The case against marriage

family law

The case of Tini Owens, who is appealing to the Court of Appeal against the refusal of the court below to grant her a divorce, has led to a flurry of debate. The advocates of no-fault divorce have jumped on it as further evidence in support of their cause, and others, such as Marilyn Stowe, have had other things to say about the case.

But I wonder whether the case highlights something more: the whole idea of state control over marriage. It has long been the case that the number of people living together without getting married has been rising, and one of the reasons for this is that more and more couples are rejecting that idea of the state having control over their relationships. The Owens case, whichever way it finally goes, is only going to encourage people to think that way.

Now, I don’t want this post to sound like a call for change to defend the institution of marriage. These days I’m pretty lukewarm about marriage as a concept, and I certainly have no wish to defend it. In any event, the people will choose for themselves whether they wish to enter into marriage, and that is how it should be. No, this post is not intended to be any sort of warning, just a non-comprehensive look at the reasons why some people choose not to marry, in the hope of informing the debate. I think that many supporters of marriage believe that all cohabitants choose not to marry simply to avoid their responsibilities, and I hope that this post, the contents of which are garnered primarily from hearing first-hand from people who have chosen not to marry, will make them think again about cohabitation.

It may be an idea that seems foreign to many, but a lot of people simply do not see why a relationship must take place within a state-governed (previously of course a church-governed) construct. They don’t like the construct, and you only have to look at the Owens case to see why. How dare anyone else tell you whether or not your relationship is over?

They think that that idea of marriage is at best outdated, and at worst used as a method of control. The state believes that marriage is a good thing, and so it encourages people to enter into it by various means such as tax reliefs, and then discourages people from leaving the institution by making divorce unnecessarily difficult. Relationships, they believe, are personal, and nothing to do with the state.

It is useful to look at this from the other angle: why exactly do people choose to get married? Well, there are of course many reasons (I tried Googling the question, but came up mainly with ‘relationship advice’ fluff), but perhaps the following are the main ones:

1) To make a binding commitment to one another. To a greater or lesser degree depending upon your upbringing, we have it beaten into us from a young age that the only way to make a binding relationship commitment to another person is to marry that person. Well, the anti-state control proponents do not see it that way. They believe that it is perfectly possible to commit without signing a marriage certificate. And of course they are correct: many people cohabit without marriage for the rest of their lives. And if they don’t, the reason is that the relationship broke down, not because they didn’t sign a piece of paper. To put it another way, what keeps you together is your feelings for one another, not some piece of paper you signed years ago.

2) They believe that they must be married in order to provide a stable base for having children. But many cohabitees who choose to have children believe they already have a suitable platform for having children. And who are we as the state to tell them otherwise?

3) Religious and cultural reasons for entering into marriage. It’s an obvious thing to say, but we live in an increasingly irreligious and culturally homogenised society. Fewer and fewer people feel obliged to comply with tradition. Choosing not to marry is just another way of saying that their relationships are personal to them, not the business of anyone else.

4) To provide support for one another. This can be both emotional and financial support during the course of the relationship, and financial support should it break down. Well, a happy cohabiting couple will obviously support each other during their relationship. As to what happens when it breaks down, perhaps they think that they are just mature enough to sort it out between themselves? After all, many couples are, married or not.

Now, as a proponent for no-fault divorce myself I may appear to have just argued against it in the sense that ‘if you don’t like the present system, then simply don’t get married’. But marriage is here to stay, and maybe it is useful when considering how the laws governing it work to see things from a different perspective. Certainly, the Owens case risks bringing marriage into dispute, and it may well encourage more couples to reject the institution.

Photo by Robert Cheaib via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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24 comments

spinner - February 20, 2017 at 5:11pm

You could create your own legal framework for your relationship without marriage as people do by as your describe buying a house together and putting each other into their wills and so on. The issue with the state authorised relationships at the moment is that as soon as people sign them they lose control of what level of obligation there will be to that relationship and essentially turn it up to the maximum with even prenuptial agreements not necessarily being respected. If the state wants to continue to be involved in peoples relationships then it needs to make ending the relationship a whole lot cleaner and allow people themselves within certain boundaries what level of financial commitment they want to have. England and Wales are so far behind on this compared to the rest of the world it’s ridiculous.

