Coupledom and The Law

Summary

1. INTRODUCTION

John Eekelaar’s inspiring and seminal 2017 work Family Law and Personal Lifeidentified the critical questions about relationships and the law with which, in England and Wales at least, we are still grappling. Indeed, it is probably fair to say that no jurisdiction has yet found the perfect solution to balance the conflicting rights and risks of individual autonomy as against family solidarity in the complex, interdependent mesh of post-welfarist family life. On the other hand, some great strides have been made in England and Wales to recognise non-traditional forms of coupledom, mainly based on equality and nondiscrimination arguments. These have both expanded our recognition of types of formalised couple relationships beyond traditional heterosexual marriage, and changed the law’s hierarchy of relationship recognition. At the heart of the debates on whether further reform is needed has been the issue of whether the law should take a functional or form-based approach to relationship regulation. With equal marriage and equal civil partnership now a reality in England and Wales, there is a view that formalised relationship choice is sufficient. Perhaps the law, through these reforms, can succeed in establishing what John Eekelaar has described as ‘a new’ ethic ‘of interpersonal relations’, where ‘normative’ law is used to persuade people into desirable forms of behaviour. By extending the realm of choice within and beyond marriage for same- and differentsex couples, has the law done enough to acknowledge new social norms and provide a tenable legal framework? Or do arguments in favour of ‘functional’ cohabitation law reform, which involve interrogating both the role of family law and the normative challenges to the exercise of personal autonomy within family relationships, still hold good? Indeed, might those arguments even extend to other informal couples, such as those Living Apart Together?

Reflecting on these issues at a moment when the House of Commons Women and Equalities Committee is considering whether to recommend cohabitation law reform to government, this chapter aims to explore whether enough has been achieved, or whether there is still an active role for family law to play in regulating wider forms of coupledom.