Family and Children Law: Comparison of Couple Relationship Statuses

This essay provides a comprehensive overview of family and children law, focusing on the legal statuses of different couple relationships. It begins by defining marriage and exploring its legal implications, referencing key cases like Hyde v Hyde and Woodhouse and Bellinger v Bellinger. The essay then examines the rights, obligations, and legal positions of married couples, unmarried cohabiting couples, and civil partners. It highlights the legal distinctions between these relationships, including the absence of legal rights for unmarried couples compared to the legal recognition afforded to married couples and civil partners. The essay also delves into the advantages and disadvantages of each relationship type, such as tax benefits for married couples and the lack of legal complexities for unmarried couples, while also considering the social implications of each. The analysis includes relevant court cases and legislation, offering a detailed comparison of the legal frameworks governing these relationships in the UK.

Running Head: Family and Children Law 0
Family and Children Law
Student’s Name
20 November 2018

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There are numerous kinds of relationship statuses and thus the terms to define the couples.
Majorly the couples are categorized as married or unmarried, depending upon the marital status.
Before moving towards the other aspects of various marital statuses, firstly it is necessary to
understand that what exactly a marriage is. The term marriage can be stated in a number of ways.
For instance, marriage can mean an economic relationship, a natural connection, a legal tie, or a
religious mandate1. However, in order to understand the legal aspect of marriage, the statement is
given in the case of Hyde v Hyde and Woodhouse (1866) LR 1 PD 1302 is necessary to be
reviewed. It this case, marriage has been defined as the voluntary union of the lives of one man
and one woman in exclusion of all others.
Similarly, in the case of Bellinger v Bellinger [2001] 2 FLR 10483, marriage has been defined as
a contract that parties elect among themselves, but the same is regulated by the state. This is
because the status so created impacts a number of the responsibilities and entitlements. Under
English law, a marriage is regarded as a mixture/combination of a status and a contract4.
Similarly, there are civil partners, in conjunction with the married and unmarried couples. All the
above-stated kinds of couples have different legal positions, rights, and obligations. The essay
explores the meaning, rights, and obligations of all the above three stated couples. In addition to
this, the advantages and disadvantages of the same will also be discussed with the help of some
court cases.
1 Sheri Stritof, ‘What is the Definition of Marriage?’ < https://www.thespruce.com/definition-of-marriage-2303011>
accessed 16 November 2018
2 Hyde v Hyde and Woodhouse (1866) LR 1 PD 130
3 Bellinger v Bellinger [2001] 2 FLR 1048
4 Janet Halley, ‘Behind the Law of Marriage (I): From Status/Contract to the Marriage System’ <
http://www.law.harvard.edu/faculty/jhalley/cv/1-behind_the_law_of_marriage.2.15.11.pdf> accessed 20 November
2018

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The first segment of the essay discusses the married couples. The married couples are the most
accepted in terms of the societal structure and possess more number of rights in comparison to
unmarried couples and civil partners. In the UK, any person who has attained the age of 16 years
can get married with his/her parental consent. In the absence of parental consent, one is eligible
for marriage at the age of 18 years5. Marriage leads to the most legally accepted forms of a
couple relationship in the country as well as in various international laws. The reason behind the
same is the registration that follows under the law. Marriage Act 19496 governs the relevant
aspects related to marriages in the nation. A number of cases under the said law redefine and
establishes the rights and obligations of married couples. Another category of couples is that of
the unmarried cohabiting couples. Cohabiting couple can be referred to as the couple who lives
together without the existence of marriage. An example of the same is a girlfriend and boyfriend
living in a relationship, who are not civil partners7. A number of attempts have been made to
define the cohabitation. As per the definition stated in section 62 of the Family Law Act 19968,
the two individuals who are not married but living together like a husband and wife are
considered as cohabiting couple9. Unmarried couples have no legal rights and obligations
towards their partners, unlike in the case of the married couples. When it comes to the common
discussion or comparison of married and unmarried couples, the statement made by Justice
Baroness Hale in the case of Re P [2008] UKHL 3810 is an important one to note. The case was
based on the issue related to the adoption of children by married and the unmarried couples. It
5Tanveer Mann, The minimum age for marriage in the UK should rise to 18 to protect people forced into abusive
relationships, a minister has said.<https://metro.co.uk/2018/09/06/minimum-age-for-marriage-in-uk-should-be-
raised-to-18-mp-says-7919107/>accessed 16 November 2018
6 Marriage Act 1949
7 Chapman, ‘OCR A Level Sociology Student Guide 1: Socialisation, Culture and Identity with Family’ (Hachette
UK 2016)
8Family Law Act 1996
9 Herring, ‘Law Express Question and Answer: Family Law’ (Pearson UK 2014)
10Re P [2008] UKHL 38

