which civil partnership offers but in a way which works for them.

They know that it is a commitment which has a legal weight not attached to cohabitation, at least for the time being. At its last annual conference, the Labour Party pledged to bring in legislation addressing that shortfall (https://www.dailymail.co.uk/news/article-12614243/Labour-plans-reform-habiting-law-women-rights-couples-split-Emily-Thornberry.html).

As many of my clients make clear, what is important is being able to enter into the kind of relationship which works best for them.

It must be said, though, no-one at any stage of life and regardless of motivation can predict whether their relationships will last the course.

Therefore, it makes perfect sense to regulate them with pre- or post-nups, cohabitation or civil partnership agreements.

Without those documents, embarking on a live-in relationship could be considered a leap of faith, on this day or any other.