Ned - February 20, 2017 at 6:34pm

I don’t always agree with John, but this was certainly a very interesting piece, which, it seems to me, is hard to find fault with.

However, there is something I do take issue with — but that is not really with John at all, but with the STATE. Or rather the STATES (not as in “United”) of this world.

Because the sad thing is, whilst I, being divorced, and thus a lot poorer, now tend to think that cohabitation makes a helluva lot more sense, overall — unfortunately the kind of women many men tend to go out with (myself included) are simply not going to make it without “benefit” of marriage.

By this I mean that, if for whatever reason, one is attracted to a foreign woman, ie. one not on a passport belonging to the country you are living in, you are going to be pretty well stuck. Because, as far as I am aware, no state in the world will allow a man (or woman) to just cohabit with a non-native woman (or man) — WITHOUT them being married. It is a state requirement for it to happen, or at least to remain that way.

In other words, fall in love with a “foreigner” — and you are STUCK. Either you marry, or you will pretty soon have to break up. The STATE decides that for you, because it will NOT “recognise” a cohabiting relationship. Visas expire, and they can’t be renewed — at least not without a long trip overseas, which can get to be a bit of a bind after a while. Which of course pushes the couple to marry — the only way they can reasonably continue their relationship.

It may not take very many years before cohabitation becomes the norm — but being able to simply live with someone who is not of your nationality, just because you happen to love each other…. Well, I fear that is a long, long way off…

No wonder John didn’t even mention that “possibility”… because it is sadly IMpossible.

JamesB - February 21, 2017 at 11:31am

re no state in the world will allow a man (or woman) to just cohabit with a non-native woman (or man) — WITHOUT them being married

No. You are very wrong, it makes no difference. Speaking as someone who has done the forms and knows a lot of people in this situation. Perhaps in the US, not here.

The days of weight being given to argument because of rank and confidence, like Iraq, have gone and you are simply wrong.

JamesB - February 21, 2017 at 11:43am

Ned, correct me if I am wrong, but I think you seem to be an American in America. We seem to get more and more of them on this site which is primarily about the UK. Like half the comments on the Daily Mail website are US these days. I don’t really have an issue with it, just wondering really and correcting as was implying people only marry for passports which I think could be construed by them (and perhaps me) as a little bit insulting as well as factually incorrect. Anyway, have a nice day.

Ned - February 21, 2017 at 1:25pm

Sorry, JamesB, I do have to correct you.

And I am not entirely sure you understood what I was saying, which was that — let’s say in MANY countries then — as a resident, you can’t just cohabitate (for very long) with a woman who is not a resident of that country. We are not talking about “morals” — it is simply a question about legal residency.

As far as I know, that applies to the UK, America, Canada, Europe…. and also certainly all countries where the British legal system holds sway. At least. So what you suspected I might be impugning — I wasn’t.

I’d certainly be interested to learn if there ARE indeed any countries where what you seem to be proposing, is allowed.

Anyway, my point was in answer to John Bolch’s statement that “More and more couples are rejecting that idea of the state having control over their relationships.” It may well be true. But you can’t do much about it if you just happen to fall for a “foreigner”. Nothing to do with “passports”. It is all to do with “length of stay” — and thus visas.

JamesB - February 21, 2017 at 1:44pm

I am talking about legal residency.

My wife is a Filipina (without going into her genetic makeup). We did not have to get married for her to stay. It was based on her being in a relationship with me not being married to me.

I know several other relationships like that. Indeed, I know of a gay couple who were raided by the home office at four in the morning to check that they were in bed with each other. So there and you haven’t answered the point on if you are a citizen of the USA, I am talking about this country.

JamesB - February 21, 2017 at 1:49pm

The gay couple were not married at the time by the way. Although they are now. The point is the non EU person in that relationship is and was able to stay in the UK (and EU) based upon being in a relationship as a partner with EU person. As he is German the wages limit did not apply with it being UK there is an earnings or capital requirement in addition. You may have had a point in the past but not any longer, the form is a FLR(M) and is colloquially known as spousal visa, even though you don’t have to be married to get it. Spanish and Philippine ancestry, gorgeous, like the lady from the Littlewoods advert in case you were wondering, Mylene Class I think she is called and she is pure class, very clever, scientist, chiet vet father etc, people should question their prejudices.

