Introduction

At the beginning of the twentieth century there were certainly unmarried couples—no doubt a significant number—who lived together in a factual relationship impossible to distinguish from matrimony.¹ In many cases, as we have seen, they may have been driven to do so because the earlier marriage of one or both partners could not be dissolved.² In others they may have had an ideological preference for legal independence.³ But whatever the couple’s motivation no one suggested that by living together the couple acquired the status of husband and wife or any of the rights which flowed from that status.⁴ They could, of course, make their own private arrangements: the man might (and at certain levels of society often did)⁵ enter into an enforceable⁶ deed of covenant to make (p.517) periodical payments to the other; inter vivos (ie lifetime) settlements of capital could be made,⁷ as could wills;⁸ whilst arrangements for children could be dealt with by the appointment of guardians.⁹ But on the whole (and with one conspicuous exception) for much of the century family law was able simply to ignore the family outside marriage. (The conspicuous exception was the law of bastardy, under which a man could be ordered to provide a measure of financial support for the children of a relationship outside marriage; and this topic—the subject of substantial textbooks in the nineteenth and early twentieth centuries—is dealt with in Part IV of this work.)

Generally speaking, statisticians and demographers seem also to have given little attention to the existence of non-marital relationships, and there is little accessible information about the extent of the phenomenon of stable extramarital relationships at the beginning of the twentieth century.¹⁰ And if cases about the legal consequences of a relationship outside marriage came before the courts they gave no sign of wishing to erode the distinction between legal marriage and unmarried cohabitation: half way through the century the then Master of the Rolls¹¹justified a decision denying a man any claim to succeed to his mistress’s tenancy by asserting that it would be no bad thing to demonstrate that ‘in the Christian society in which we live … the privileges which may be derived from marriage [are] not equally enjoyed by those living together as man and wife but who are not married’

At the end of the twentieth century, things are very different. First, far more is known about the numbers of people living together outside marriage.¹² Since 1979 the official General Household Survey has routinely collected information (p.518) about cohabitation; and it seems that by 1989 more than 10% of all men aged 25 to 34 and more than 12% of women aged 20 to 24 were cohabiting.¹³ The proportion of men and women living together outside marriage grew rapidly in the last quarter of the century: the proportion of women of child-bearing age¹⁴ not currently married who are cohabiting has more than trebled, from 9% in 1976 to 29% in 1998.¹⁵

For some time, the conventional view was that cohabitation was often a prelude to marriage, and that marriage was simply deferred whilst the couple assessed their compatibility. Statistics provided support for this view. Whereas in the mid-1960s only 5% of couples marrying had cohabited before doing so, by the mid-1990s the figure had risen to 70%. More than a fifth of couples who do marry give the same address when completing the registration particulars. But it now seems to be accepted that (leaving ‘trial marriages’ on one side) there has been a substantial increase in long-term cohabitation by couples who have no intention of marrying and never do so; and that the increase in cohabitation has taken place at the expense of the numbers marrying.¹⁶

Many unmarried couples have children together. More than a third of all live births in England and Wales are to unmarried parents, and in many of these cases the parents are in a cohabiting relationship of some stability: in 1996 nearly 60% of all extra-marital births were to parents living at the same address; and in nearly 80% of such cases the birth was registered jointly by both parents.

The pre-eminence of marriage for those first entering into a relationship seems to have disappeared within an interval of just over three decades. Cohabitation has been transformed from being statistically insignificant to a familiar and routine way of life chosen by three in every ñve couples for their first union.¹⁷ The statement made by the Graham Hall Committee on Statutory Maintenance Limits¹⁸ that it would be ‘hard to envisage a society with a greater enthusiasm for marriage’ coincided with the start of a steady and continuous decline, with marriage rates falling by three or four per cent each year;¹⁹ and the predictions confidently made by official bodies in the 1960s that liberalising divorce would dramatically reduce the number of children born outside marriage have been dramatically falsified.

By the end of the century, these developments had been judicially acknowledged at the highest level;²⁰ and judicial attitudes seem to have reflected a (p.519) perception which would have seemed unthinkable in mid-century.²¹ For example, in 1998 one Lord Justice of Appeal noted²² that, as non-marital cohabitation became more open

’so attitudes towards it became less judgmental. That included the attitude of the courts, where notwithstanding that the encouragement of marriage as an institution remains a well-established head of public policy, the respect due to the sincerity of commitment involved in many such relationships is reflected in judicial terminology—terms like ‘partner’ now being more generally used than the once-preferred references to ‘common-law spouse’, ‘mistress’ or even … ‘living in sin’

