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July 28, 2022updated 03 Aug 2022 5:35pm

To remain relevant, the institution of marriage needs a rethink

By Emily Brand

Before we can restore faith in the institution of marriage, family law needs to be brought up to date, argues Emily Brand

Weddings are a billion-pound industry, as are dating apps and television shows matching strangers (with or without their clothes on). But, in the UK, heterosexual marriages are at their lowest number since records began in 1862. Divorce rates continue to hover at about 33 per cent.

Perhaps people are falling out of love with the institution of marriage – but not with the idea of being in love. If the institution of marriage does not evolve to reflect how we live now and how expectations have changed, there could be negative consequences – both for individual people, and for society at large.

Firstly, as a society, we should steer people towards thinking more about the nuts and bolts of a marital relationship before they sign on the dotted line. After all, marriage confers on couples unique legal protections that are still not offered to cohabitants. To gain these benefits surely it is worth investing time and energy into learning what usually works and what might not.

This could take the form of some basic tuition, just like the theory test required to begin driving. It is accepted we might not all become perfect drivers, but at least the groundwork has been laid to help us on the way – the same might be said of entering a marriage. Subject matter for this theory test might include pre-nuptial agreements and prompts about the need to discuss who is expected to pay for what, and who might stop working when a child comes along.

The new divorce law introduced this April has also abolished the legal concept of adultery. Given that it no longer evidences marital breakdown, does that make infidelity acceptable? Perhaps it might make it easier for some couples to believe that adultery does not necessarily mean the end of a relationship.

At a recent event to mark Boodle Hatfield’s 300th anniversary in business, entitled ‘300 Years of Family Life: Science, Sex or Psychology?’, we brought together a range of experts to field questions related to the topic of marriage. As one wise member of the audience commented, ‘We have to seek financial advice when buying double glazing but not when we embark on marriage’.

To reignite a greater understanding of marriage, I would like to see wide-ranging public discussion about who the law supports within families – and whether the current framework is still fit for purpose.

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Our firm was founded in the same year the novel Moll Flanders, by Daniel Defoe, was published. For Moll, marriage was a means of survival in a world of emerging capitalism dominated by men. Clearly, much has changed. Today we have DNA testing (that can conclusively identify paternity) and women have the choice – in theory at least – to be financially independent. In this context it may be that the marriage rates are dropping not because marriage itself is redundant but more that it is less relevant to the way we now live. If this is the case, then perhaps it is time to start afresh and look at who needs to be supported by the law, and how. For example, there are currently no statutory protections for cohabitants or unmarried individuals engaged in polygamous relationships; no allowance for they/them pronouns on legal documents; or allowance for ‘others’ to be included in legal marriage.

As the members of the panel at our recent event pointed out, institutions like marriage can feel outdated, or function in such a way that they make people feel excluded – when in fact they, and the framework of family law, should evolve with society to reflect and support people as they actually live today and not how they should live or might have lived in the past.

Marriage founded on lifelong love is not a concept that everyone buys into. Indeed, evolutionary anthropologist Dr Anna Machin argued there that there is no such thing as a monogamous species, observing that romantic love is ‘something dreamt up by the Victorian poets’. My view is that those who choose to walk down the aisle should be comprehensively prepared. They should also be able to enter into an institution framed by laws that reflect the modern world.

Emily Brand is a partner at Boodle Hatfield

Image Credit: MaxSobeh/Shutterstock

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