The Law Commission

PART 2

THE SOCIAL CONTEXT

INTRODUCTION

2.1      Cohabitation outside marriage has become increasingly common over recent decades in England and Wales, and is expected to become more prevalent in the future.^[1]
2.2      Since cohabiting relationships are not formalised, and since "cohabitation" can be described and defined in different ways, it is difficult to collect entirely accurate data about it.^[2] However, demographers and other researchers have devised various mechanisms for measuring the prevalence and characteristics of cohabiting relationships and there is now a vast research literature on this subject.
2.3      We focus in this Part on the key demographic data and broad categories of cohabiting relationship that have been identified by that work. In later Parts of this paper, we shall draw on some other elements of the research literature, looking more closely at aspects of cohabiting relationships which are particularly pertinent to the issue of financial relief on separation.
2.4      The evidence on which this Part is based derives from numerous sources, the most important of which include:

(1) British Household Panel Survey: a longitudinal study of a single set of participants (originally 5,000) who have been repeatedly interviewed across a number of years since 1991;

(2) British Social Attitudes Survey: now in its 19^th cycle, this is a large-scale quantitative survey, accompanied by in-depth qualitative follow-up surveys;

(3) Census: the Office for National Statistics conducts a census of the population every ten years, most recently in 2001;

(4) General Household Survey: the main annual Office for National Statistics survey, providing a "snapshot" of the sample of the population participating in that particular year; and

(5) Millennium Cohort Study: a large-scale panel study of babies born in the UK. The first sweep, conducted in 2001-2, contains information on 18,819 babies in 18,553 families, collected when the children were aged 9-11 months.

CHANGING SOCIAL TRENDS

The rise in cohabitation and parenthood by cohabitants: key figures

2.5      The 2001 Census records just over two million cohabiting couples in England and Wales,^[3] an increase of 67% on the figures from the 1991 Census.
2.6      The number of people who live with a partner outside marriage has been increasing significantly since the 1970s. In 1986, 11% of non-married^[4] men and 13% of non-married women aged 16-59 in Great Britain were cohabiting. By 2004, the equivalent figures had grown to 24% and 25% respectively.^[5] In terms of the overall population (aged 16-59) in Great Britain in 2004, 13% of men and 12% of women were cohabiting.^[6]
2.7      The 2001 Census for England and Wales further records that:

(1) 1,278,455 children were dependent on a cohabiting couple;^[7]

(2) of those, 558,426 children were in cohabiting step-families;^[8] and

(3) 741,880 cohabiting couples had a dependent child or children;^[9]

2.8      The number of children dependent upon a cohabiting couple is reflected in the increasing rate of births outside marriage. In 1970, fewer than 10% of births occurred outside marriage.^[10] By 2004, 42% of births were outside marriage.^[11] The increase in such births has been accompanied by a similar rise in the proportion of such births in England and Wales that are jointly registered by both parents. In 2004, 76.4% of those registrations were to parents recorded as living at the same address, who may reasonably be assumed to be cohabitants.^[12] The proportion of births throughout the United Kingdom that are registered by one parent only has stayed fairly constant, at under 10%.^[13]
2.9      Amongst the Millennium Cohort, 25% of children were born to cohabiting couples. 15% of births were to parents not in any co-residential relationship with each other at that time.^[14]

Changes in marriage and divorce rates

2.10      Marriage remains the most popular form of partnership. The 2001 Census records over 10 million married couples in England and Wales.^[15] There were nearly 7.6 million dependent children in married couple families. It follows that currently approximately five in six opposite-sex couples^[16] are married, and one in six are cohabiting. Similarly, five in six dependent children live in a married couple family, and one in six in a cohabiting couple family.
2.11      There has, however, been a decline in the number of marriages per year over the last thirty years. In the United Kingdom as a whole, the number of marriages each year has dropped from around 480,000 in 1970 to around 300,000 by the end of the twentieth century.^[17] Recent years have seen a small rises: around 311,000 marriages were solemnised in 2004,^[18] of which around 270,000 took place in England and Wales.^[19]
2.12      The divorce rate in the United Kingdom rose markedly during the 1970s and 1980s, rising more slowly in recent years.^[20] An increasing proportion of marriages (two-fifths in 2003) are re-marriages for one or both parties.^[21]
2.13      Marriage is being deferred: the average age at first marriage in England and Wales has risen from 25 for men and 23 for women in 1971 to 31 and 29 respectively in 2003.^[22] One cause of delay in marriage is people's tendency to cohabit in their first partnership,^[23] combined with older age when entering into first partnerships.^[24]

Same-sex couples

2.14      Since December 2005, same-sex couples throughout the United Kingdom have been able to register a civil partnership.^[25] This confers on the partners similar rights and obligations to those applicable to married couples. It is too early to say how many partnerships will be registered.^[26] The 2001 Census recorded 78,522 individuals in England and Wales living together in the same household in a same-sex couple.^[27]

"Living apart together"

2.15      To complete the picture of couple relationships in England and Wales today, reference should also be made to what demographers call "living apart together": that is, individuals who do not live in a co-residential relationship but who have a partner. Depending on the criteria used to define the category, there may be anything between one and two million such couples.^[28] Relatively little is known about this group but work has begun on identifying and describing them.^[29]

WHO COHABITS?

2.16      The headline figures regarding cohabitation in the population as a whole can be broken down by reference to various characteristics of the individuals involved. This may provide more insight into the social practice of cohabitation and an answer to the question "who cohabits?"

