By Robert Whiston, April 30th 2009
The reason why it is important to read this report is that it contains data that is at variance with the impression given by those seeking to alter and reform how the law treats female cohabitees (male cohabitees are left to fend for themsleves).
This particular survey has been extensively quoted in recent reports, including the media, outlining the need to change the legal position of cohabitees. It is therefore vital for a balanced public debate that the present impressions, which contain bias and errors, be corrected.
Readers are asked to note the schism between what the reformers claim for the survey on cohabiting and what the survey and public’s actual responses to questions which focused based on ‘long-term relationship’ and the proposed legislation of compensation 2 years. Reformers gloss over the aspect of a long-term caveat.
Details and more information about the 2008 British Social Attitudes Survey (the 24th Report) can be accessed via http://www.natcen.ac.uk/natcen/pages/news_and_media_docs/BSA_24_report.pdf and http://www.natcen.ac.uk/natcen/pages/or_socialattitudes.htm and http://www.sagepub.com/upm-data/18380_Ch2_Barlow_et_al_FINAL.pdf ).
A shortened version, “The ‘Common Law Marriage’ Myth” can be found at: http://www.oneplusone.org.uk/marriedornot/PDF/CommonLawMarriage.pdf
Professor Anne Barlow and 3 other female academics have authored ‘Cohabitation and the law: myths, money and the media’ and take their data from the 24th Report (Prof. Anne Barlow has already been linked to in a previous paper to Prof Elizabeth Cooke, ‘The Living Together Campaign,’ and the Law Commission and specialises in land law).
The reason why it is important to read this report is that it contains data that is at variance with the impression given by those seeking to alter and reform how the law treats female cohabitees.
To counter, qualify and put into context the claim that, “9 out of 10 people think that a cohabiting partner should have some financial provision”, one only has to look at the Tables below taken from the British Social Attitudes Survey. The Tables are also presented by Prof. Anne Barlow in her commentary as the reasons why change is needed. Take, for example, Table 2.2 (below) which clearly shows that only 9% of those asked agree that marriage is’ just a piece of paper’ – implying it has a far greater significance in the public’s mind.
TABLE 2.2 HERE
The general public is not aware of the ‘outcomes’ for children from the different types of marital status and so answer at 27% and 28% that they see or know of little difference. Had the same amount of efforts been put into publishing these results rather than hiding them, the answers, one can confidently assume, would be radically different.
At still over 50% in favour of marriage, it is slow and unrewarding work for the reformers to alter people’s gut feelings. And it surely is a reversal of fortunes to learn that 60% of respondents (up from 48%) know that marriage gives more financial protection. This rather scotches the innuendo that women generally don’t know they have no rights upon separation.
It is abundantly clear that the public is not fooled by the sales pitch that they are mistaken if they believe common-law-marriages exist legally (Table 2.5). Only14% defiantly believed in common-law-marriages. The 37% who probably believed in common-law-marriages are the group, it can be presumed, that are most likely to seek advice and verification before committing.
TABLE 2.5 HERE
The figures for 2006 are cited as they vary little from 2000. Just as many respondents definitely believe there is not such thing as common-law-marriages as those that do. However, if the ones who can’t choose are omitted, it has to be conceded that the groups who might believe in common-law-marriages outnumber those who know it to be a false marital status.
The killer blow is reserved for Table 2.6. It is here that ‘public opinion’ decisively undercuts the stance of the cohabitee legal right reformers. Those in favour of monetary compensation after only 2 years of cohabiting are half the figure for 10 and 20 year periods (approx 38% versus 89%).
This figure is attained only after including the conditions that the man has a much higher paid job and owns the family home. What one wonders would have been the response had it more representative i.e. both male and female cohabitees earned more or less the same amount and rented/leased their accommodation ?
TABLE 2.6 HERE
For men it would be dangerous to discount or discard the other messages contained in the above Tables. Without thinking through the consequences and without having a legal training, the respondees make an intuitive guess about how they feel towards a topic. Many may feel it will never come about and/or others my feel they stand in line to gain. We can be almost certain that the overwhelming majority will not see their replies as forming any legitimate basis for new legislation or for the validation of what could become a punitive regime.
As one would expect the preferences shown by cohabitees endorses their status (see Table 2.3). Therefore only 7% believe that married couples make better parents than unmarried parents and 19% see marriage as merely a piece of paper. This signifies not ignorance but the degree to which outcomes, e.g. scholastic achievement and child abuse, have been withheld from them.
