Jo Edwards: You’re Wrong About Marriage, Neil O’brien

Jo Edwards is a family lawyer and mediator who chairs the law reform committee of national family lawyers’ organisation Resolution

In an article last week titled It’s time to talk about marriage, Neil O’Brien argues against proposals to introduce rights for unmarried couples in the Ministry of Justice’s recently concluded consultation A fairer end to relationships, on the basis that it undermines family stability, which he describes as a key determinant of a child’s wellbeing.

For supporters of the proposals – under which a framework of rights and responsibilities for unmarried couples on separation, on a more limited basis than rights for married couples, with clear qualifying criteria and the ability to opt out, would be introduced – putting children at the heart of any reform is also vital.  But that can only be achieved by recognising that, increasingly, people aren’t getting married and legislating for the consequences of unmarried couple relationships ending.

As a developed nation, we aren’t alone in that trend.  The decline in marriage rates is well known and as life expectancies have increased, so too has the age at which people marry.  In 2021, for the first time ever, the number of children born to unmarried mothers in the UK outstripped the number born to married mothers.

But rather than burying our heads in the sand and continuing to bang the drum for marriage, it’s time for a more sophisticated approach, which continues to promote and incentivise marriage, whilst providing a safety net to those who need it when an unmarried relationship breaks down.

The reasons why people don’t marry are nuanced and varied.  For many, it’s a conscious, mutual decision.  Those who don’t like the ‘patriarchy’ associated with marriage have long had the option of a civil partnership. But take up has been limited, suggesting that it is not the institution itself that people are shunning.  Ongoing attempts to simplify weddings law are to be applauded but won’t likely move the dial significantly either.

Since the consultation began, I’ve been contacted by people in desperate positions, with limited to no claims on separation despite years of being married in all but name.  When I ask, ‘what do you say to those who argue, you should have just got married?’, their answers reveal the policy conundrum.

Sometimes there was a plan to marry, but it simply wasn’t the priority. Building a family was more important than formalising the relationship and then one of them subsequently cooled on the idea of marriage.  For others, coercive controlling behaviour is often at the heart of it – one said, ‘looking back I can see that the refusal to marry was all part of the pattern of control and that he never intended to marry me as he understood the financial consequences for him, whereas I just assumed that as a parent I had the same rights as married couples’. The common law marriage myth often feeds into people’s behaviours.

So, whilst it’s right that Governments routinely act on evidence that one institution or behaviour produces better outcomes, it is not as simplistic as asking whether policy should recognise that fact rather than pretending that all relationship structures have identical consequences’. Promoting marriage and introducing measures that address the breakdown of unmarried relationships aren’t mutually exclusive.  Especially where, as here, the changes proposed will reinforce the fiscal reasons to marry, by restricting the claims unmarried couples will be able to bring, and by continuing to extend the inheritance tax exemption on death to married couples only.

The proposals will protect the vulnerable. They would not find themselves ‘bounced into a contract they never signed’; they would do what happens in other spheres where an unequal relationship exists by providing legal protection to the weaker party, through limited redress where the end of a committed relationship leaves one in a position of need.

Crucially, in so doing, it will reduce the number of children left in poverty when an unmarried relationship ends, by ensuring that their main carer can afford to provide for them. A child doesn’t decide their parents’ marital status, yet their childhood experience is determined by that factor as the law stands.

There are also savings to the state to be made by ensuring that people take appropriate financial responsibility when their unmarried relationship ends. One lady told me that, at the end of a coercive controlling relationship with three young children, her former partner – a multimillionaire property developer – was appealing the Child Maintenance Service assessment of £140 per week and threatening to move overseas to avoid his responsibilities.

Despite him owning several properties, she would need to go to court to have her and the children’s housing needs met and under the current law that property would be in her ex’s name and would revert to him when the children finish education. Faced with those hurdles, many give up and fall back on welfare benefits, even when their ex can afford to provide financial support.

Under the new proposals, it will only be if someone can show that they are in financial need that they will be able to bring a claim, and any ongoing ‘spousal’ maintenance would be exceptional. If that gives those children a better start, and thus takes financial burden away from the state, who could object to that?

Cohabitation reform isn’t expected to deter couples from marrying or to otherwise negatively affect overall patterns of family formation. Those who want to, will still marry. Those who don’t, won’t.

Since 1996, the number of cohabiting couples in the UK has more than doubled, from just under 1.5 million to around 3.5 million in 2025. Current projections suggest that by 2031, one in four families could be cohabiting. This reflects long-term social change rather than any specific policy decisions, unlikely to change as a result of the proposals.

If correctly formulated, new laws in this area will continue to promote marriage, whilst providing a limited safety net for those who don’t marry. That will be of benefit to all children – that much is clear.

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