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was held that both the married and the unmarried couples possess the equal rights to adopt the
children. In addition, the instability of a relationship cannot be determined on the basis of the
existence of marriage.
The Justice had stated that the marital status of the individuals does not give a guarantee of
success and stability of a relationship. There exist a number of unmarried relationships, which
are more stable when compared to the stability of married couples. In addition, it was stated that
the law cannot force either of the married couples or the unmarried ones to live together. Thus, it
would be right to state that the justice considered the marital status irrelevant when it came to the
stability of a relationship. However, the justice further stated that there lies a major difference
between the married and unmarried couples when it comes to the enforcement of the rights and
obligations of the parties.
When it comes to the legal positions, it is important to note that a marriage is a legal status, in
terms of the article 14 of the convention11. Similar status has not been conferred upon the
unmarried couples. According to the Para 10 of the decision of the subjective case, when the
question is the justification of the equal rights to the married couples and the unmarried couples,
the conclusion must be based upon the circumstance of each of the case and the terms of the
distinction. The financial rights to be possessed by the couples also depend on their
circumstances.
Married couples do have a legal recognition as evident from the possession of a valid proof of
marriage. Following documents can be considered as a valid proof of marriage.
 A marriage certificate issued by the country where the marriage took place
11 ohrh.law.ox.ac.uk, ‘Article 14 ECHR: the Elusive Other Status’ < http://ohrh.law.ox.ac.uk/article-14-echr-the-
elusive-other-status/> accessed 16 November 2018

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 A certified true copy of an entry in the UK register of marriages.
The relationship of an unmarried couple is considered as a marriage under the common law and
is known as the common law marriage. However, the common law marriages are not actual
marriages. The fact that the unmarried couples have moved in together, does not provide them
with the rights similar to the married couples. These kinds of marriages are not regarded as legal
in the UK. This means that the unmarried couples do not have any legal rights by the virtue of
living in together. Thus, it does not matter how long two people have been living together as a
couple, unless they are legally married in terms of the law. To conclude it can be stated that the
common law confers the term “common law spouses”, to the couple who lives together but the
said relationship does not have a legal recognition.
In conjunction with the spouses and married couples, there is yet another term called the civil
partners. The individuals who enter into a civil partnership with their respective partners are
known as the civil partners. It is a relationship involving heterosexual couples and the same is
regarded as legal in a number of countries around the globe. In the UK, a person can enter into a
civil partnership if such a person has attained the age of 16 years12. In such a manner, same-sex
couple marriage is valid in the UK. Civil Partnership Act 2004 regulates the above stated
partnerships13. Section 1 (1) of the act defines the civil partnership to be a relation between two
people belonging to the same sex. It is important to note that in order to form a civil partnership,
the parties are required to have certain documents. These are the proofs of addresses, name, age,
nationality and so on. A civil partnership comes into existence when both the parties sign the
civil partnership document. Such a document must be signed in the presence of each other, the
civil partnership registrar and the two witnesses.
12 Clayton and Sawyer, ‘Textbook on Immigration and Asylum Law’ (Oxford University Press 2014)
13Civil Partnership Act 2004

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Section 1(1) of the Marriage (Same Sex Couples) Act 201314 states the lawfulness of the same-
sex couple marriage in the UK. It is significant to note that such couples have the rights similar
to that of a married couple. In order to make a comparative study of the legal statuses of spouses,
unmarried couples and the civil partners, it must be noted that the married couples do have legal
rights towards their partners and their status is identified to be legal under the law. Similarly, the
civil partners also have legal rights like a married couple. Although the same is frequently
challenged in light of the various issues. Lastly, in contrast, the unmarried couples do not have
any legal rights with respect to their partners, as the law does not recognize their status, as was
stated in the earlier parts of the essay as well.
After the discussion and comparison of the legal statuses of all the relationships, the advantages
and disadvantages of the same are a significant matter of the study. The motive behind the study
of these pros and cons is to develop a further understanding of the similarities and the differences
of the legal status of these relations. Among many of the advantages, the prime advantage as
possessed by the married couples to be in such a relation is the gain of the acceptability, both in
terms of the legal as well as social perspective. Thus, the married couples can transfer his/her
income to the respective partner within the legal framework and thereby engage in tax planning.
The married couples of UK can enter into such an arrangement and make benefits out of the
same. In addition to this, gift rules as stated in the law do not apply to such couples.15Another
benefit of getting married is saving of capital gain tax16. A similar benefit is extended in the
capital gain tax as well and the same can be procured by the transfer of the assets to the partners
14Marriage (Same Sex couples) Act 2013
15Moneywise.co.uk, ‘The financial pros and cons of marriage’
<https://www.moneywise.co.uk/news/2018-02-14/the-financial-pros-and-cons-marriage>accessed on 19 November
2018
16Telegraph.co.uk, ‘Why getting married leaves you better
off’<https://www.telegraph.co.uk/finance/personalfinance/money-saving-tips/10162608/Why-getting-married-
leaves-you-better-off.html>accessed on 19 November 2018

