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Research Handbook on Marriage, Cohabitation and the Law

9781802202649 Edward Elgar Publishing

Edited by Rebecca Probert, Professor of Law, Law School, University of Exeter and Sharon Thompson, Reader in Law, School of Law and Politics, Cardiff University, UK

Publication Date: May 2024 ISBN: 978 1 80220 264 9 Extent: c 486 pp

This insightful Research Handbook provides a global perspective on key legal debates surrounding marriage and cohabitation. Bringing together an impressive array of established and emerging scholars, it adopts a comparative approach to analyse cross-jurisdictional trends and divergences in relationship recognition and family formation.

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Critical Acclaim

Contributors

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This insightful Research Handbook provides an international perspective on the key legal debates surrounding marriage and cohabitation. Drawing on the expertise of established and emerging scholars, a comparative approach is used to analyse cross-jurisdictional trends and divergences in relationship recognition and family formation.

Chapter authors explore the contested meanings and changing boundaries of marriage, the scope and role of alternative opt-in regimes, and the justification for conferring rights and responsibilities based on intimate relationships. Responding to the rising numbers of couples cohabiting without formalising their relationship, contributors examine how legal systems should respond to these changing patterns of relationships, and what it means to be a ‘family’ in different societies. Ultimately, they argue against imposing a particular view of what marriage should be, showcasing the importance of a diverse range of views and perspectives on the topic.

The Research Handbook on Marriage, Cohabitation and the Law presents a comprehensive overview of the field, and will be an invaluable resource for students and scholars of family law, law and gender, and law and society. It will also be an essential guide for policy-makers and legal practitioners seeking insights into the processes of family formation across jurisdictions.

Critical Acclaim

‘This exciting, impressive array of contributions ranging over time and across jurisdictions can help us understand how the legal institution of marriage is evolving with increasing levels of cohabitation from marriage as a communal interdependent relationship (so important in caring for the vulnerable) into the union of two autonomous individuals!’
– Mavis Maclean, University of Oxford, UK

Contributors

Contributors include: Rosemary Auchmuty, Elsje Bonthuys, Alan Brown, Gillian Douglas, Ellen Forsyth, Cameron Giles, Ellen Gordon-Bouvier, Kathy Griffiths, Andy Hayward, Anna Heenan, Daniel J Hill, Jennifer Koshan, Bernice Kuang, Saskia Lettmaier, Alexander Maine, Caroline Mirza, Zainab Batul Naqvi, Patrick S. Nash, Zanele Nyoni-Wood, Rebecca Probert, Wilfried Rault, Jens M Scherpe, Tone Sverdrup, Frederik Swennen, Naema Tahir, Sharon Thompson, Arthur van Coller

Contents

Contents:

Introduction: Marriage and cohabitation – Global debates, challenges, and perspectives 1
Sharon Thompson and Rebecca Probert

PART I WHY MARRY? THE MEANING OF MODERN MARRIAGE
1 What is the purpose of marriage in contemporary legal regulation? 8
Alan Brown
2 Separating marriage from the state 22
Daniel J. Hill
3 The feminist case against marriage 37
Rosemary Auchmuty

PART II THE VARIED FORMS OF ENTRY INTO MARRIAGE
4 Marriage formation in Europe from the late middle ages until the late
eighteenth century 57
Saskia Lettmaier
5 Universal civil marriage: A blueprint for the future or an idea whose
time has passed? 72
Rebecca Probert
6 The fractured landscape of South African marriage and family law:
Future directions 86
Elsje Bonthuys
7 Marriage, the law and pluralism in Ghana 101
Augustina Akoto

PART III THE CHANGING BOUNDARIES OF MARRIAGE
8 The (non)recognition of same-sex marriage in South Africa, Nigeria
and Uganda 117
Zanele Nyoni-Wood
9 Polygamy in English marriage law – critical postcolonial perspectives 132
Zainab Batul Naqvi
10 Prohibiting polygamy, yet permitting plurality? 147
Ellen Forsyth, Caroline Mirza and Rebecca Probert
11 Child marriage: The denial of autonomy by conferring the status of
marriage on a child 168
Arthur van Coller
12 Exploring arranged marriage: Breaking biased frames and uncovering
a much misunderstood marital institution 184
Naema Tahir
13 Comparative consanguinity law: A global study of cousin marriage regulations 201
Patrick S. Nash

PART IV FORMAL ALTERNATIVES TO MARRIAGE
14 Why registered partnerships? A comparative overview 215
Jens M. Scherpe
15 Mixed-sex civil partnerships: A blank canvas or painting by numbers? 226
Andy Hayward
16 Twenty years of PACS: The specificities of the French civil union 244
Wilfried Rault
17 Un-coupling family law revisited: Non-conjugal adult unions in family law 262
Frederik Swennen

PART V COHABITATION AND THE LEGAL REGULATION OF
UNFORMALISED RELATIONSHIPS
18 Demographic perspectives on cohabitation 282
Brienna Perelli-Harris and Bernice Kuang
19 Regulation of cohabitation in the Nordic countries 299
Tone Sverdrup
20 Cohabitation law reform in England and Wales: The case for reform
and challenges of definition 307
Kathy Griffiths
21 Is cohabitation an obligation-free zone? 322
Gillian Douglas
22 Cohabitation contracts and gender equality 337
Sharon Thompson

PART VI THE CONSEQUENCES OF MARRIAGE AND COHABITATION
23 Consummating in court 355
Alexander Maine
24 Complex relationships: Marriage and relationship status, procreation
and criminal law 369
Cameron Giles
25 Unhappy families and lying wives: Myths and stereotypes about
intimate partner violence 385
Jennifer Koshan
26 Prenuptial agreements in comparative perspective 399
Sharon Thompson
27 The meaning of marriage and approaches to the division of assets in
Sweden, the Netherlands and England and Wales 415
Anna Heenan
28 Relational vulnerability: A theory of family, unpaid work, and the state 429
Ellen Gordon-Bouvier