Cohabitation in Twentieth Century England and Wales: Law and Policy

• Date: 01 January 2004
• Published date: 01 January 2004
• DOI: http://doi.org/10.1111/j.0265-8240.2004.00161.x
• Author: Rebecca Probert

LAW & POLICY, Vol. 26, No. 1, January 2004 ISSN 0265–8240

© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK,

and 350 Main Street, Malden, MA 02148, USA.

Blackwell Publishing LtdOxford, UKLAPOLaw & Policy0265-8240© Blackwell Publishing Ltd. 2004January 20042611000

Original ArticlesLAW & POLICY January 2004Probert TWENTIETH CENTURY ENGLAND AND WALES

Cohabitation in Twentieth Century England

and Wales: Law and Policy

REBECCA PROBERT

This article reviews the complex, and sometimes conflicting, policies adopted

by the law of England and Wales over the course of the twentieth century. Its

aim is to highlight the fact that cohabitation is not merely a modern legal issue,

but one with which both the legislature and the courts have had to grapple for

decades. It argues that reform has been piecemeal and context-specific because the

courts and legislature have not adopted a coherent policy toward cohabiting

relationships.

I. INTRODUCTION

Cohabitation is often viewed as a modern social phenomenon, but there

have always been couples who lived together without marrying, either because

they could not, or did not wish to, marry. Yet the fact that it is possible to

find examples of cohabiting couples throughout the twentieth century, or

even in earlier centuries, tells us little about the

extent

of cohabitation at

any particular time. Some commentators suggest that cohabitation began in

the 1960s, as an avant-garde phenomenon (see, e.g., Kiernan 1998), others

that the 1950s should be viewed as the exception, rather than the baseline,

and that there are parallels between the 1930s and the 1960s (McRae 1999).

Given that the first national survey of cohabitants was not carried out until

1976 (Dunnell 1979), it is impossible to provide any accurate figures for the

extent of cohabitation before this date. Current sources—a combination of

anecdotal evidence, small-scale surveys, and the trends in marriage and

extramarital births—suggest that the number of couples cohabiting declined

from the late nineteenth century through the first half of the twentieth

century, remained relatively low in the 1950s and 1960s before rising in

the 1970s and then increasing more swiftly in the 1980s and 1990s to over

one and a half million by the end of the twentieth century (Wimperis

*Address correspondence to Rebecca Probert, School of Law, University of Warwick, Coventry,

West Midlands CV4 7AL, UK. E-mail: Rebecca.Probert@warwick.ac.uk

© Blackwell Publishing Ltd. 2004

14

LAW & POLICY January 2004

1960; Gillis 1985; Kiernan, Land & Lewis 1998; Ermisch & Francesconi

1999; Murphy 2000; Haskey 2001). What should be emphasized is the com-

plexity of the demographic picture: the fact that there is evidence of couples

cohabiting at a certain time and place does not allow us to make confident

assertions about the extent of cohabitation at other periods or in other

locations.

1

The same point could be made about the law’s approach to cohabiting

couples. It is possible to find some very negative views about cohabitants

being expressed in the course of judgments or parliamentary debates (see,

e.g.,

Upfill v Wright

1911 and

Gammans v Ekins

1950). But such statements

should not be viewed out of context, or used as the sole foundation for

assertions about the policy of the law in earlier generations. The aim of this

paper is to take a closer look at the ways in which the law treated cohabiting

couples in different contexts. What emerges is not a consistently negative

approach to cohabiting relationships, but a complicated series of reactions

to different problems, with policy being shaped by the context rather than

by any overarching design. This is an area that almost defies theoretical

analysis, as such an analysis might obscure the contradictions within the

law and the pragmatic and politic considerations that infused the reform

process.

At a time when options for reform are being debated, it is important to

have an understanding of what has gone before, partly so that earlier

mistakes can be avoided, but perhaps also to reassure modern policymakers

that there are precedents for reform. This article will focus on the occasions

on which the legislature has considered the rights of cohabitants. For this

reason, it is confined to the twentieth century, because it is only in the last

hundred years or so that the legislature has really begun to grapple with

the issue of cohabitation. It will also deal solely with the law of England

and Wales, excluding consideration of Scotland’s different legal system or

the different cultural factors that prevail in Northern Ireland. There is not

sufficient space to examine the changes to marriage that have occurred over

the century, some of which have made marriage more like cohabitation,

others of which have conferred more extensive rights on married couples.

Nor is it possible to do justice to the shift away from marriage to parenthood

as the key concept around which rights and responsibilities are organized

within family law (Douglas 2000), although mention will be made of these

developments insofar as they affected cohabitants. Furthermore, given that

the aim of this article is to capture the ambiguities and complexities of the law

over the twentieth century, same-sex couples will not be considered because,

before the decriminalization of private homosexual behavior in 1967, there

was little doubt about the law’s approach to such relationships.

A systematic review of the caselaw is also beyond the confines of this article,

although a number of key cases will be discussed in order to highlight the

differences promoted within the law at any one time and to challenge common

perceptions of the law.