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in the manner specified under the law. Further to add, the inheritance of pension is another chief
advantage that a woman can exercise only when she is legally married. The same can be
exercised in the event of the divorce against her husband. In addition to the advantages, there
exists some disadvantages as well for this kind of relationship. The biggest disadvantage of
marriage, which the individuals face is the manner of dealings with the family members of
partner17, which leads to a number of social problems. As the marriage is the most stable and
legally developed form of relationship, dissolution of the same is a complex process for each of
the parties involved. Such a dissolution of marriage is marked with the fulfilment of a number of
legal formalities and the responsibilities, on part of both the parties.
Moving towards unmarried cohabiting couples, the most significant benefit is that there are no
legal compliances. There is an absence of complex and legal procedures, at the time of
dissolution and separation. In addition, there is no necessity to collect and submit a number of
documents. Sometimes, such kind of relationship proves to be more stable than a married
relationship as was recognized in the case of Re P. In terms of the disadvantages, such couples
do not have any legal rights with respect to the joint assets and there is an absence of the
financial protection. This category of couples have certain advantages such as the allowance of
saving of taxes, but the other rights that are available in marriage relationships are missing. As
the Civil Partnership begins with the provisions of the law, the same can be ended according to
the provisions only, and not just by the will of the parties. At the time of the dissolution of such
kind of partnership, the matters related to finance and children are taken care of in the provisions
of the law in an effective manner18. Such couples have the legal rights with respect to their
17 Standard.co.uk, ‘State of the union - the pros and cons of marriage’ < https://www.standard.co.uk/lifestyle/state-
of-the-union-the-pros-and-cons-of-marriage-6733229.html> accessed on 20 November 2018
18Co-oplegalservices.co.uk, ‘Is a Civil Partnership Better than Cohabiting?’ <https://www.co-
oplegalservices.co.uk/media-centre/articles-may-aug-2018/is-a-civil-partnership-better-than-cohabiting/> accessed

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partners including the right of inheritance. However, like any another relationship status, there
are some disadvantages of this relationship as well. In the cases of assisted reproductive services,
a woman does not have the rights similar to that of a married woman. Further, a civil relationship
is not eligible for the furtherance of a religious service. To form such kind of partnership,
couples have to do certain legal formalities which is absent in the case of unmarried cohabiting
relationships.
To make the comparison of these three kinds of relationship status, some aspects and areas are
needed to be reviewed, which is done as follows-
Children: - A man will only acquire the parental responsibility of a child if he is married to the
mother of such a child.
Contract: - Civil partners and married partners cannot enter into a contract, which consists of
the arrangements of their property at the time of the dissolution of a relationship, but unmarried
couples can do so. The reason behind the same is that there are legations already for married and
civil partners. However, by developing a cohabitation agreement, unmarried couples can define
their rights and obligation for better understanding19.
Fatal Accident Act 197620:- According to the provisions of this act, a civil partner, or spouse of
a deceased person can ask for the damages under the prescribed circumstances. However, the
unmarried partners of the deceased can only do so in the event of living together with the
deceased person for a minimum period of 2 years immediately before the incident of death.
on 19 November 2018
19 Theguardian.com, ‘Why a cohabitation agreement is essential for non-married couples; <
https://www.theguardian.com/money/2013/mar/09/cohabitation-agreement-essential-non-married-couples> accessed
on 19 November 2018
20 Fatal Accident Act 1976