Age

2.17      Age considerably affects the likelihood of cohabitation. There has been a consistent increase in cohabitation amongst all age groups since the 1970s, but it is in the younger age groups that cohabitation has been most prevalent and the rate of increase greatest.^[30] Women in their twenties are more likely than any other age group in Great Britain to be cohabiting: 24-25% of women aged 20-29, compared with 4-16% in other age groups between 16-59. Similarly, 31% of men aged 25-29 were cohabiting compared with 2-20% in other age groups.^[31]
2.18      Combined with the data about age at first marriage,^[32] it is clear that cohabitation has overtaken marriage as the preferred form of first partnership. Cohabiting couples without children tend to be younger than married couples, in line with the tendency of couples to cohabit rather than marry initially.^[33] It also appears that the age at which people decide to cohabit is rising: there is evidence that not only marriage is being postponed, but that people are generally establishing co-residential relationships (whether marriage or cohabitation) later in life.^[34]

Cohabitation by marital status

2.19      The General Household Survey in 2002 found that about three-quarters of cohabitants in Great Britain aged 16-59 have never been married and about one-fifth of cohabitants have been divorced.^[35]
2.20      The age of cohabitants is generally congruent with a particular marital status. The vast majority of younger cohabitants (16-34) have never married. Most older cohabitants (35-59), by contrast, are divorced or separated.^[36] Divorced men are more likely to be cohabiting than those men who have never married: in Great Britain in 2004-05, 36% of divorced men aged 16-59 were cohabiting, whereas only 23% of single men were. The distinction is less marked for women: in the same period, 29% of divorcées and 27% of single women cohabited.^[37]

Cohabitation and parenthood

2.21      Increasing numbers of children are born to cohabiting parents, and an increasing proportion of cohabiting couples produce children, largely as a result of women cohabiting rather than marrying in their first partnership.^[38] The increase in the proportion of births to cohabiting parents, and lone parents, has been accompanied by a corresponding drop in the proportion of married parents of dependent children.^[39] It seems that births to cohabiting parents are more often a "surprise" than births to spouses. ^[40]
2.22      The General Household Survey 2004 indicates that 52% of married women aged 16-59 have dependent children and 35% have no children. By contrast, 39% of cohabiting women of that age have dependent children, and 58% have no children.^[41] The larger proportion of cohabitants without children reflects the generally younger profile of that group, and the likelihood that cohabitants of any age will marry or separate before having children.^[42]
2.23      Conception outside marriage now rarely results in the parents' marriage prior to the birth.^[43] It has been suggested that the so-called "shotgun weddings" may have now largely been replaced by cohabitation.^[44]
2.24      Although divorce may remain the primary cause of single parenthood, an increasing number of lone parent households (mostly headed by mothers) are created by the separation of cohabiting parents.^[45] It is well-established that lone parent households are, on average, the poorest of families.^[46]

Socio-economic status

2.25      Evidence on the socio-economic status of cohabitants is available from various studies. The British Household Panel Survey suggests that while cohabitation began as the preserve of the upper-middle class, it has latterly become a classless phenomenon, at least in so far as its prevalence at the outset of a relationship is concerned.^[47] This "classless" view of cohabitation is also supported by the British Social Attitudes Survey of 2000. Nine per cent of the sample were currently cohabiting and a further 25% had done so in the past. Amongst those current and former cohabitants, cohabitation was more common amongst individuals living in households whose main source of income was earnings rather than a pension^[48] or benefits. Those in receipt of benefits were found to be less likely to cohabit, contradicting the view that cohabitation is concentrated amongst those who are less educated, less skilled and unemployed. Once the variables of age, religion and income source were controlled for, the relationship between cohabitation and social class, education and employment status was not found to be statistically significant.^[49]
2.26      However, the destination of cohabiting relationships (into marriage, separation, or continued cohabitation, and whether couples become parents while cohabiting) seems to be differentiated in part by economic circumstances. In particular, as we shall see below, cohabiting parents are generally less affluent than married parents. Both lower household income and child-bearing in cohabitation have been found to decrease the chances of the couple marrying and to increase the length of cohabitation (through not converting to marriage).^[50]
2.27      Cohabitants are more likely to rent their homes from the social or the private rented sector than married couples.^[51] This may reflect the generally lower earnings of cohabitants,^[52] which may in turn reflect their generally younger age, and also a desire to have more flexible living arrangements, to allow for easy exit should the relationship come to an end.^[53] But most cohabitants are owner-occupiers.^[54]
2.28      The Millennium Cohort Study examined level of household income, receipt of benefits and housing tenure. In 2001/2, it found that children born to "non-partnered" parents were the most disadvantaged; that children of cohabiting couples were substantially better off than them; but that children of married couples were the most advantaged. Cohabiting parents, compared with married parents, were three times more likely to have a very low household income (21%, as contrasted with 7.8%); four times more likely to be in receipt of income support (12.7%, rather than 3.2%); and three times more likely to be in social housing (30.3%, rather than 10%). By contrast, 76.4% of non-partnered parents were on very low incomes; 69.8% were receiving income support; and 58.4% were in social housing.^[55]
2.29      Work has recently been undertaken on the Office for National Statistics Longitudinal Study data, derived from the Census.^[56] This study, which compares data from 1991 and 2001, examines various characteristics of cohabitants, including age, social class, economic position, and housing tenure, by reference to the number of dependent children, if any, and the age of the youngest child. We anticipate that the results of this work will be published during the course of this project.^[57]

THE DURATION AND DESTINATION OF COHABITING RELATIONSHIPS

2.30      Measuring the duration of cohabiting relationships is difficult, and couples may "cease to cohabit" in various ways. They may separate. One of the parties may die. Or the couple may marry or form a civil partnership.

