TEORÍAS Y MODELOS DE LA PRÁCTICA DE ACTIVIDAD FÍSICA

Introduction

The primary aim of this chapter is to examine selected academic and practitioner contributions to the literature on the developing cohabitation trend, which began to be recognised in practice in the late 1970s¹⁰³. This was followed in succeeding decades by extended commentary in the debate on whether this social trend should be recognised in a formalised legislative regime for unmarried cohabitants. The chapter critically reviews the most significant themes which have emerged,

with the principal aim of highlighting those ideas which, while originally of their time, still have contemporary relevance, albeit sometimes potentially in a slightly different manner from that initially intended.

A secondary aim is to select from the prolific output those arguments which might support and dovetail with, rather than merely to run alongside, contemporary pressure towards incorporation of modern themes of equality and human rights which have been developing Family Law in modern times; also to look for key underlying theory and if possible to identify sound reasons for cohabitants to be treated as part of the family rather than as outsiders, and in some way inferior. The main reason emerging from the leading commentators appears to be the

functionality argument, early adopted and maintained by Barlow¹⁰⁴ and later taken up by Cooke¹⁰⁵ without much attention being paid to any theoretical arguments for protecting cohabitation as an alternative to marriage and registered civil

partnership¹⁰⁶.

103 Ruth Deech,‘The case against legal recognition of cohabitation’, (1980) 29 International and Comparative Law Quarterly, pp 480-497.

104 Anne Barlow and Craig Lind, ‘A Matter of Trust’(1999) 19(4) Legal Studies 468, pp 469-475.

105 Elizabeth Cooke, Anne Barlow and Therese Callus, Community of Property: A Regime for England and Wales Nuffield Foundation, 2006,

106 This aspect is explored further in Chapter 5 which looks at the potential reasons for couples’

choosing cohabitation over other possible relationships which would impart legal status.

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The corpus of literature: 1980-2015

A substantial body of literature has been accumulated on cohabitation, of which the Law Commission’s 2006-7 work examined a portion of the most significant for their purposes.

However, the impact of this substantial academic and practitioner contribution has apparently been such that its effectiveness in practice appears to be in inverse proportion both to its bulk and its persistence over a lengthy period of time. Thus some key contributions must now be selected for contemporary relevance, as the Law Commission did in 2006, since - like most long running lobbying campaigns - the nature of the debate has changed over time. Unfortunately, in the case of cohabitation, this has culminated in nothing being done at all to advance any of the sometimes powerful arguments by achieving the practical outcome of legislation.

Nevertheless, there has been some advance in case law, since as noted by Sir Paul Coleridge when addressing Jordan’s annual Family Law Conference in 2013¹⁰⁷ the Supreme Court has been obliged, in the absence of missed opportunities for primary legislation, to adapt and clarify existing principles of English law which assist

cohabitants’ property rights, as set out in the judgment of Baroness Hale in the Supreme Court in the Scottish appeal of Gow v Grant (2012), and further supported by similar statements in those of her brethren in that case.

This review of the literature could therefore inevitably not be entirely comprehensive, since there is now so much of it that, as when selecting cases, some will inevitably be classified as only further exemplars of principles already discussed or points already substantially taken.

Selecting the key literature on cohabitation

It is of course yesterday’s news that looking for underlying theories in contemporary Family law is not unlike looking for a needle in a haystack, since much of the

107‘ Lobbing a Few Pebbles in the Pond: The Funeral of A Dead Parrot’, annual Family Law Conference 9 October 2013, www.marriagefoundation.org.uk;

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development of the common law is incremental with little regard for the codification found in civil law jurisdictions: in this, cohabitation is no different from any other mainstream family topic, although perhaps more notoriously debated without

apparent impact than in the case of some other such mainstream topics. Moreover this particular debate has stretched out over a period in which several governments - - any of which could have implemented family specialist recommendations from both academe and practice in relation to cohabitation - have not given the matter priority, although is fair to say that there have been historic hurdles to law reform in the field of cohabitants’ rights dating even from before the Family Law Act 1996.

