From Mrs. Burns To Mrs. Oxley: Do Co-habiting Women (Still) Need Marriage Law?

Following the U.K. Labour government commitment to marriage in the 1998 Green Paper ‘Supporting Families’, Barlow and Duncan produced a robust critique calling for ‘realism’ in recognising that many couples are now choosing not to marry, that too many do not make informed decisions as to whether to marry or not and that, on the basis of their survey, over 40% of respondents believed that some form of family law protection would be available to them, despite their lack of marital status. When added to a concern that economically vulnerable cohabiting women do not receive adequate protection in property law, it seemed all too obvious that the government commitment to marriage should be challenged. In fact, government policy does seem to have shifted somewhat when, partly as a tactical manoeuvre to help the passage of the Civil Partnership Act 2004 and specifically recognising concerns with the needs of economically vulnerable parties, the issue was referred to the Law Commission for England and Wales. This places the ‘realism’ arguments firmly within the reform agenda. However, this article argues that there is a need to look more closely at the arguments used by the ‘realists’, in particular at the evocation of the figure of Mrs. Burns. The more contemporary case of Oxley v. Hiscock is used to both raise questions about the socio-economic profiles of cohabitants, as well to question the presentation of property law as failing women (and family law as offering the protection they need). I argue that feminists should take a cautious approach in relation to the seemingly compelling argument that cohabitants will benefit from the extension of aspects of marriage law to cover property issues at the end of a relationship.     

未婚怀孕:意外还是计划之内?——流动青年同居者的怀孕意愿与经历研究

未婚怀孕现象在中国呈上升趋势,而且随着未婚同居的兴起,未婚怀孕越来越多地发生在同居伴侣中。本文通过分析来自35位有未婚怀孕经历(自己或伴侣)和30位正面临未婚怀孕风险的两类流动青年男女同居者的深度访谈材料,探讨了流动青年的同居怀孕意愿,以及导致或阻止他们在同居关系中怀孕的因素。研究发现,同居很大程度上增加了流动青年女性意外怀孕的风险,这种风险的增加往往是由于避孕时的疏忽大意和依赖有效程度较低的避孕方式所致,很少是因为缺乏避孕意识和知识。研究还发现,同居怀孕情况的增多部分取决于计划内怀孕的增多,同居关系特征、家庭期待和生育的年龄规范压力是影响怀孕意愿的关键因素,怀孕成为结婚准备过程中的一步,有时甚至是结婚前必要的一步。总之,在流动青年群体中,一种关于同居、怀孕和婚姻的联合决策模式正在形成,尽管这打破了组建家庭的传统顺序,但由婚姻来组织生育行为的社会规范并未被动摇。     

Cohabitation Law Reform – Messages From Research

Empirical research in this field has underlined the diversity of the cohabitation population, the existence of the common law marriage myth and the lack of consensus on the best way forward for reform of the law in England and Wales. Against the backdrop of the English Law Commission’s on-going project on cohabitation law, this article will explore the reasons found by recent research for people’s choice of cohabitation over marriage, the interrelationship between commitment and economic vulnerability and the tension in feminist debates as to whether an extension of rights for opposite-sex cohabitants that are analogous to married spouses (either by an opt-in model or opt-out model) might be an appropriate solution or a reinforcement of patriarchal marriage values. It will also consider, given recent research findings and other initiatives aimed at raising awareness about the legal differences between different styles of cohabitation relationship, law’s dual and conflicting role in shaping regulated family structures whilst both protecting vulnerable family members inside and outside such structures and at the same time also offering socially acceptable standards of dispute resolution in this most personal of spheres.