Pre-marital cohabitation

2.31      It is increasingly common for a couple to cohabit prior to marrying.^[58] Figures from the General Household Survey suggest that whilst only around 10% of women in Great Britain cohabited prior to their first marriage in 1970, by 1996, 77% did so. Official marriage data show that in 2003, 78.7% of spouses gave identical addresses before marriage.^[59] The figures are higher for second marriages: in 1992, 86% of British women cohabited prior to their second marriage.^[60]
2.32      Cohabitation in these cases may be consciously viewed by one or both parties from the outset as a trial which may lead to marriage, or the parties may drift into cohabitation and from there to marriage. Pre-marital cohabitation may tend to be shorter than cohabitation that does not result in marriage. The General Household Survey in the late 1990s found that the median duration of pre-marital cohabitation was 27 months.^[61]
2.33      The British Household Survey suggests that eventually 60% of cohabiting relationships convert into marriage.^[62] However, as might be expected given the declining marriage rate, it seems that the trend is for fewer cohabiting couples to marry.^[63] Some commentators have suggested that it is implausible to think that all those who do not marry in their twenties (the decade in which people once commonly married) are simply delaying marriage and so will marry later. They expect that far higher proportions of the generation who were in their twenties and thirties at the end of the last century will never marry than was previously the case for people at that age.^[64] This view is supported by official projections for marital status.^[65]
2.34      However, cohabiting couples who formalise their relationships are not the concern of this project. By formalising their relationship in this way, the parties acquire a legal status which thereafter dictates the legal consequences of their relationship. In particular, whether the formalised relationship ends through death or dissolution, existing family law provides comprehensive financial relief. We are concerned only with those cohabiting couples who do not marry or form a civil partnership and whose relationship ends by death or separation.

Duration of cohabitation ended by separation or death

2.35      The registration requirements of marriage and civil partnership, and the formalities associated with death and dissolution, enable us to ascertain precisely both the duration of these relationships and the reason for their ending. In view of the inherent informality of cohabiting relationships, there is no such official data relating to cohabitation, so we have no systematic means of knowing when all such relationships begin and end, or how long they lasted. However, survey data gives us an idea of the duration of cohabiting relationships.
2.36      Cohabiting relationships tend to be shorter than marriages ended by divorce,^[66] and British Household Panel Survey data suggest that, overall, cohabiting relationships are nearly five times more likely to end by separation than marriages.^[67] However, the likelihood that a cohabiting relationship will end by separation depends on various factors.^[68] For example, partnerships between young couples are likely to break down more quickly than those involving older couples, whether they marry or cohabit.^[69] It has been suggested that some cohabiting relationships have taken over ground formerly occupied by unstable marriages. That is to say, those who would formerly have observed (or come under pressure to observe) dominant social practice by marrying, but would then have been more likely than others to divorce, are now likely to cohabit and to terminate that relationship early.^[70]
2.37      There has nevertheless been a steady increase in the median duration of cohabitation. Surveys have sought to measure the length of cohabiting relationships by asking about current relationships and about past ones.
2.38      The General Household Survey has asked current cohabitants about the length of their relationships at time of interview. Self-evidently, since these relationships were still continuing and had not terminated, their total duration will have been somewhat longer;^[71] and some will have resulted in marriage. Between the mid-1980s and late-1990s, the median duration of on-going cohabiting relationships where one partner was a woman who had never previously married doubled from about 1.5 years to nearly three years.^[72] The duration of cohabiting unions between women who have divorced has (on average) consistently been longer; by the late 1990s, the median duration of their cohabiting relationships was around 4.5 years. The current cohabiting relationships of respondents to the British Social Attitude Survey 2000 had a median duration of four years and a mean duration of 6.5 years.^[73] Only a fifth of cohabitants had been in their relationships for less than a year.^[74]
2.39      More recently, the General Household Survey has asked about the length of past (and so completed) cohabiting relationships that did not end in marriage. The 2004 Survey found that amongst those aged 16-59 who had cohabited, the mean duration for a first (past) cohabiting union that did not result in marriage was 42 months. The mean length of a first and only such cohabitation was 44 months; of a first of two or more such relationships, 35 months.^[75]
2.40      As some of the figures cited above indicate, examining the average duration and other characteristics of "cohabitation" in general may be misleading. "Cohabitation" covers a wide range of relationships, each exhibiting different levels of commitment^[76] and typically varying in their duration. It may therefore be useful to differentiate broadly between the various types of cohabitation,^[77] not necessarily mutually exclusive.

Cohabitation as a first relationship

2.41      Cohabitation is more commonly adopted for one or both parties' first relationship than marriage. The British Household Panel Survey suggests that 75% of women and 82% of men cohabit rather than marry in their first relationship.^[78] These so-called "nubile" or "youthful" cases may or may not develop into a long-term relationship or marriage, and many may be quite short-lived and childless.^[79]

Cohabitation after marital breakdown

2.42      Those who have divorced are more likely (at least initially) to cohabit with, rather than marry, a subsequent partner. The British Household Panel Survey found that 70% of partnerships following divorce were not marital.^[80] The decision to cohabit rather than marry following divorce may be made for various reasons, ranging from the emotional (the experience of a "bad divorce" apparently discourages many from re-marrying),^[81] to the pragmatic (such as the desire to protect the fruits of a divorce settlement).^[82]
2.43      As we saw at paragraph 2.38 above, the median duration of cohabiting relationships involving a divorced person is higher than that of other cohabiting relationships. Divorcés are usually older than other cohabitants, and this characteristic generally tends toward longer relationship duration, whatever the form of the relationship.