Changing attitudes²³

Although the change in approach was particularly dramatic in the 30 years following the 1969 divorce reforms (which have been judicially said to have made divorce available on demand thereby transforming marriage into a ‘state into which and from which people choose to enter and exit’)²⁴ it seems that it was the First World War which prompted some recognition of the hardship and injustice which might be caused by a rigid denial of any recognition of the claims of the unmarried couple to equality of treatment with the married. Men who responded to the call to serve their country were paid as little as seven shillings weekly (35 pence—around £10 in year 2000 values) at a time when the average industrial wage was perhaps six or seven times as much.²⁵ In those circumstances, it made little real sense for the soldier’s wife to talk of enforcing her common law right to be maintained; but a system of separation allowances provided some support, and (subject to quite severe restrictions) it was decided that unmarried women who were being maintained by the soldier should be equally eligible for these allowances. In due course, provision was also made for the payment of pensions if the soldier were killed.²⁶

But this somewhat grudging recognition of the needs of the soldier’s family did not herald any general breakdown of the principle that rights and duties attached to the status of marriage, and that factualrelationships were not to be equated with legal marriage. Indeed, although it is true that in 1921 the Unemployed Workers’ Dependants (Temporary Provisions) Act allowed the (p.520) single insured unemployed worker an extra payment of Si– in respect of a ‘female person’ dependent on him and living with him as his wife, the outraged reaction to a backbench MP’s suggestion that ‘only the parson’s fee’ distinguished the married from the unmarried²⁷ made it clear that traditional values were still strongly held. In 1927 the Conservative Government’s Unemployment Insurance Act removed the ‘unmarried wife’ from the list of those dependants whom the legislation recognised:²⁸ the extension of benefit had (in the words of the Blanesburgh Committee on Unemployment Insurance)²⁹‘been a cause of serious misgivings to many people and is … injurious to the credit of the system’ Thereafter, for almost half a century,‘living together as husband and wife’ was only equated with legal marriage when to do so would reduce entitlement to state benefits³⁰ and it was only in the 1960s and 1970s that this principle³¹ began to be contested.

The approach to reform: hesitancy and uncertainty

In one respect, the unmarried should have suffered no disadvantage as compared with the married. This was, paradoxically, because of the legal regime of separation of property established for married couples by the Married Women’s Property Act 1882. It followed (so the House of Lords held in a series of cases in the 1970s)³²that any dispute about entitlement to property between husband and wife had to be determined ‘on the general principles of law applicable to the settlement of claims between those not so related, whilst making full allowances in view of that relationship’³³ Husband and wife disputes about the ownership of the family home—and virtually all the cases coming before the courts were (p.521) about the home or other land—should therefore be decided by ordinary principles of property law. In principle, the question was:‘who owned the legal estate in the house?’ and that could easily be answered because the law stipulated certain formalities for the creation and transfer of land and interests in land. The recorded legal ownership of the land only failed to provide the definitive answer if someone other than the legal owner could claim an interest under the equitable doctrines of implied resulting or constructive trusts. When could such a claim be successfully advanced? According to the House of Lords only when the ‘full allowances’ made for a couple’s relationship indicated (for example) that they had intended to share the ownership. How would the court determine this? In principle by examining the content of the couple’s relationship, not their legal status; and therefore the existence (or lack) of ‘paperwork’should make no difference to the outcome, Two couples who had had a similar relationship should find that they had comparable property rights, irrespective of the fact that one couple was, and the other was not, legally married.

In practice, things did not quite work out in that way. The courts seemed much less reluctant to infer that a married couple must have intended to share ownership (as well as use) of their home than was the case with an unmarried couple. In Burns v. Burns,³⁴ for example, a couple lived together for 19 years and had two children. The mother gave up her job to look after the home and the family and she formally changed her name to ‘Mrs Burns’ The court denied her any share in the proceeds of sale of the house. Similarly, in Layton v. Martin,³⁵ a woman had lived with a man for five years (and been his lover for much longer). As the judge put it, the ‘services she was expected to supply were, to all intents and purposes, those of a wife’ The man had offered to give her emotional security during his life and financial security on his death; and she had agreed to live with him on that basis. But—in a claim against her lover’s executors—she got nothing. The judge held that the man’s promise was not intended to create a legally binding contract.

It is true that decisions about property disputes between the married could also produce what seemed to be harsh results; but by the 1970s this was comparatively unimportant in practice. This was because the courts had, in the wake of the 1969 divorce reforms, been given wide statutory discretionary powers on divorce or after death to redistribute the couple’s property.³⁶ A judge explained the effect when giving judgment in the case of an unmarried couple with assets of half a million pounds who lived together for 11 years and had two children.³⁷Had they been married

‘the issue of ownership would scarcely have been relevant because the law these days, when dealing with the financial consequences of divorce, adopts a forward-looking perspective in which questions of ownership yield to the higher demands of relating the means of both to the needs of each, the first consideration given to the welfare of children.

(p.522)