TRIAL MARRIAGE: COHABITATION AND THE RESURGENCE IN MARRIAGE 

Published on 25 June, 2024 | Madelaine Hailey

This time last year, marriage appeared to be in crisis.

The Office for National Statistics (ONS) had published its latest figures on the number of couples tying the knot across England and Wales in 2020.

That data showed that 85,770 ceremonies involving opposite sex and same sex couples had taken place that year – a drop of 61 per cent on the previous 12 months.

It was an historic low, with fewer marriages than at any stage since ONS’ records began, shortly after Queen Victoria took the throne.

When combined with the continued increase in cohabitation (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2023), it might have appeared to confirm a radical and definitive shift in how couples live together.

Yet those who concluded that marriage was well and truly out of favour may have spoken too soon, for the ONS has released fresh data showing a rebound of sorts (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2021and2022).

During 2022, 246,897 marriages took place. Although that figure is still less than half the number half a century earlier, it is 187 per cent higher than 2020 – which, we should remember, was the year when the Covid-19 pandemic was at its height.

Even so, the 2022 figures are higher than those recorded in 2019, so it appears that something more than marriages temporarily delayed by lockdown is responsible.

In my opinion, it is very much worth paying attention to the fact that 90 per cent of those who married in 2022 had chosen to cohabit beforehand.

Far, then, from being something of an alternative to marriage, cohabitation seems to be something of a trial marriage for many people across the country and all age groups.

It begs the question as to why people who might be in a settled relationship while unmarried would choose to wed.

I think that the answer lies in the disparity between the rights of cohabitees and spouses once their relationship ends.

In addition to not having the same automatic right of inheritance as spouses do should their partners die, cohabitees wishing to make a financial claim on partners with whom they break up encounter a process which is considerably more complicated than with marriage and requires them to resort to property law and not family law as in the case of divorce.

One of the stark differences is the fact there is no entitlement to ongoing maintenance among cohabitees, even if one partner has given up a career to raise their children.

This inequality is something which many authorities have commented on in recent years. It may perhaps become even more pronounced if ministers act on what the Law Commission recommends in relation to possible reforms of how spouses deal with financial settlements, a report which is due towards the end of this year (https://lawcom.gov.uk/project/financial-remedies-on-divorce/).

Pressure is growing for something to be done, even if the latest House of Lords’ Bill to address the issue of cohabitee rights did not proceed beyond the First Reading stage in early 2020 (https://bills.parliament.uk/bills/2639).

Two years later, the House of Commons’ Women and Equalities Committee produced a report calling on the Government to review the law on cohabitation rights

(https://publications.parliament.uk/pa/cm5803/cmselect/cmwomeq/92/summary.html)

– a position which was later rejected by ministers

(https://committees.parliament.uk/publications/31430/documents/176284/default/).

At last October’s Labour conference, the Shadow Attorney General, Emily Thornberry, announced that the sort of reforms demanded by the Women and Equalities Committee would be introduced if the party triumphed in the imminent General Election (https://www.dailymail.co.uk/news/article-12614243/Labour-plans-reform-habiting-law-women-rights-couples-split-Emily-Thornberry.html).

However, those plans were not included in the launch of the Labour manifesto in last week (https://labour.org.uk/change/my-plan-for-change/).

As I’ve been telling James Beal, the Times’ Social Affairs Editor,

(https://www.thetimes.com/article/a65ae5fe-7115-4228-bb7a-ded484363668?shareToken=713ffc1eba260209364ebceba1e0ab6e), it is fair to say that awareness of the difference in entitlement of cohabitees and spouses has been raised and that it could indeed be a factor in the decision to marry.

Even so, in my experience, there are still many individuals who believe in the myth of the common law spouse and don’t appreciate the difficulties which that poses from a financial and practical point of view until it is too late.

That in itself may provide a motivation for those people who have been part of a collapsed cohabitation to actively consider marriage in their future relationships.