Long-term cohabitation instead of marriage

2.44      Some couples, whether or not following experience of divorce, cohabit for many years without marrying. Many of these couples have children.^[83] Although they may constitute less than 10% of all cohabiting relationships^[84] there are examples both in the research literature^[85] and case law^[86] of relationships of over ten years. The longer a relationship endures, the less likely it is to dissolve.^[87]
2.45      Research indicates that there are various reasons why such couples cohabit instead of marrying, from those who consciously reject marriage as a legal institution, to those who (perhaps unaware of the legal significance of marriage) regard themselves as being "as good as married" anyway. In Part 5, we look more closely at that research and its implications for reform of the law in this area.

PUBLIC ATTITUDES TOWARDS COHABITATION

2.46      Just as the practice of cohabitation has been increasing, so too has its public acceptance. The British Social Attitudes Survey 2000 assessed public attitudes towards various aspects of cohabitation and marriage. 67% of respondents agreed that it was "all right for a couple to live together without intending to get married".^[88] Responses varied markedly by age group: 84% of those aged 18-24 agreed with the proposition, compared with just 35% of those aged over 65. However, rates of agreement amongst different age groups are changing over time - the agreement rate amongst all of the over-45 age groups had increased by more than 10% from the 1994 survey.^[89] Similar patterns were evident in responses to questions relating to the desirability of marriage before having children and attitudes towards marriage.^[90]
2.47      This suggests that attitudes towards cohabitation are not a factor of age, but of cohorts or generations. As today's older cohorts are over time replaced by the today's younger generations, the overall acceptance of cohabitation as a social practice seems likely to increase, along with the prevalence of cohabitation. Whether the increasing approval rates amongst older generations reflect an acceptance of cohabitation or a more muted tolerance of cohabitation is disputed.^[91] But what is clear is that cohabitation has become an established part of British society.

PROJECTIONS FOR THE FUTURE

2.48      The Government Actuary's Department has recently predicted that by 2031 the number of cohabiting couples will have increased to 3.8 million and that the number of married couples is expected to fall below 10 million.^[92] On this projection, over one in four couples would be cohabiting by 2031. In terms of the overall adult population,^[93] 16% of adults would be in cohabiting relationships and 41% would be married.^[94]
2.49      The average age of those cohabiting is expected to increase. In 2003, 21% of male and 18% of female cohabitants were over the age of 45. By 2031, the equivalent figures are predicted to be 41% and 36% (around 1.5 million and 1.35 million individuals respectively). Of those, 305,000 men and 234,000 women will be over the age of 65, a substantial increase on the current position.^[95] The elderly cohabiting population is therefore expected to expand at a far greater rate than that of the cohabiting population as a whole. This has obvious implications for the numbers of cohabiting relationships that are likely to be terminated by death.
2.50      The number of children dependent upon a cohabiting couple is also expected to increase as more couples have children outside marriage and fewer parents subsequently marry.^[96]
2.51      It seems reasonable to suppose that, as more people cohabit and do so for longer, the average length and stability of cohabitation will continue to increase, in line with current trends.^[97]

CONCLUSION

2.52      Cohabitation is already a significant social practice, it is growing, and continued growth is forecast. While most people in cohabiting relationships still aspire to marriage,^[98] to some extent cohabitation is being adopted instead of marriage as a family form. Parenting outside marriage and within cohabitation is also increasingly prevalent.^[99]
2.53      Increasing numbers of couples and families therefore fall outside the scope of matrimonial law dealing with the financial and property consequences of dissolution and the termination of those relationships by death, and within the scope of this paper.
2.54      Having set the social context, we describe in the next Part those key areas of the current law relating to property and finances which apply to opposite-sex and same-sex cohabiting couples whose relationships end by separation or death.
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Note 1    This trend has been observed in many other European countries. See K Kiernan, “The Rise of Cohabitation and Childbearing Outside Marriage in Western Europe” (2001) 15 International Journal of Law, Policy and the Family 1.     [Back]

Note 2    For discussion of the problems of measuring “cohabitation”, see M Murphy, “The evolution of cohabitation in Britain, 1960-1995” (2000) 54 Population Studies 43; J Knab, “Cohabitation: Sharpening a Fuzzy Concept” (2005) Working Paper No 04-05-FF, Center for Research on Child Wellbeing, Princeton University.    [Back]

Note 3    Office for National Statistics, Census 2001, Table S006; these figures include same-sex couples.    [Back]

Note 4    This includes cohabitants who are separated from a spouse but still legally married.    [Back]

Note 5    Office for National Statistics, Social Trends 36 (2006) p 27; Social Trends 35 (2005) figure 2.10; based on data from the General Household Survey.    [Back]

Note 6    Office for National Statistics, General Household Survey 2004 (2005) table 5.3. This figure includes separated (but not yet divorced) individuals cohabiting with another partner, and same-sex couples.    [Back]

Note 7    Office for National Statistics, Census 2001, table T01; 27% of these children were aged 0-2. The number of cohabiting couple households with dependent children more than doubled between 1991 and 2001. There were over 2.6 million children in lone parent families in 2001.    [Back]