The contemporary couple/family relationship and its incidences - partnership status, property and responsibility for children - have not attracted the sort of theoretical analysis beloved of the continental academic. The creation of a framework of normative legal rules to protect cohabitants’ rights is not a project that has claimed instant recognition as the core of a corpus of new principles which must be

enshrined in legislation either urgently or at all. In this respect cohabitation has apparently had an unfair deal since that has not been a fate which has necessarily hindered either initial or amending legislation in other Family law fields which were arguably neither as pressing, although they might not have been as apparently controversial.

.

The starting point for a search for doctrinal influences on the development of contemporary family law, is therefore, according to Cretney¹⁰⁸, existing English statute and case law and a study of the processes which led to change in the law in the twentieth century, and not a study of the social and economic forces which

influence attitudes towards legislation and legal practice, although he does allow that

‘the process of law reforming can be revealing’.

In his seminal history of the development of Family law - a discipline which was said by Lord Shawcross as late as 1947, to be ‘a very simple branch of the law’ which required ‘no study or thought at all’ - ` Cretney considers that officials in government departments and parliamentary counsel have great influence on law reform and that it is therefore worth studying unpublished papers and archival sources, including

108 Stephen Cretney, Family Law in the Twentieth Century, OUP, 2003, Preface, pvii.

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studies on the working of the legal system, in order to trace the path of reform and perhaps to articulate what he calls the ‘fundamental characteristics’ of English Family law, since it seems that Family law in England Wales does have such

characteristics, even if it does not have either underlying theory or much of a normative framework .

However, not much theory or framework seems to have applied to cohabitation, although one class of such literature, of influence in its time in generating initial academic interest in cohabitation, but which is probably of little contemporary use, is the early statistical work of commentators such as Kiernan¹⁰⁹ and John Haskey, until recently Head of the Population and Demography Unit of the Office of National

Statistics. This is because of the conclusion set out in Chapter 1 that numbers are not logically a key driver for reform in the cohabitants’ normative regime context, so that only the existence of the trend and identification of its continuing upward sweep - which is supported by figures - is still of interest in relation to the literature.

Although it is without doubt that cohabitant families now form a significant part of the population, there is some confusion as to their precise position in the statistical pattern of relationships, owing to the way in which the Office of National Statistics’

Families and Households tables and periodic bulletins are sourced and structured.

As a result, it seems to be not simply a temptation to take the easy way out, if one skates straight over the contribution of both the Office of National Statistics and the commentators on their various published figures, since there appears to be little coherence in their present day approach to documenting what cohabitants are doing and why. This is not least as the latest interest in cohabitation versus marriage appears to be only in the numbers of registered civil partners who have upgraded to full marriage, which does not help to sharpen the longstanding ‘fuzziness’ of the data on un-formalised cohabitation as such, because those registered civil partners

already had the benefit of a recognised legal regime.

109 Kathleen Kiernan,‘The Rise of Cohabitation and Childbearing Outside Marriage in Western Europe’ (2001) 15 International Journal of Law, Policy and the Family p1; Kathleen Kiernan and Kate Smith ’Unmarried Parenthood: new insights from the Millenium Cohort Study’, (2003)114 Population Trends 26, figure 1;

Kathleen Kiernan ‘Unmarried Cohabitation and Parenthood in Europe’ (2004) 26 Law and Policy 33,p.40, figure 2.

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Making sense of relevant contemporary cohabitation figures

Statistics released following the 2011 Census certainly show that married couples are now in a minority. In the married age groups - that is, those old enough to be married - numbers had slipped to 47% of the population, although in London, for example, only one third of the population was married¹¹⁰. However then the picture becomes more confusing, , as one reason for the low married numbers is the steep rise in the numbers of single person households and because of the 105,000

registered civil partnerships apparently identified at that time. More confusingly, this also does not seem to fit with the averages consistently claimed that registered civil partnerships have been taking place at a rate of approximately 6,000 per year since the implementation of the 2004 Act in 2005.

