Valentine’s Day may not be the best day to remember that relationships don’t always work out. All the same, couples celebrating the lovers’ anniversary with a candlelit dinner will not necessarily live happily ever after. Less and less often will they even get married. But the law has not kept up. For many couples it can seem stuck in, say, 1962.
Family law has often been a last redoubt of conservative values. It took more than a hundred years, in England and Wales, for women to graduate from getting rights over property (1870) to finally winning rights over their bodies with the outlawing of rape in marriage in 1992. Likewise, attitudes to sexuality are etched in law. But the speed of change that led from the Civil Partnership Act 2004 to same-sex marriage in 2014 has produced another legal anomaly. Straight couples cannot form civil partnerships. For their relationship to be recognised in law, it is marriage or nothing.
The government’s equalities office says there is no disadvantage here, though that is not what couples like Rebecca Steinfeld and Charles Keidan feel. They will be in the appeal court later this month arguing for their right to a civil partnership. In the Commons a Conservative backbencher, Tim Loughton, has just failed for the third time to amend the 2004 act so that it applies equally to straight couples.
The Guardian is sympathetic to their cause. Same-sex and straight couples should be entitled to the same treatment. But it is not the biggest source of unfairness and discrimination when relationships break down. The real crisis, as the Law Commission recognised 10 years ago, is where a couple have been living together without marrying. Many people think the courts recognise a common law wife or husband. They don’t.
Last week, the supreme court ruled that a woman could receive her late partner’s pension despite not being married. Scottish law recognises that cohabiting couples have some financial rights, though less than married couples, after a period of living together. That means that individual contributions to the relationship are recognised and calculated in a standard and relatively straightforward way. In Australia, the land of the “de facto” spouse, courts treat gay or straight couples who have lived together for more than a year or had a child in a similar way to those who are married.
The number of people in the UK living as couples who are married or in civil partnerships is stable at just under 13 million. The number of couples cohabiting doubled from 1.5 million in 1996, to 3.3 million. Last year, more than a quarter of babies were born to unmarried parents.
It is not only absurd that the law has failed to keep pace with such a dramatic change in lifestyle; it often discriminates against women. The church, most of the Tory party and the Daily Mail often argue that the law must send a signal about the importance of marriage. Instead, the signal the law is sending is that it is not interested in protecting every group in society. The world has moved on. Legal rights for cohabitees are now essential.
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