ABSTRACT
Meanwhile marriage as we know it at present is expressly recognised as a right to be protected by Article 12 of the European Convention on Human Rights , which provides that ‘Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercise of this right’. These ‘national laws’ in England and Wales have caused some collision between English Law and the ECHR in respect of transsexuals 5 because of the ‘deeply embedded’ culture of marriage in English law referred to by Lord Nicholls of Birkenhead in Bellinger v Bellinger 6 in the House of Lords in 2002, the very year in which the division between the ECHR and English law came to a head. It is therefore important to understand the incidences of marriage, which include various rights and obligations, 7 so that it must be distinguished from alternative relationships. This is one of the most hotly debated distinctions between marriage and the contemporary alternative of a stable cohabiting relationship, and therefore perhaps one of the
most diffi cult hurdles to surmount in arguing for a discrete property (and personal?) regime for those adults heading family units who choose to cohabit rather than to marry, even where there are children of the relationship. 8
The legal consequences of marriage include that the parties retain separate legal as well as social personalities, making separate decisions about their medical treatment, 9 having fi nancial obligations to each other, 10 and privileges in relation to criminal law, taxation and protection of their home rights and against domestic violence and harassment. 11
2.2 Marriage: a status Despite the fact that neither marriage nor civil partnership (nor heterosexual nor same-sex cohabitation without formalities) now alone defi nes the family, it is still usually important to establish whether there is a marriage or whether one of the other partnering relationships is established, since such differing statuses are at present still crucial to much statutory family law. 12 This may change in the foreseeable future, as increasing claims are made with regard to parentage as the core status relationship. Owing to the many changes in legislation that have occurred in the last decade and which, it seems, are essential in the inclusive society, the government is no longer able explicitly to support the institution of marriage as the best environment in which to bring up children, although the infl uence of the current Conservative-led coalition government, as reported by the media, tends as much towards supporting traditional marriage as the previous Labour government appeared to tend towards a more inclusive approach. Consequently, confusing messages are coming out from this source, which also espouses the principle that children’s interests should be paramount and identifi es this as the ‘fi rst principle’ of modern family law (see the Home Offi ce’s consultation document, Supporting Families , 1998). Thus has Tolstoy’s Divorce , which alone constituted the family law of half a century ago, been overtaken by wider views.
