Marriage rights for all

The marriage rate in this country is at a 100 year low. Yet, the number of family breakdowns continues to rise. The reason appears to be clear - those who choose not to marry face a far higher risk that their relationship will not last. Although those who live together but aren't married account for only 19 per cent of couples, they represent 48 per cent of all break-ups. The annual cost to this country's economy has recently been estimated at £64bn each year; more than the annual defense budget.

Perhaps this was in the mind of High Court Family Judge, Sir Nicholas Mostyn, who, at an annual conference of family lawyers, advocated that there should be just one legal framework for resolving financial issues when relationships end, and it shouldn't make any difference whether the couple were married or not, heterosexual or homosexual.

He said: "I bridle at the implication that in some way a marriage is a better form of relationship than a non-marital one. It is not the role of the state to go round telling people how they should form their relationships. Surely, in terms of social engineering, assuming that is a proper role for the state at all, the emphasis should be not so much on the form of relationship but on support for families."

In his view, the way the law deals with financial issues on divorce should be extended to how the law deals with those same issues if the couple aren't married. Namely, how the law deals with disputes about children when relationships fail. He commented that a similar reform had been introduced in New Zealand, and "no-one there suggested the sky has fallen and civilization has come to an end."

Those who find their relationship breaking down have to rely upon the law of trusts, developed for entirely different purposes in different times. Judges have tried adapting an outdated and out of touch doctrine to find some degree of fairness and justice. In doing so, they risk creating more uncertainty and this unreformed area of the law can be harsh and unfair.

As long ago as 2006, another High Court judge described what unmarried couples face as "like a witches brew into which various ideas have been stirred over the years, and in which different ideas bubble to the surface at different times."

The vast majority of lawyers who work in this area, including judges, believe there's a pressing need for reform. In 2007, the Law Commission recommended changes which don't go
so far as Sir Mostyn.

This need for reform has been echoed by Sir Paul Coleridge, who recently retired as High Court Judge after a long career in family law. Sir Paul set up the Marriage Foundation, which believes marriage must be strengthened and supported. Speaking in 2013, he too accepted that the law shouldn't remain unaltered for those unmarried couples whose relationships fail.

But successive governments have failed to act. It'll be interesting to scan the various party manifestos in the lead up to the general election next year to see what reforms are proposed, but few family lawyers will be holding their breath. Until then there are some practical steps for those who do not or cannot marry to protect themselves and their partner.

First, a 'living together agreement' can be drawn up. Similar to pre or post-nuptial agreements, they deal with arrangements while couples are together and when they part.

They can provide for what is intended to happen to property acquired before or during the relationship, setting out what happens to any children there may be, where they live, what time they spend with each parent, how school fees are paid and all general financial support issues.

Second, whenever any significant purchase takes place, whether it is land, property or anything else, record how it was paid for, in what proportions and by who it is to be owned, when it can be sold and what would happen to the proceeds on sale.

And last, make a will and keep it up-to-date to reflect any changes in circumstances as they occur.

These relatively inexpensive steps will help, though they are not always pleasant to contemplate and all require an element of crystal ball gazing. Otherwise, until there is an informed debate as to how the law should assist those who don't marry and parliament acts, we will have an unsatisfactory, outmoded and inherently unfair system

Graham is a partner and head of the family department at Mundays