JamesB - February 21, 2017 at 1:58pm

By chief vet, yes, I do mean, THE chief vet.

JamesB - February 21, 2017 at 2:19pm

p.s.

Yes, German immigration law does apply to Germans and their partners in the UK. So, I have to go round the houses with my wife to get a Schengen visa where they currently do not. Next years, she will have been here 10 years and she can get ILR (indefinite leave to remain and access to EU (for now…another matter) then a year later a British passport. EU nationals just walk around like they own the place and don’t have all this hoop jumping, should be the same for all non EU people and think it will be as that would be fair.

JamesB - February 21, 2017 at 2:50pm

I meant, p.s.

Yes, German immigration law does apply to Germans and their partners in the UK. So, I have to go round the houses with my wife to get a Schengen visa where they currently do not. Next year she will have been here for 10 years and she can get ILR (indefinite leave to remain and access to EU (for now…another matter) then a year later a British passport. EU nationals just walk around like they own the place and don’t have all this hoop jumping, should be the same for all non UK people and think it will be as that would be fair. The law does keep changing. It is a disgrace that EU people just stroll in and my wife’s scientist friends have had to leave. UK loss, Canada’s gain (literally, them and Australia and New Zealand and the USA where they have ended up as we are ‘clamping down’ on immigration, it sucks, all to let in loads (many millions) of not so educated EU people.

(Edited by moderators. See Comment Moderation Policy: http://www.marilynstowe.co.uk/comment-moderation-policy/ )

JamesB - February 21, 2017 at 2:52pm

The increase in Portmanteaus is apparent and necessary by the people waking up to the issues that confront them rather than a left right ding dong about whether the town hall needs a coat of paint while they build bloody great big mosques down the road.

Ned - February 21, 2017 at 3:16pm

JamesB: “We did not have to get married for her to stay.” Then indeed I stand corrected. And lucky for you, because believe me, this does not apply everywhere in the world. However, I did respond to your question — I think you missed it, but no matter.

It may well be that other Europeans, to an Englishman, are not exactly “foreigners” — but legally they are. I believe you missed that point too, since “foreigners” does not only connote “Europeans”. An Argentinian, a Brazilian, and a Colombian for instance, are all foreigners — in the UK. But if you fell for a pretty Brazilian, could you live with her in her country? I doubt it.

And THAT is the point I was making. “The state” may be moving away from regulating marriage, as John suggests. But generally only for its citizens. Unless you have any hard evidence to the contrary? Perhaps you’d care to elaborate on your own example.

JamesB - February 22, 2017 at 10:20am

For ‘It may well be that other Europeans, to an Englishman, are not exactly “foreigners” — but legally they are’

I think you will find that legally they are not, indeed that is the issue the non binding referendum we had in this country was about. It may be that they become foreigners again, I doubt it, seems to me the Government will not implement the will of the British government and it is delaying and conning the people, and there will be a constitutional crisis and general election before the Government agree to not implement the referendum, they make me sick.

I don’t know about the Brazilian immigration policy, I gave the examples of the EU, Germany, and UK.

I thought I did elaborate on the two examples I gave, including my own and a good close German friend of mine. Not sure what more to say about that, what practices they get up to or something?

Anyway, have a nice day.

JamesB - February 22, 2017 at 10:31am

By Europeans in above context I mean EU citizens. Europeans may not be EU citizens, example Albanian etc.

Re state moving away from regulating and getting involved in marriage, not sure if John Bolch said that, I don’t read his articles anymore as they piss me off, but if they are then that is a good thing as they have made a right mess by poking their noses in making a land of angry single people. Exaggerating the point as I don’t think people should be forced to stay in bad marriages, and I am reluctant to make it but they (the Government, Family court, CSA/CMEC/CMOptions/CMS et al) have pushed it too far.

That they don’t require people to be married to get their foreign partner in is a step in the right direction. The line says something like who you live with as partner in a family way or something like that if you want the line, look up the FLR(M) form, I did yesterday again but have forgotten the exact wording at the moment.

JamesB - February 22, 2017 at 10:21am

By ‘I doubt it, seems to me the Government will not implement the will of the British government’, I meant, I doubt it, seems to me the Government will not implement the will of the British people.