Note 8    Office for National Statistics, Census 2001, table T01; Social Trends 36 (2006) records that 38% of cohabiting families with dependent children are step-families, compared to just 8% of marital families with dependent children: p 28 and table 2.14.    [Back]

Note 9    See Office for National Statistics, Census 2001, table S006.     [Back]

Note 10    K Kiernan, “Unmarried Cohabitation and Parenthood in Britain and Europe” (2004) 26 Law and Policy 33, at 40, figure 2.    [Back]

Note 11    Office for National Statistics, Social Trends 36 (2006) p 30 and table 2.19, which provides comparisons with other EU countries; Social Trends 35 (2005) pp 26-27 and figure 2.17, which shows the changes in jointly and solely registered non-marital births over time.     [Back]

Note 12    Office for National Statistics, Birth Statistics Series FM1 no 33 (2005) table 3.10.    [Back]

Note 13    Office for National Statistics, Social Trends 35 (2005) pp 26-27 and figure 2.17.    [Back]

Note 14    K Kiernan and K Smith, “Unmarried parenthood: new insights from the Millennium Cohort Study” (2003) 114 Population Trends 26, figure 1. The 15% includes a variety of parental relationships: separated/divorced at time of birth (1%), “closely involved” (7%), “friends” (2%), no relationship (4%).    [Back]

Note 15    Office for National Statistics, Census 2001, Table S004; figures for cohabitants are given below.    [Back]

Note 16    “Couples” here denotes spouses and cohabitants.    [Back]

Note 17    Office for National Statistics, Social Trends 35 (2005) pp 23-24 and figure 2.8.    [Back]

Note 18    Office for National Statistics website (20 February 2006).    [Back]

Note 19    “Report: Marriages in England and Wales, 2004” (2006) 123 Population Trends 71.    [Back]

Note 20    For detailed figures from 1961, see (2005) 121 Population Trends 75, table 9.3.    [Back]

Note 21    Office for National Statistics, Social Trends 35 (2005) pp 23-24 and figure 2.8    [Back]

Note 22    Office for National Statistics, Social Trends 35 (2005) p 24.    [Back]

Note 23    See paras 2.17 and 2.31 below.    [Back]

Note 24    J Ermisch and M Francesconi, “Patterns of household and family formation”, in R Berthoud and J Gershuny, Seven Years in the Lives of British Families (2000) pp 30-32.    [Back]

Note 25    Civil Partnership Act 2004.     [Back]

Note 26    For projections of take-up rates, see Department of Trade and Industry, Final Regulatory Impact Assessment: Civil Partnership Act 2004.    [Back]

Note 27    Office for National Statistics, Census 2001, Table UV93.    [Back]

Note 28    J Haskey, “Living arrangements in contemporary Britain: Having a partner who usually lives elsewhere and Living Apart Together” (2005) 122 Population Trends 35: if individuals living with their parents are excluded, 0.9 million men and 1.2 million women may be living in such relationships.    [Back]

Note 29    J Haskey, “Living arrangements in contemporary Britain: Having a partner who usually lives elsewhere and Living Apart Together” (2005) 122 Population Trends 35; J Haskey and J Lewis, “Living-Apart-Together in Britain: Context and Meaning” (2006) 2 International Journal of Law in Context 37.    [Back]

Note 30    Office for National Statistics, Social Trends 36 (2006) figure 2.12; J Haskey, “Cohabitation in Great Britain: past, present and future trends – and attitudes” (2001) 103 Population Trends 4, at 10, and figures 5a and 5b.    [Back]

Note 31    Office for National Statistics, General Household Survey 2004 (2005) table 5.3.    [Back]

Note 32    See para 2.13.    [Back]

Note 33    Office for National Statistics, Social Trends 36 (2006) p 27.    [Back]

Note 34    J Ermisch and M Francesconi, “Patterns of household and family formation”, in R Berthoud and J Gershuny, Seven Years in the Lives of British Families (2000) p 26.    [Back]

Note 35    Office for National Statistics, Living in Britain: General Household Survey 2002 (2004) p 57, derived from table 5.5; see General Household Survey 2004 (2005) for latest data.    [Back]

Note 36    Office for National Statistics, General Household Survey 2004 (2005) table 5.5.    [Back]

Note 37    Office for National Statistics, Social Trends 36 (2005) table 2.11.    [Back]

Note 38    See J Ermisch and M Francesconi, “Patterns of household and family formation” in R Berthoud and J Gershuny (eds), Seven Years in the Lives of British Families (2000) pp 33-4, using data from the British Household Panel Survey.    [Back]

Note 39    J Haskey, “Cohabitation in Great Britain: past, present and future trends – and attitudes (2001) 103 Population Trends 4, at 13.    [Back]

Note 40    K Kiernan, “Non-residential fatherhood and child involvement: evidence from the Millennium Cohort Study” (2006) Journal of Social Policy (forthcoming), table 2: 26% of spouses’ babies were a “surprise”, compared with 53% of cohabitants’ babies.    [Back]

Note 41    Office for National Statistics, General Household Survey 2004 (2005) table 5.9. Contrast Labour Force Survey 2004 findings that suggest equal proportions of married and cohabiting couples (38%) have dependent children and 49% and 58% respectively had no children: Office for National Statistics, Focus on Families (2005) p 1.    [Back]

Note 42    J Haskey, “Cohabitation in Great Britain: past, present and future trends – and attitudes” (2001) 103 Population Trends 4, at 13.    [Back]

