Partner Claire Clarke, in our Family Law team, discusses the need to reform the law around cohabiting couples, those who are in a relationship and live together but are not married to each other or in a civil partnership.
The way we were: historically there was respectable marriage, which conferred financial dependence and security on women. Outside a world of defiance of convention and no rights except minimal support for the child.
The way we are: cohabitation has lost its stigma and become a parallel life choice. Cohabitants are the fastest growing family type in the UK with some 3.6 million cohabiting couples - an increase of 23% over the past decade. Further in 2021, for the first time, more than half of the children born in England and Wales were born to mothers who were not married or in a civil partnership with their fathers.
Under the current law, cohabitees have limited rights compared to those who are married. When married couples divorce, they have significant legal protection within the family law framework. The parties’ and children’s needs are prioritised and the principles of equality and fairness are applied. If a spouse were to pass away, then the living spouse has automatic rights to inheritance, pension and insurance, among others.
For cohabiting couples, these principles do not apply and, in contrast to married couples, there is no statutory framework to empower the courts to divide the assets of cohabiting couples. This leaves the financially weaker party in a vulnerable position in the event of a break-up often this being women who have focussed less on their career in order to look after children. Unmarried parents can seek child maintenance through the Child Maintenance Service for children under the age of 16 or under 20 if they are still in full-time education. However cohabiting couples cannot rely on the family law framework and have no financial responsibility to one another on separation. If one party wishes to make a financial claim against the other they may only do so under property law (Trusts of Land and Appointment of Trustees Act 1996) or under Schedule 1 of the Children Act 1989 if the provision sought is for the benefit of a child.
Our society has changed markedly in the last 20 years - civil partnerships, same sex marriage, a concerted focus on tackling domestic abuse. Reforms thought impossible 50 years ago have taken their natural place on the statute book largely without controversy. And yet the law for cohabitants, designed for another age, still persists despite many proposals for law reform in this area.
One of the arguments often used by opponents of cohabitation law reform is that people can ‘choose to marry’ if they want to receive the protection of marriage. On this basis we should respect people’s autonomy and therefore if there is to be any law reform the regime should be ‘opt in’; ie it should be necessary to register the relationship or complete some other formality in order to receive the protection of the legislation.
Why should it though be presumed that people who have chosen to live together have made a negative choice not to marry? Why not attach legal consequences to the positive choice that many people make to live together? Those who want could exercise an autonomous choice to ‘opt out’ and have a pre-cohabitation agreement or a cohabitation agreement.
Notably the UK Parliament’s Women and Equalities Select Committee’s November 2022 report ‘The rights of cohabiting partners’ echoed the point made in the Law Commission’s 2007 recommendations in that, an ‘opt-in’ regime would protect those who need it the least: the better educated, the wealthier and the more economically powerful. The economically weaker parties in relationships, who are more likely to suffer a relationship-generated disadvantage (for the most part, women) need the protection of an ‘opt-out’ regime.
The chair of the committee, Caroline Nokes made clear the reality of modern relationships in that many of us choose - for a vast number of reasons - not to get married even when in a committed long-term relationship and commented ‘it is high time that the government recognised the shift in social norms, which has been taking place for well over 30 years. The law has been left decades behind as far as cohabitation is concerned and this is leaving financially vulnerable individuals in precarious situations upon relationship breakdown or the death of a partner… Deciding not to marry is a valid choice and not one which should be penalised in law…’.
Disappointingly, the government rejected the committee’s recommendation, making clear that a review of financial remedies law must remain the focus and the government’s response to the Law Commission’s weddings project be released before changes to the law on cohabitation can be considered.
As the number of people cohabiting continues to rise, the current lack of legal remedies will continue to disproportionately disadvantage the economically weaker party often women who have had children in their cohabiting relationship. Notably, other countries such as Australia and Canada, and closer to home Scotland, already recognise cohabiting couple’s relationships and provide legal protection and helpful insights have been shared as to what works, why we need reform in this country and how we might achieve it. Much work has already therefore been done by the Law Commission to suggest a framework for achieving fairness and justice and all that is now required is for this to be brought into law.
Law Reform takes time. Indeed, it is worth remembering that it took 34 years of tireless campaigning, and a judgment in the Supreme Court, to achieve ‘no fault’ divorce in England and Wales (Owens v Owens  UKSC 41,  All ER (D) 144 (Jul)). Little surprise therefore that there was a large collective sigh of relief among family law professionals when the Divorce, Dissolution and Separation Act 2020 finally came into force on 6 April 2022. Similarly, long overdue is reform on the law for cohabitants and this is the next pressing hurdle to overcome.
So, what is being done? Continued pressure is being placed on the government to bring the law in step with how many couples are choosing to live their lives. Resolution is actively campaigning for cohabiting couples to have at least basic rights on relationship breakdown or death of their partner and to raise awareness so cohabiting couples can take measures to protect themselves.
In perfect timing therefore is Resolution’s Awareness Week (27 November-1 December), providing a great opportunity for Resolution to a) launch a vision for family justice focussing on the need for reform of the rights of unmarried couples and b) set our stall and tell policy makers the changes that will help families resolve matters more constructively.
There is undoubtedly fertile soil for a fresh regime, and with much work having already been done, perseverance in campaigning and a general election in the not-too-distant future there remains hope that our leaders will commit to reform and that a triumph, akin to that with the introduction of ‘no fault’ divorce will only be a matter of time.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.