If there is a bias in the questionnaire results it is that only 269 cohabitees replied compared with over 1300 married couples who replied (Table 2.3). This might give undue weight to the view of the minority, i.e. the cohabitees, particularly when all other Tables listed are roughly comparable.
TABLE 2.3 HERE
The low figure for the second question re: “Even though it might not work out …” could reflect the high numbers of divorced and separated couples who now cohabit (see Fig A).
Adding together the proportion of divorced and separated men but who now cohabit as an alternative gives a total of over 50%. The comparable figure for women is approx.33%.
Fig A. Percentage of people who cohabit by marital status (GB) (2006)
Despite being cited by reformers as essentially the powerhouse and justification for change, closer reading reveals it to have no such potency or mandate for reform. What it does reveal is peoples’ commonsense. These then, are some of the salient points:
- Cohabitation remains a popular choice of relationship in Britain.
- One in nine of people (11%) are currently cohabiting.
- More than one third of people (36%) have cohabited at some time in the past / during their life.
- Despite being accompanied by considerable media coverage, a government-funded media campaign three years ago (2004), aimed at educating cohabiting women that they do not have the same legal rights, has had little effect.
- Half of adults (51%) still wrongly believe that there is such a thing as ‘common law marriage’, which gives cohabitants the same rights as married couples.
- But 4 in 10 people (38%) correctly know that this (item 5) is untrue. This is almost identical to the proportion of people who thought this in 2000, despite the campaigns that have taken place.
- Cohabitants are no more or no less knowledgeable than anyone else: 53% believe that common law marriage exists, and 39% correctly say that it does not.
- Around one in six (15%) of those who own their accommodation have a written agreement about their share in the ownership.
- 1 in 5 (19%) have sought advice about their legal position.
- 9 in 10 people (89%) think that a cohabiting partner should have a right to financial provision on separation if the relationship has been a long-term one, includes children and has involved prioritizing one partner’s career over another.
- 4 in 10 people (38%) think that a cohabiting partner should have a right to financial provision if the relationship only lasted two years and involves no children.
Yet it is from the above tables and graphs that Anne Barlow feels confident enough to conclude that;
‘The myth that there is something called common law marriage that gives cohabiting couples legal rights, lives on, despite the media exposure of the last few years.’
It might ‘live on’ but the data shows it is only among a small minority. She then manages to work out that;
“There is little appetite for maintaining the deep legal divisions drawn between married and unmarried cohabiting families. The Law Commission should bear this in mind in their review of current legislation’
“Little appetite” ?
Many would conclude that there is more then a significant appetite for maintaining the legal divisions between married and unmarried couples (how can you have a married cohabiting family ? It is surely an oxymoron in English law ?).
Being on intimate terms with Elizabeth Cooke, a newly appointed Law Commissioner, we can be in no doubt that she will ensure her conclusions are borne in mind.
The Attorney-General, Baroness Scotland of Asthal, and something of an anti-male reputation, when itemising the forces coordinated to reform cohabiting laws affirmed in Hansard at Column 1442 (13th Mar 2009) that, “We also have the One Plus One website”.  Does this mean One Plus One’s website is being used or controlled by government and is acting as an organ or tool ?
In the same speech the Attorney-General revealed how after a study of the ‘Living Together’ campaign Professor Anne Barlow declared how she was ‘very positive’ towards it.
Lastly, the report authors, lead by Barlow, feel emboldened to state that, “People are confused about the legal consequences of living together outside marriage”, but is that a fair assessment ?
This paper has attempted to show that the public is not so easily bamboozled and has a fair grasp on what is current state of the law regarding marriage.
There is no evidence that ‘people’ want it changed.
As part of an overall and long term Gov’t policy to “Stamp out homophobia” we are in danger of launching society into a hetero-phobia campaign.
DETAIL UNDER PIC – Janet Scotland, QC, Attorney-General, born 1955 in Dominica. Called the Bar in 1977 and specialised in family and children’s law. Made Baroness Scotland of Asthal, in 1997.
 Hansard 13 Mar 2009 : Column 1442 http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90313-0008.htm
Origins of the Myth of Common-Law Marriage http://www.oneplusone.org.uk/marriedornot/PDF/CommonLawMarriage.pdf.
Professor Anne Barlow, was a co-author of “Cohabitation and the law: myths, money and the media” and Anne Barlow also co-authored “The Living Together Campaign” and Anne Barlow worked with Elizabeth Cooke (Reading Uni) on books and papers regarding land law and community property.