Marriage under attack again

These could include rights to claim maintenance, lump sums and a share of property and pensions. Homosexual couples who have not gone through a civil partnership ceremony would enjoy the same rights as unmarried heterosexual partners.

As the proposals were made public, the Commission was criticised for undermining the unique status of marriage and for encouraging more couples to cohabit. But ministers say they are concerned over the current lack of legal safeguards for the four million people living together outside marriage and their children.

Surveys have shown that most couples are unaware of their lack of rights. The surveys also conclude that many believe, wrongly, that women in unmarried relationships are common law wives, with rights equivalent to those of divorcees. The proposals, which are now at the consultation stage, have been drawn up by the Commission at the request of the government.

The consultation document, which is 370 pages long, suggests that cohabitees who split up should have the right to make financial claims similar to those of married couples but on a less generous basis. It also suggests that the right should apply to those who have lived together for a certain period, perhaps about two years, or to those who have a child.

According to the Commission, the aim of the proposals is to redress any financial disadvantage suffered by one partner through the relationship — by giving up a job to look after children, for example — or any advantage that had accrued to the other partner. The intention is to provide a safety net for those who have very few rights as the law stands.

At present, a cohabiting woman can claim maintenance for the couple’s children but not for herself. She may claim a share of property held in her partner’s name but would have to use complicated and outdated trust laws, making litigation prohibitively expensive for many. An unmarried partner also has no automatic right to inherit if the other partner dies without a will.

Campaigners for better rights for cohabitees are delighted that the Law Commission has recognised ‘the need for legal protection and fairness’ for unmarried couples. They say the Commission’s proposals will provide a safety net so that one partner is not left destitute after a long-term relationship comes to an end. They also make the point that many cohabiting couples do not realise that, legally, there is no such thing as a co mmon law marriage. But the proposals were condemned as a lawyer’s dream by critics who say it would destroy marriage. Eleanor Laing, speaking for the opposition Conservative party, said: “Of course, people who cohabit for a significant length of time have some rights over mutually-acquired assets. But there ought to remain a distinction between cohabitation and marriage.”

Jill Kirby, of the Centre for Policy Studies, a centre-right think-tank, said: “The effect of these laws would be to do away with marriage. If it were left to these lawyers, there would be no more marriage. It will provide them with masses of work. But it does nothing to protect the interests of the rest of us in ensuring that marriage and family stability are protected.”

Law Commission chiefs have said that, under their proposals, the cohabitation law would be unlike divorce law because it would take no account of the needs of partners nor of the right to an equal share in the partnership. But they admitted that in many cases, the practical outcome of a break-up would be the same as in divorce.

The Commission cited, as an example of what it is proposing, the fictitious case of a woman left on her own with two children, after living with the father for 15 years. It said the result may not be very different whether the woman was married or cohabiting.

The Commission’s proposals have come at a time when couples are being advised to sign prenuptial agreements before getting married.

This follows a landmark ruling that gives wives much bigger divorce settlements. Family lawyers say that wealthy young men would be better off not marrying at all, after the country’s highest court ruled that a wife may be entitled to half the assets created during even a short marriage.

In the most important judgement on divorce for more than 20 years, the law lords ruled that women who sacrificed careers to bring up children and look after the home should be compensated and may claim a share of their husband’s future income. Ruling on two test cases, they said that Melissa Miller, 36, could keep the five million pounds she was awarded from the 17 million pound fortune of her husband and that Julia McFarlane, 46, was entitled to 250,000 pounds a year from her husband as long as she needed it.

Emma Hatley, a partner at the law firm which advised Mrs Miller, said: “The ruling will serve as a deterrent to marriage but prenuptial agreements will provide a good degree of protection. I predict it will not be long before they are made binding.”

Jeremy Levison, Mr McFarlane’s lawyer, said: “A settlement like this will have the effect of discouraging successful guys from getting married at all.”

Handing down the rulings, the law lords said that even in a short marriage, a wife might be entitled to a 50-50 split of the wealth created during the marriage. They also laid down new guidelines on how to split the assets and they finally rejected any notion that adultery should be a factor in determining a financial settlement.

Despite Emma Hatley’s prediction, the fact is that prenuptial agreements are not legally enforceable at present. It would seem, therefore, that with that being the case, and with the Law Commission’s proposals, young men, especially those with substantial assets of their own, would be finding it more and more difficult to decide whether to marry or cohabit.