Statistics that are a little more helpful are the Office of National Statistics releases of January and November 2015, which certainly do support the current trend towards a preference for cohabitation over marriage. For example, the table Families and Households 2014, released on 28 January 2015 shows that at that date cohabitant families had increased by a fraction under 30% in the period 2004-2014, making them now the fastest growing family form within the 18.6m UK families, of which 3m were identified as opposite sex cohabiting couples’ families and 84,000 same-sex cohabitant families as compared with 12.5m married couples’ families overall.

However these figures did not separate out age groups which appear to be of key relevance to the trend identified.

The equivalent Table for 2015, released in the Bulletin of 5 November 2015,

presents a picture which is a degree more helpful than the earlier release - although still far from clear in attempting to discern how the trend towards cohabitation is actually working. This is because the tables now include marriage and registered civil partnership figures as a sole category, giving a figure of 12.5m families in this class with a slightly raised figure of 3.2m opposite sex ‘cohabitant’ families out of a total of 18.7m families – although this at least separates out the un-formalised

110 The Guardian, 11 December 2012.

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cohabitants of both same and opposite sex unions and does show who precisely is still without recourse to some legally recognised normative regime.

This most recent statistical exercise has, nevertheless, concerned two particular pressure groups whose aims are to support family stability, one of them, in particular, specifically aiming to support marriage. This latter group is the Marriage Foundation which has identified that while at the present time 90% of 60 year olds have been married at some stage, at most only 50% of today’s young adults are likely to be so, and that divorce is currently highest in the age group 50-64; while other figures¹¹¹ indicate a 25% increase in marriages of the over 65s, whether divorced, widowed, or previously single. The second group is the Equal Civil Partnerships for All campaign, which considers that the marriage figures generally could be improved if opposite sex civil partnerships were permitted, as this has been the experience of other jurisdictions¹¹².

Leaving aside the surge in the 65+ age group, marriage figures for all ages in the last few years appear to have hovered at around a quarter of a million a year with

apparent slight rises, for example increasing by 5% in 2012 to 262,000, although in reality this is a net fall, owing to the increase in overall population figures. At the same period cohabiting family formation has been a galloping trend, suggesting that the literature needs to be reviewed in relation to the function of cohabitation and any law reform taken from that point.

Key themes of the post millennium literature

It therefore seems that much literature of the past 40 years will be of limited use in looking for such underlying theory as it is unlikely to relate effectively to

contemporary cohabitation which, if one pursues the social constructivist path to enlightenment, now ought to claim some space in a reform programme to bring the law up to date, so that it matches and serves current social and economic conditions.

111 The Observer, 15 June 2014 based on ONS figures for 2011-12.

112 This will be followed up in Chapter 5 which basically considers the choice between marriage and cohabitation but in which the extension of civil partnership should perhaps have a place.

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Nevertheless, there are some useful contemporary pointers, starting with the Family and Parenting Institute, the Centre for Social Justice and the Institute for Social and Economic Research, Essex University, which all provide useful data in assessing the likely form of the family of the future based on current attitudes. Baroness Deech of Cumnor, who has always been and remains against legislating for cohabitants’

rights, has not been afraid to draw on these sources to show that the sharp decline in divorce decrees is because of the rise of cohabitation from which it is much easier to emerge if a relationship breaks down. As a result she considers that there is no need to reform divorce law as this would only push the statistics up even higher, but that different methods are required to service the contemporary family unit more appropriately¹¹³.

Meanwhile there is in fact some still potentially useful literature, especially where based on empirical studies, which could be analysed in order to ascertain what, if any, useful macro- or micro-level work has been done in the past 40 years to look individually at the four broad family groupings which society now appears to favour – marriage, for both opposite- and same-sexes; opposite-sex cohabitation; registered civil partnership and informal same-sex cohabitation: and then to draw broad brush conclusions as to the requirements of contemporary family law.

