A vision for family justice: provision of basic rights for cohabiting couples upon relationship breakdown - Family Law Partners

A vision for family justice: provision of basic rights for cohabiting couples upon relationship breakdown

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The marriage rate in the UK is now the lowest since records began. Many couples are instead living together without getting married or entering into a civil partnership.

Cohabitants are the fastest growing family type, with approximately 3.6 million partners cohabiting in the UK with more than half of children in England and Wales now born to unmarried/non civil partnered parents.

However, currently cohabitants have very few legal rights if their relationship comes to an end. Many are still being caught out by the ‘common law marriage’ myth, where they believe after a certain amount of time living together they have legal rights similar to married couples, when in fact no such protection exists.

It is really important to understand that merely living together does not create legal entitlements like marriage or a civil partnership. Worryingly research has shown that 46% of the population in England and Wales think unmarried couples that are living together have the same legal rights as those that are married.

A couple may have lived together for many years, have children together and/or one of them may have given up a career to support the family. Yet if they are not married or in a civil partnership as the law currently stands they may not have a share in the family home nor any entitlement to other financial provision from the other if they separate.

The lack of awareness and understanding of the law for cohabitants coupled together with the lack of legal protection and the growing number of families being impacted makes the need for legal reform imperative.

Let’s look at hypothetical example of Taylor and Jamie. They have lived together as a couple for 15 years. They have 2 children together. They live in a house owned in Taylor’s sole name. Taylor works full time. Jamie gave up a successful career to look after the children and support Taylor’s career. If they separate and they are married/civil partners their home and other assets would be divided in accordance with the law by what is fair looking at the whole circumstances of their case, having regard to the financial needs of Taylor, Jamie and their children. That would not be the case though if they separate and are not married/civil partners, in those circumstances they would have to navigate the complex laws governing property, trusts and child support. These laws do not look at fairness and needs and it could result in Jamie having no entitlement to a share of the family home and being left in a very vulnerable financial position which in turn impacts the children.

Academics and practitioners working in family law have long called for reform of the law so there is a fairer and more coherent system in place to help cohabiting couples in the event they split up.

A comprehensive reform proposal was produced by the Law Commission in 2007, but the government announced that it was not going to be taking the recommendations forward during that parliamentary term. Last year the Women and Equalities Committee released a report calling for the introduction of remedies for cohabitants who have lived together for a specified period of time or have a child together, but the government again ruled out dealing with any reforms for the time being.

Given the research and far reaching impact of the current laws in this area why is there such a resistance to reform?

The undermining of marriage – This is one reason often stated as a reason not to reform the law. However, the proposals for reforms to date when looked at don’t appear to undermine marriage in anyway. The suggested reforms do not call for cohabitants to be treated the same as married people/civil partners. Some countries, such as New Zealand and Australia, do treat cohabitants and married couples equally once they have lived together for a period of time or have had a child together. The reforms proposed here for England and Wales though are not about extinguishing the difference between cohabiting and married people/civil partners but are just about creating a basic legal safety net for cohabiting couples. We can’t ignore the fact that the reality is more and more couples for whatever reason are choosing not to get married or enter into a civil partnership, the law has to keep up with modern times to ensure everyone is protected.

Imposing rights on couples who do not want them – This is another reason put forward to oppose reform. Of course, some couples choose cohabitation because they do not want to the legal obligations of marriage/a civil partnership and couples should have choice. The reforms being suggested though would provide for choice as cohabiting couples would be able to opt out of legal protections, so they would be able to exercise and preserve their autonomy.

The complexity of implementing a new system – Those opposed to reforms feel it would be too complicated to implement, for instance how would you define cohabitating and who would qualify for protection under a new system? Couldn’t this however be addressed in careful and clear drafting and looking at how other countries where cohabitation protections already exist deal with matters? In countries that operate legal frameworks for cohabitants it seems that the law is only be used by couples who were in lengthy, committed relationships with children.

Review of divorce law – The government have previously ruled out looking at better legal protections for cohabiting couples until existing reviews on divorce have concluded. This could take many years though. Is there really any reason why reviewing divorce law should prevent the government from pursuing a review of law regarding cohabitants now? Aren’t they separate issues? As mentioned above cohabiting couples are the fastest growing family type therefore many consider it untenable for reforms for this family type to be put on hold until divorce laws are reviewed.

Cohabitation reform could be back on the political agenda. The Shadow Attorney General, Emily Thornberry MP, stated at the Labour Party Conference in October that a Labour government would reform the law for cohabiting couples.

Resolution has been arguing for many years for reform and hopes all political parties will commit to reforming the law in this area to help prevent millions of couples being put at significant financial risk. These reforms are an important part of Resolution’s Vision for Family Justice, which are changes Resolution suggest are needed to family justice in order to better serve separating couples and their children.

For now, pending any change in the law it is often advisable for couples who are living together to enter into a declaration of trust to govern their interests in any property and/or get a cohabitation agreement in place to deal with the broader financial and practical aspects to the relationship. A cohabitation agreement helps to provide certainty and helps ensure the couple entering into the relationship are doing so with their eyes open and with a clear understanding of what the financial arrangements are intended to be during the relationship and what will take place in the event that the relationship doesn’t work out.

If you are not married/in a civil partnership and are living together with your partner or are intending to live together and want to seek legal advice about your circumstances, please do not hesitate to contact us.

To keep up to date with Resolution’s campaign for change you can find details on their website or follow them on twitter/X at @ResFamilyLaw.

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