Perhaps partly because a high proportion of marriages break down, many couples postpone the decision to marry, and live together instead. They may never marry. An increasing number of children are born to cohabiting couples and a large body of case law has developed in relation to financial issues which arise on the breakdown of cohabiting arrangements. In some cases couples regulate their relationships by cohabitation contracts.
Cohabitation is outside the remit of this book, but the extent of the social changes it represents has given rise to intensive debate about the differences between cohabitation and marriage. In particular there has been a great deal of public discussion of the merits of marriage contracts, much of it generated by the proposals published by the Law Society’s Family Law Committee in 1990. The difficulty in accepting the idea is that it may be said to be against public policy for a married couple to legislate for their financial arrangements during the marriage and provide, as such contracts would, for what would happen on divorce. There is a paradox here because where a widow who has been dependent on her husband makes a claim against his estate (under the Inheritance (Provision for Family and Dependants) Act 1975) if he has left her insufficient to live on, a court considers her claim on the basis of what she might have been awarded if the marriage had ended in divorce instead of death.
It is also ironic that a woman who has cohabited with a man has no claim against him for maintenance for herself when the relationship breaks down, or any claim to a share in his property unless she can establish it by showing what she has contributed to it or what property he has accepted an obligation to give her. Until the Law Reform (Succession) Act 1995 was passed, if she could