In the circumstances it must first be asked whether it is worth dissecting all the history, when it has been only relatively recently that serious attention has been devoted to cohabitants. However, given the clear numbers of cohabitants that have been emerging from the Office of National Statistics¹¹⁴, it would appear that it surely cannot still be argued that some sort of norm cannot at last be created in which cohabitant families can be recognised. While much of what has been written in the past is now out of date, because, some of the earliest are surprisingly in tune with contemporary trends. For example, one of the leading original mid-1990s academic and practitioner monographs¹¹⁵ sought to argue support for the function element of

113 Ruth Deech, 2009-10 Gresham Lectures, ‘Cohabitation’, www.gresham.ac.uk, reprinted in (2010) 40 Family Law, p39.

114 See Chapter 1 and above.

115 John Dewar and Stephen Parker, Cohabitants, 4^th edn, Sweet & Maxwell,1995.

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cohabitation, an analysis since firmly taken up and established by Barlow et al¹¹⁶ and Cooke et al¹¹⁷, regardless of the fact that the cohabitants’ constituency still has no discrete legal regime. In this context, perusal of the bibliography of the extended literature quickly establishes that the ‘numbers’ element is such that they are only peripherally important, since the various historic and contemporary drivers appear to be culture, ideas, concepts, perceptions and other influences. This is not really surprising since while cohabitation numbers have steadily risen, as has the numerical population though not in proportion, ideas and other influences have changed, not least because of the changing composition of that population.

Dewar & Parker’s early work, emanating from this very productive partnership of a leading academic and leading practitioner, and obviously aimed primarily as a book for practitioners, did nevertheless attempt to look at the underlying theory, which practitioners inevitably require for persuasive argument in court – in this case the identification in cohabitation of a similar function to marriage in establishing a family format as well as an intimate relationship.

The function argument is, nevertheless, separately important since it is trite that Maine’s discovery of the fundamental truth of law making in his respected classic 19^th century text Ancient Law is that law has historically only made rules for societies which have already in practice created them¹¹⁸ so that early identification of the function element of cohabitation is notable . In other words, if it is unarguable that there was already a normative role for cohabitation identified by the early academic commentators, which was also taken up by other, later, English based academics after it seems much of the literature began: this is paralleled in other cases in Family Law, for example in Australia. It therefore seems that any arguments against the factual establishment of a normative function for cohabitation are now superfluous:

116 Barlow, Anne (2004), ‘Regulation of cohabitation, changing family policies and social attitudes: A discussion of Britain within Europe’, 26 Law and Policy 57, at pp. 58-9. Anne Barlow and Geraldine James ‘Regulating Marriage and Cohabitation in 21st Century Britain’, (2004) 67(2) Modern Law Review, pp. 143-176; Anne Barlow ‘Regulation of Cohabitation, Changing Family Policies and Social Attitudes: a Discussion of Britain within Europe ’(2004) 26 Law and Policy, pp. 57-86; Anne Barlow,

‘Cohabitation law reform - Messages from research’ (2006) 14 Feminist Legal Studies, pp, 167-180;

Anne Barlow, ‘Cohabiting relationships, money and property: the legal backdrop’, (2008) 37 Journal of socio-economics, pp.502-518.

117 Elizabeth Cooke, Anne Barlow and Therese Callus, Community of Property: A Regime for England and Wales, Nuffield Foundation, 2006.

118 Sir Henry Maine, Ancient Law, 1861, John Murray and reprint 1908 with a foreword by F Pollock.

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what is thus missing if Maine’s approach is followed is a normative legislative scheme to complement the social function.

For this inquiry it is not, therefore, intended to include a timeline survey which would be disproportionate, but to select those contributions to the doctrinal debate which appear to remain most relevant to the contemporary context, with such evolutionary background as is strictly necessary. Earliest comment in fact more often includes key contributions from the judiciary in decided cases than from academe, especially before academic comment began to develop in this field, because in the early days of doctrinal development, the primary source of case law – the judiciary - was the most reliable, although continuing evolution of family law also draws some backward looking reflections¹¹⁹.

The salient points appear to fall into the following five categories:

(a) the historical background

(b) underlying theories on the distinction between marriage and cohabiting relationships

(c) the contemporary basis and relevance of the choice to cohabit rather than marry

(c) the contemporary basis and relevance of the choice to cohabit rather than marry