Note 43    See J Ermisch, “The Puzzling Rise in Childbearing Outside Marriage” in A Heath, J Ermisch and D Gallie (eds), Understanding Social Change (2005) pp 28-30, figures 4-5. Compare the analysis of an older age cohort by A Berrington, “Entry into Parenthood and the Outcome of Cohabiting Partnerships in Britain” (2001) 63 Journal of Marriage and Family 80.    [Back]

Note 44    A Barlow, S Duncan, G James and A Park, Cohabitation, Marriage and the Law (2005) p 59; C Smart and P Stevens, Cohabitation Breakdown (2000) p 17.    [Back]

Note 45    J Ermisch, “The Rise in Childbearing Outside Marriage”, in A Heath, J Ermisch and D Gallie (eds) Understanding Social Change (2005) p 46. Omnibus Survey findings from the mid-1990s suggest that a little under 20% of lone mothers had been in a cohabiting relationship; around 60% of lone mothers had been married: J Haskey, “One-Parent Families and their Dependent Children in Great Britain” (1998) 91 Population Trends 5, table 4. General Household Survey 2000 data also suggest that “single” (ie never married, but may have formerly cohabited) lone-mothers constituted 41% of all lone-parents, 64% of whom reported at least one past cohabitation: J Haskey, “One-parent families – and the dependent children living with them – in Great Britain” (2002) 109 Population Trends 46.    [Back]

Note 46    See the Millennium Cohort Study, K Kiernan, “Unmarried parenthood: insights from the Millennium Cohort Study” (2003) 114 Population Trends 26; R Ford and J Millar (eds), Private Lives and Public Responses: lone parenthood and future policy in the UK (1998).    [Back]

Note 47    J Ermisch and M Francesconi, “Patterns of household and family formation” in R Berthoud and J Gershuny (eds), Seven Years in the Lives of British Families (2000) pp 35-6.    [Back]

Note 48    As the researchers acknowledge, in view of the current rarity of cohabitation amongst those of pensionable age, that is to be expected.    [Back]

Note 49    A Barlow, S Duncan, G James and A Park, “Just a piece of paper? Marriage and cohabitation”, in A Park, J Curtice, K Thompson, L Jarvis and C Bromley (eds), British Social Attitudes: Public policy, social ties. The 18th Report (2001) p 44.    [Back]

Note 50    See n 68 below.    [Back]

Note 51    Office for National Statistics, General Household Survey 2004 (2005) table 4.11; Office of the Deputy Prime Minister, Housing in England 2003-4 (2005) table 7.    [Back]

Note 52    J Haskey, “Cohabiting couples in Great Britain: accommodation sharing, tenure and property ownership” (2001) 103 Population Trends 26, at 33, discussing related findings from the 1998 Survey.    [Back]

Note 53    R Probert, “Trusts and the modern woman: establishing an interest in the family home” (2001) 16 Child and Family Law Quarterly 275, citing Department of the Environment, Transport and the Regions, Housing in England 1996-7 (1998) p 97.    [Back]

Note 54    Office for National Statistics, General Household Survey 2004 (2005) table 4.11; Office of the Deputy Prime Minister, Housing in England 2003-4 (2005) table 7.    [Back]

Note 55    K Kiernan and K Smith, “Unmarried parenthood: new insights from the Millennium Cohort Study (2003) 114 Population Trends 26, at 30 and table 10. See also S McRae (ed), Changing Britain: Families and Households in the 1990s (1999) p 17, for summary of similar earlier research findings; and K Kiernan and V Estaugh, Cohabitation: extra-marital childbearing and social policy (1993). Note also British Household Panel Survey findings that childbirth during cohabitation is more likely amongst less affluent couples: J Ermisch and M Francesconi, Cohabitation in Great Britain: Not for Long, but Here to Stay (1998) Working papers of the Economic and Social Research Council Research Centre on Micro-Social Change: paper 98-1, University of Essex, and J Ermisch, Trying again: Repartnering after Dissolution of a Union (2002) Working Papers of the Institute for Social and Economic Research: paper 2002-19, University of Essex, pp 2-3, observing a selection effect into marriage where the male partner is more prosperous.    [Back]

Note 56    The Longitudinal Study constitutes a representative 1% sample of the population of England and Wales, and so contains over 500,000 members at any given time.    [Back]

Note 57    Longitudinal Study Project Number 30049: Cohabitation: deaths, same gender couples and transitions in relationship status and economic well-being. The project is lead by L Clarke, Centre for Population Studies, London School of Hygiene and Tropical Medicine. The study also includes a comparison of cohabitants and spouses, examination of same-sex cohabitants in the 2001 sample, and an examination of relative mortality rates.    [Back]

Note 58    Many of the new civil partners will have been cohabiting for a long time.    [Back]

Note 59    Office for National Statistics, Marriage, divorce and adoption statistics, Series FM2 No 31 (2006) table 3.38.    [Back]

Note 60    J Haskey, “Cohabitation in Great Britain: past, present and future trends – and attitudes” (2001) 103 Population Trends 4, at 11-12.     [Back]

Note 61    J Haskey, “Cohabitation in Great Britain: past, present and future trends – and attitudes” (2001) 103 Population Trends 4, at 10-11 and figure 7. See also J Haskey, “Trends in marriage and cohabitation: the decline in marriage and the changing pattern of living in partnerships” (1995) 80 Population Trends 5; J Ermisch and M Francesconi, Cohabitation in Great Britain: not for long but here to stay (1998) Working papers of the Economic and Social Research Council Research Centre on Micro-social Change: Paper 98-1, University of Essex.    [Back]

