Marilyn Stowe: We’re no longer wedded to the ideal of marriage

These days, social attitudes couldn’t have moved on any further. Only this month, welfare Minister Lord Freud spoke out about the “major structural changes” in society which lead couples away from marriage and towards cohabitation. He called for marriage to be “put back into its rightful place”.

The truth is that many modern couples see no reason to rush down the aisle. They are wary of the marriage breaking down and the financial implications that go with it. Statistics show that cohabitation is the fastest growing family type in the UK.

Let’s face it, living together is easy – you just pool your income and set up home without any legal ties. It’s a lot simpler and cheaper than entering into a legally binding relationship. Marriage used to provide a woman with financial security and enable her to give her children a future, but today we have careers and are doing well on our own. We can also have kids without the social stigma of being an unmarried mum.

There are many women, myself included, who remember the days when marriage used to be a good investment for a man. His wife would cook his meals, clean the house, do the shopping, produce all his children and look after them too. If his marriage failed, he would have to pay relatively little. It was a win-win. Women rarely pushed for divorce, not because they revered the institution of marriage, but because they couldn’t afford to leave.

When I founded my practice in Leeds in the 1980s, female clients who came to me were in truly desperate situations. Maintenance payments were small and hard-won, while matrimonial property division did not favour the wife. The lowest point surely was the case of Dart v Dart in 1996, when the wife was awarded less than one-fortieth of a £400m fortune – and was also made to pay her husband’s costs.

Today, if a marriage breaks down, a “poor” husband can stand to lose most of his capital and up to half his income. A rich husband now has the “equal sharing principle” to contend with. He stands to lose millions to a wife who has never worked, but instead stayed at home and raised the children. A role that was conventional 50 years ago, such a woman is now branded a “gold digger”.

In my experience, breadwinners – most of whom are men – abhor these new rules. It is no coincidence that as the marriage rate declines, cohabitation, which comes without the legal strings, is soaring in popularity. I believe many are avoiding marriage because of the sharing principle, which dictates that if the marriage ends, the wealthier partner (often the man) should split their assets equally.

And how ironic that marriage is regarded as old-fashioned, when it is currently cohabitation, the supposedly modern alternative, which harks back to an earlier age. There is no sharing and no reasonable needs to be met if a long-term relationship breaks down.

Because of the current state of our law, the wealthier party can walk away scot free from a cohabiting relationship, often leaving mother and children with little or nothing. It’s a no-brainer, isn’t it? Marriage, a patriarchal institution, no longer favours men and has slowly but surely been rendered void of its value and significance, while cohabitation remains unregulated by law.

There have been moves to restore the institution of marriage to its original status, at least in part. The Law Commission has put forward a draft Bill for prenuptial agreements to be made legally binding, so divorcing couples have more autonomy and control over the financial outcome of a separation. But I’m not sure a prenup is the answer. Lawyers pitted against them will keep getting cleverer and cleverer. It’s their job.

Surely it’s better to have the freedom to walk away, than to have to test the validity of a prenup? I’ve seen cases where just the mention of a prenup has distanced couples even before the nuptials.

Don’t get me wrong, I’m an avid supporter of the institution of marriage, having been married for 30 years.

Marriage is a partnership and it’s regulated by laws designed to protect the interests of the “weaker” party, even when it breaks down. However, these same “benefits” make it less than desirable for the wealthy breadwinners in the relationship. And we can’t overlook the fact that nearly half, 42 per cent, of marriages end up in divorce, so the odds for a wealthy party being “taken to the cleaners” aren’t that low at all. Sad as it may be, I think we have finally fallen out of love with marriage.

Marilyn Stowe is Senior Partner at Stowe Family Law.