ABSTRACT
Having seen how family structuring away from marriage-what the French term "démariage"—is sweeping across Europe (Kiernan 2004), this article aims to look at the legal responses to these social trends. In examining the main legal models which govern cohabitation relationships in Europe and other Common Law jurisdictions , Britain, in general and England and Wales in particular, stands apart. The law here does not fall neatly into any of the main groupings. While toying with American-style pro-marriage policy, it has also been prepared to take on an inclusive and functional approach to cohabitants on an ad hoc basis reminiscent of the Canadian and Australian experience and is now actively proposing a European-style civil partnership register for same-sex cohabitants (Great Britain. Department of Trade and Industry [DTI], Women and Equality Unit 2003a; Queen's Speech 2003). Despite widespread social acceptance of different-sex cohabitation as a family form in Britain, the government is still seemingly undecided as to how
best to react as illustrated in its consultation document Supporting Families (Great Britain. Home Office 1998). On one level, it acknowledges "families do not want to be lectured about their behaviour or what kind of relationship they are in" (ibid.: para. 4.2). Yet at another level, it states that the government's preferred option is to promote marriage, at least as a parenting structure:
Thus while the government has now shown commitment to the ending of discrimination against same-sex couples who are unable to marry (DTI. Women and Equality Unit 2003a; Queen's Speech 2003), legal discrimination against different-sex cohabitants is to continue, with only a need to provide them with better information being acknowledged (DTI. Women and Equality Unit 2003b: paras. 3.5-3.6). Thus government family policy remains far more equivocal about the position of different-sex cohabitants who parent and partner in a functionally similar manner to their married counterparts. It is here, and no longer perhaps in the same-sex context, that the moral and political malaise about démariage is at its most visible, making it a good focus for this discussion.