JamesB - February 22, 2017 at 10:48am

Actually, thinking about it, you may be right technically, although overall the way we treat EU citizens compared with UK citizens is currently negligible and is the issue the referendum was fought on. If he were British he may not have been able to keep his non EU partner in the country, as Germany do not have the income capital threshold thing. This issue is before the high court today. Also they can go wherever they like in the EU with his partner as spouse, showing UK marriage certificate, where we have to go through many hoops to get wife a Schengen visa each time.

JamesB - February 22, 2017 at 10:53am

I will give another example. Wife and I on holiday in Turkey recently (avoiding the inquisition to get Schengen visa) very nice it was too. The point, we met Turkish waiter, who show’s us photo of beautiful daughter, he says, she is British, we ask how come he doesn’t see her, he very sadly says, because I can’t get a visa to go to UK even if we get married. She is in Scotland, he doesn’t earn enough nor she nor they have enough assets between them or a family to move money around as the Pakistanis do to con the Government to think that they do in order to get the visa. I am not saying I disagree with the policy, I am just saying that people need to be better educated on real politics and how it affects real people rather than Blairist political correct non addressing the issues nonsense. Which is why I write and probably why you write also. Anyway, nice exchanging with you, have a nice day Ned.

JamesB - February 22, 2017 at 10:56am

If it were up to me I would tighten the law by removing the ability to qualify for the immigration visa by capital rather than income as that is being abused by people moving money about and claiming it as their own, should be only income based. Hope the high court doesn’t overrule the government later on this as Government are following the people on this. Politics and government has become confusing. Have a nice day all.

JamesB - February 22, 2017 at 11:01am

Headline, 21 minutes ago, Income rules for foreign spouses upheld. Another poor example in the press misleading people as should read income or capital rules for foreign spouses upheld.

As Trump would say, another deliberate omission by bad media people with their own agenda ruining society. Whether by intention or stupidity.

Probably by stupidity as they simplify and exaggerate, then publish then report on the mess they are causing, a vicious circle.

JamesB - February 22, 2017 at 11:18am

To clarify the point as I seem to be rushing.

If you are UK citizen and cant meet the income threshold (think 18k pa or 22 if 1 child or more with more) then you can get visa for partner if you can borrow 60k from someone for a few months then give it back.

If you are other EU citizen non UK in this country currently then there is no income or capital threshold as per the German example I gave. What happens to the non EU partner if we leave the EU (highly unlikely)? I would think they get to stay as non UK people will have more rights to family life than UK people at that time I expect. I can’t see the government keeping one partner and chucking the other one out, although I think they should.

Heard the example on the radio this morning. The Polish person who is allowed to stay wants to bring their family over after we leave, should that be allowed? Seems the answer will be based on the dodgy income and capital thresholds and there will be a lot of dodgy immigration based on the movement of a lot of dodgy £60Ks after leaving and the government and press saying its not them or the law, when it F’ing well is them by not closing the loopholes and the bad press not reporting the loopholes. So the Filipino schientists and Indian Drs go to the US instead. Perhaps I am getting cycnical or playing devils advocate too much I hope so and we get proper immigration policy with proper work and study visas etc. Theresa May has not got a good track record in that regard though. Quick headlines to please the masses like today and end of March instead of real decent policies. She needs to go. Heard it here first.

JamesB - February 22, 2017 at 11:19am

Scientists, not schientists, although it does have a ring about it.

JamesB - February 22, 2017 at 11:19am

I need to do some work now.

JamesB - February 22, 2017 at 11:24am

Just looked it up.

Applicants who have cash savings can make up for a shortfall in earnings if the cash savings are at least £16,000 plus 2.5 times the shortfall. So, for example, someone with an income of £17,600 would require £18,500 in savings (=£16,000 + £2,500). People without income can qualify if they have cash savings of at least £62,500. This isn’t exclusive as other factors such as children may be applicable in addition.

JamesB - February 22, 2017 at 11:28am

It is a messy business, but the immigration laws needs to be tightened up rather than ducked as politicians tend to, to get the net migration figure down to less then 100k asap and women to have more babies rather than importing them and diluting community cohesion. Need to Give more work visas also and unfortunately I think we may need ID cards as part of the solution to sort the mess out.

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