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Matrimonial Properties: -Married couples, as well as civil partners, are entitled to occupy the
matrimonial house, but such right is not available to cohabitants.
Succession: - A civil partner or a married partner of the deceased automatically gets the right of
inheritance in respect to the property of the deceased person, but the same is not available to the
unmarried partner of the deceased21.
Dissolution:- Unmarried couples can get separate with each other by simply moving to another
house, whereas for married and civil partners it is necessary to complete the requirements of law.
Married couples have to comply with the provisions of Matrimonial Causes Act 1973.
With the help of the study of the above points, it can be clearly stated that the civil and married
partners possess almost the same rights but such rights are not available to unmarried couples.
To conclude the topic as discussed in the previous parts, it can be stated that there are mainly
three kinds of relationship statuses. The essay was worked around the various aspects of all these
three relationships. Every status has it is own advantages and disadvantages. Where on one side
marriages and civil partnerships are a legal form of togetherness, the same is not there in cases of
unmarried couples. Many of the acts such as the Family Law Act 198622, Family Law Act 1996,
Marriage Act 1949, Matrimonial Causes Act 1973, Forced Marriage (Civil Protection) Act
200723 Civil Partnership Act 2004, and the Marriage (Same Sex Couples) Act 2013 govern the
relationships of married as well as civil partners, but there is no such specific legislation for the
unmarried couples. It can be concluded that the position of married and civil couples is a legal
21 Citizensinformation.ie, ‘Marital status and inheritance’ <
http://www.citizensinformation.ie/en/birth_family_relationships/married_couples/
marital_status_and_inheritance.html> accessed on 19 November 2018
22 Family Law Act 1986
23 Forced Marriage (Civil Protection) Act 2007

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one, and they have certain specific rights with respect to their partners. Common Law marriages
do not grant any kind of right and responsibilities and therefore it is beneficial and advisable for
the couples to get married in order to legalize the relationship.

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Bibliography
Legislations
Civil Partnership Act 2004
Family Law Act 1986
Family Law Act 1996
Fatal Accident Act 1976
Forced Marriage (Civil Protection) Act 2007
Marriage (Same Sex Couples) Act 2013
Marriage Act 1949
Cases
Bellinger v Bellinger [2001] 2 FLR 1048
Hyde v Hyde and Woodhouse (1866) LR 1 PD 130
Re P [2008] UKHL 38
Books/Journals
Gina Clayton and Caroline Sawyer, ‘Textbook on Immigration and Asylum Law’ (Oxford
University Press 2014)
Jonathan Herring, ‘Law Express Question and Answer: Family Law’ (Pearson UK 2014)

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11
Steve Chapman, ‘OCR A Level Sociology Student Guide 1: Socialisation, Culture and Identity
with Family’ (Hachette UK 2016)
Other Resources
Citizensinformation.ie, ‘Marital status and inheritance’ <
http://www.citizensinformation.ie/en/birth_family_relationships/married_couples/
marital_status_and_inheritance.html> accessed on 19 November 2018
Co-oplegalservices.co.uk, ‘Is a Civil Partnership Better than Cohabiting?’ <https://www.co-
oplegalservices.co.uk/media-centre/articles-may-aug-2018/is-a-civil-partnership-better-than-
cohabiting/> accessed on 19 November 2018
Janet Halley, ‘Behind the Law of Marriage (I): From Status/Contract to the Marriage System’ <
http://www.law.harvard.edu/faculty/jhalley/cv/1-behind_the_law_of_marriage.2.15.11.pdf>
accessed 20 November 2018
Moneywise.co.uk, ‘The financial pros and cons of marriage’
<https://www.moneywise.co.uk/news/2018-02-14/the-financial-pros-and-cons-
marriage>accessed on 19 November 2018
ohrh.law.ox.ac.uk, ‘Article 14 ECHR: the Elusive Other Status’ <
http://ohrh.law.ox.ac.uk/article-14-echr-the-elusive-other-status/> accessed 16 November 2018
Sheri Stritof, ‘What is the Definition of Marriage?’ < https://www.thespruce.com/definition-of-
marriage-2303011> accessed 16 November 2018

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standard.co.uk, ‘State of the union - the pros and cons of marriage’ <
https://www.standard.co.uk/lifestyle/state-of-the-union-the-pros-and-cons-of-marriage-
6733229.html> accessed on 20 November 2018
Tanveer Mann, The minimum age for marriage in the UK should rise to 18 to protect people
forced into abusive relationships, a minister has said.<https://metro.co.uk/2018/09/06/minimum-
age-for-marriage-in-uk-should-be-raised-to-18-mp-says-7919107/>accessed 16 November 2018
Telegraph.co.uk, ‘Why getting married leaves you better
off’<https://www.telegraph.co.uk/finance/personalfinance/money-saving-tips/10162608/Why-
getting-married-leaves-you-better-off.html>accessed on 19 November 2018
Theguardian.com, ‘Why a cohabitation agreement is essential for non-married couples; <
https://www.theguardian.com/money/2013/mar/09/cohabitation-agreement-essential-non-
married-couples> accessed on 19 November 2018