Note 62    J Ermisch and M Francesconi, “Patterns of household and family formation”, in R Berthoud and J Gershuny, Seven Years in the Lives of British Families (2000) p 27.    [Back]

Note 63    J Haskey, “Cohabitational and marital status histories of adults in Great Britain” (1999) 96 Population Trends 14, at 17. See also J Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute for Social and Economic Research: Paper 2000-27, University of Essex.    [Back]

Note 64    M Murphy and D Wang, “Forecasting British Families”, in S McRae (ed), Changing Britain: Families and Households in the 1990s (1999) p 102. See also the assumptions made by the Government Actuary’s Department in projecting future cohabitation in the never-married population: http://www.gad.gov.uk/marital_status_projections/2003/cohabitation_assumptions.htm (last visited 4 May 2006).    [Back]

Note 65    See para 2.45 below.    [Back]

Note 66    The median duration of marriage at point of divorce in 2004 was 11.5 years: (2005) 121 Population Trends 85, table 3. It may be supposed that many spouses will have been living apart towards the end of that period, reducing the duration of the factual, as opposed to legal, relationship, not least because the ground for divorce will be proved in some cases by reference to at least two years’ separation.    [Back]

Note 67    Controlling for socio-economic and other variables, cohabitants are only two to three times more likely than spouses to separate: R Böheim and J Ermisch, Breaking up – Financial Surprises and Partnership Dissolution (1999) Working Papers of the Institute for Social and Economic Research: Paper 1999-09, University of Essex, pp 7, 12-13. Compare figures calculated by J Haskey from an Office for National Statistics Omnibus Survey, “Cohabitational and marital histories of adults in Great Britain” (1999) 96 Population Trends 14, table 6: the factor ranges from 1.6 to 9.4.    [Back]

Note 68    It is particularly difficult to disentangle the respective impact on individuals’ socio-economic status of pre-existing factors, relationship status and relationship breakdown: K Kiernan, Cohabitation and divorce across nations and generations (2003) Centre for Analysis of Social Exclusion: Paper 65, p 17, available at http://sticerd.lse.ac.uk/dps/case/cp/CASEpaper65.pdf (last visited 4 May 2006). However, it seems clear that (whether married or cohabiting) those in economically disadvantaged circumstances are more likely to separate than others. On the impact of socio-economic circumstances on likelihood of cohabitation, marriage, separation, divorce and parenthood, see S McRae (ed), Changing Britain: Families and Households in the 1990s (1999) p 17; C Smart and P Stevens, Cohabitation Breakdown (2000) ch 4; and various papers based on British Household Panel Survey data, available at http://www.iser.essex.ac.uk/pubs/workpaps/ (last visited 4 May 2006) including, J Ermisch and M Francesconi, Cohabitation in Great Britain: Not for Long, but Here to Stay (1998) Working Papers of the Economic and Social Research Council Research Centre on Micro-Social Change: Paper 98-1, University of Essex; R Böheim and J Ermisch, Breaking up – Financial Surprises and Partnership Dissolution (1999) Working Papers of the Institute for Social and Economic Research: Paper 1999-09, University of Essex; J Ermisch and M Francesconi, “Patterns of household and family formation”, in R Berthoud and J Gershuny, Seven Years in the Lives of British Families (2000); J Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute for Social and Economic Research: Paper 2000-27, University of Essex; J Ermisch, Trying again: Repartnering after Dissolution of a Union (2002) Working Papers of the Institute for Social and Economic Research: Paper 2002-19, University of Essex.    [Back]

Note 69    Office for National Statistics, Living in Britain: the General Household Survey 2002 (2004) p 59; J Haskey, “Cohabitational and marital histories of adults in Great Britain” (1999) 96 Population Trends 13, at 17-9 and table 6; R Böheim and J Ermisch, Breaking up – Financial Surprises and Partnership Dissolution (1999) Working Papers of the Institute for Social and Economic Research: Paper 1999-09, p 9 (though note the finding regarding high risk of separation for women beginning partnerships in their 40s). For recent data on divorce rates according to age, see “Report: Divorces in England and Wales 2004” (2005) 121 Population Trends 85: the highest divorce rate was for those in their mid- to late-twenties.    [Back]

Note 70    See for example M Maclean and J Eekelaar, “Marriage and the Moral Bases of Personal Relationships” (2004) 31 Journal of Law and Society 510, at 537. Compare the view of A Barlow, S Duncan, G James and A Park, Cohabitation, Marriage and the Law (2005) pp 59-60.    [Back]

Note 71    J Haskey, “Cohabitation in Great Britain: past, present and future trends – and attitudes” (2001) 103 Population Trends 4.    [Back]

Note 72    J Haskey, “Cohabitation in Great Britain: past, present and future trends – and attitudes” (2001) 103 Population Trends 4, at 10 and figure 6.    [Back]

Note 73    The higher mean duration indicates that there were a number of relationships substantially longer than the median duration which consequently raised the average.    [Back]

Note 74    A Barlow, S Duncan, G James and A Park, Cohabitation, Marriage and the Law (2005) p 17.    [Back]

Note 75    Office for National Statistics, General Household Survey 2004 (2005) table 5.15.    [Back]

Note 76    See Part 5 for discussion.    [Back]

Note 77    We have already discussed the cases of what turn out to be pre-marital cohabitation, from paragraph 2.31 above.    [Back]

Note 78    J Ermisch and M Francesconi, “Patterns of household and family formation”, in R Berthoud and J Gershuny, Seven Years in the Lives of British Families (2000) p 26.    [Back]

Note 79    K Kiernan and V Estaugh, Cohabitation: extra-marital childbearing and social policy (1993).    [Back]

Note 80    J Ermisch and M Francesconi, “Patterns of household and family formation”, in R Berthoud and J Gershuny, Seven Years in the Lives of British Families (2000) p 28.    [Back]

Note 81    J Haskey, “Cohabitation in Great Britain: past, present and future trends – and attitudes” (2001) 103 Population Trends 4, at 12, citing conclusions from the British Social Attitudes Survey Report for 1987.    [Back]

Note 82    J Haskey has observed that divorced women may have particular financial and personal incentives to cohabit rather than remarry: “Cohabitation in Great Britain: past, present and future trends – and attitudes” (2001) 103 Population Trends 4, at 8.    [Back]

Note 83    British Household Panel Survey data indicate that child-bearing leads to longer cohabitation, though they are still subject to the high risk of union dissolution associated with cohabitation: J Ermisch and M Francesconi, “Patterns of household and family formation”, in R Berthoud and J Gershuny, Seven Years in the Lives of British Families (2000) pp 38-9.    [Back]

Note 84    J Ermisch and M Francesconi, “Patterns of household and family formation”, in R Berthoud and J Gershuny, Seven Years in the Lives of British Families (2000) p 27.    [Back]

Note 85    For example, J Lewis’ study focused entirely on relationships of ten years’ standing: Individualism and commitment in marriage and cohabitation (1999) Lord Chancellor’s Department Research Series No 8/99.    [Back]

Note 86    Classically, Burns v Burns [1984] Ch 317: the parties cohabited for 19 years and had two children; more recently Stack v Dowden [2005] EWCA Civ 857, [2006] 1 FLR 254, another 19 year relationship producing four children.    [Back]

Note 87    R Böheim and J Ermisch, Breaking up – Financial Surprises and Partnership Dissolution (1999) Working Papers of the Institute for Social and Economic Research: Paper 1999-09, University of Essex, pp 12-13.    [Back]

Note 88    A Barlow, S Duncan, G James and A Park, “Just a Piece of Paper? Marriage and Cohabitation”, in A Park, J Curtice, K Thomson, L Jarvis and C Bromley (eds), British Social Attitudes: Public policy, social ties. The 18th Report (2001) table 2.2. A survey conducted for the BBC Panorama programme in 2003 reported that 84% of respondents agreed that it was “ok for people to live together rather than get married” (http://news.bbc.co.uk/1/hi/programmes/panorama/2504815.stm (last visited 4 May 2006)).    [Back]

Note 89    A Barlow, S Duncan, G James and A Park, “Just a Piece of Paper? Marriage and Cohabitation”, in A Park, J Curtice, K Thomson, L Jarvis and C Bromley (eds), British Social Attitudes: Public policy, social ties. The 18th Report (2001) table 2.5.    [Back]

Note 90    A Barlow, S Duncan, G James and A Park, “Just a Piece of Paper? Marriage and Cohabitation”, in A Park, J Curtice, K Thomson, L Jarvis and C Bromley (eds), British Social Attitudes: Public policy, social ties. The 18th Report (2001) table 2.3.    [Back]

Note 91    See A Barlow, S Duncan, G James and A Park, Cohabitation, Marriage and the Law (2005) pp 25-26.    [Back]

Note 92    These are the principal projections from Government Actuary’s Department, Marital Status Projections for England and Wales (2005), available at http://www.gad.gov.uk/marital_status_projections/background.htm (last visited 4 May 2006). See also “Report: 2003-based marital status and cohabitation projections for England and Wales” (2005) 121 Population Trends 77. Note that, since the total population is projected to rise by a larger number than the total number of couples, the proportion of people in couples (of any sort) is projected to fall.    [Back]

Note 93    “Adult” here refers to those over the age of 16.    [Back]

Note 94    The current proportions are 10% and 53% respectively.    [Back]

Note 95    54,000 men and 34,000 women: see Government Actuary’s Department, Marital Status Projections for England and Wales (2005).    [Back]

Note 96    J Haskey, “Cohabitation in Great Britain: past, present and future trends – and attitudes” (2001) 103 Population Trends 4, at 18.    [Back]

Note 97    K Kiernan, Cohabitation and divorce across nations and generations (2003) Centre for Analysis of Social Exclusion: Paper 65, pp 29-30. J Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute for Social and Economic Research: paper 2000-27, University of Essex, found evidence of this trend during the 1990s in British Household Panel Survey data, and notes that the longer a relationship lasts, the lower the chances of separation.    [Back]

Note 98    The British Household Panel Survey data for 1998 found that 75% of current cohabitants expected to marry, though only a third had firm plans, and that seven out of eight people in cohabiting relationships expect to marry a some point in their life: J Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute of Social and Economic Research: Paper 2000-27, University of Essex. In the case of same-sex couples, it remains to be seen how many civil partnerships will be registered, and so how many same-sex couples will remain as unregistered cohabitants.    [Back]

Note 99    And the expectation of marriage amongst such parents is less common than amongst cohabitants generally: J Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute of Social and Economic Research: paper 2000-27, University of Essex.    [Back]