Jack Rundall
The Labour Party’s manifesto published in the run up to the general election of July 2024 included a commitment to reform the law which applies to cohabiting couples. This was welcome news to many groups representing family lawyers and campaigners for women’s rights. Unfortunately, no details have yet been published of the new law, but the government’s commitment has at least shifted the debate from whether reform is necessary to what form it should take. This article sets out the two most likely options.
Why does the law surrounding cohabitation need to be reformed?
The current law is a mess. There is no specific statute which deals solely with the rights and obligations of cohabitants, meaning litigants are forced to turn to rely on a mixture of trust law and, where appropriate, Schedule 1 to the Children Act 1989 which provides, in certain circumstances, protection for unmarried parents. The result is a complex and inconsistently applied system which often produces starkly unfair results. Take the theoretical example of a couple in their fifties who have lived together for twenty-five years and have two teenage children. If their family home is registered in one party’s sole name, and if there is no evidence of any agreement or discussion between them to the effect that the other would acquire a beneficial interest in that property, then only avenue through which the non-owning party might obtain financial support from their former cohabitant is often Schedule 1 to the Children Act. However, this limits provision, save in exceptional circumstances, to the period during which children are minors. Thus, even if the couple were wealthy and even if the party who does not own the property has made significant financial and non-financial contributions to the relationship, their entitlement to support from their former cohabitant is very often limited to the temporary provision of accommodation, or other financial support, whilst their children are minors (if they have children at all). It is not uncommon for lawyers working in this field to see clients who have given up careers to look after children and who have been in committed, quasi-marital relationships left in very difficult position with little or no provision for their housing or day-to-day needs beyond their children’s minority.
Unsurprisingly, there have long been calls for reform. In their submission to the Women and Equalities Inquiry, Resolution, an organisation which represents family lawyers, commented that their “members encounter many individuals, often female, left unprotected by the current law, even after very long relationships during which they raised the children of the relationship. Of those who responded to our surveys in 2017 and 2019, 63% and 67% respectively said in their experience this is an issue where women lose out more often than men”. The inquiry reported in 2022 and concluded that the current law is “costly, complicated and unfair” with cohabiting couples often finding themselves at a significant disadvantage compared to married couples. This led to Emily Thornberry MP announcing in October 2023 that “for too long, women in cohabiting couples have been left with no rights when those relationships come to an end. If there is no joint property or shared parental dues, a man can leave his partner with nothing”.
What form will the reformed law take?
The first option is to tweak the existing law. Hopefully this can be ruled out given the complexity and unfair outcomes associated with the status quo. That leaves two alternative routes; the first is to introduce a bespoke statutory regime which would apply to qualifying cohabiting couples. The second is to introduce a series of tests or criteria to allow cohabiting couples to unlock the same rights and obligations as married couples. Inevitably there are pros and cons associated with each approach. A bespoke statutory regime might more easily maintain a distinction between marriage and cohabitation, which some may feel more properly recognises the commitment that couples make in deciding to marry and therefore preserves the special status of marriage. Conversely, introducing such a system may take longer (not ideal when the need for reform is urgent) and will require a public awareness campaign and the training of judges. Countries which have introduced bespoke legislation to protect cohabiting couples include Scotland and the Republic of Ireland.
A system of ‘de facto marriages’ where certain cohabiting couples can unlock the remedies available to married couples has the advantage of using the Matrimonial Causes Act 1973 as the basis for financial provision. The 1973 Act is well-known to practitioners and the judiciary and is generally thought to have stood the test of time and to have allowed the law to adapt as society changes. Australia and New Zealand operate similar systems. There would, however, need to be careful consideration of the statutory test which allows cohabitants to access these remedies. Would a ‘marriage-like’ relationship be required? If so, what might that look like? For example, does such a relationship need to have endured for a certain period? Does it need to be sexually intimate? Do the couple in question need to have made certain mutual contributions to their relationship, for example by having children? All these questions need to be carefully though through by our legislators.
Where next?
There does not yet appear to be a consensus of opinion about which approach may work best and it remains to be seen whether organisations like Resolution will campaign for a particular type of provision for unmarried couples or simply continue to push for reform more generally and leave the question of how this should be done to Parliament. The importance of getting this right should not be underestimated. The number of cohabiting households in the United Kingdom increased 144% between 1996 and 2001[1] . Cohabiting unmarried parents now accounting for 18% of all families[2], 60% of whom will split up, compared to 21% of those who married before their child was born[3]. Consequently, the need to ensure that the people in these relationships are adequately protected has grown. If there is a silver lining to the slow pace of reform it is that our lawmakers will now be able to look at the experiences of other jurisdictions to reach a conclusion about which of these approaches will most effectively protect the vulnerable.
[1] https://commonslibrary.parliament.uk/research-briefings/sn03372/#:~:text=England%20and%20Wales.-,Number%20of%20cohabiting%20couples,Law%20Commission%20proposals%20for%20reform
[2] https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2023#:~:text=Download%20this%20chart&text=This%20is%20consistent%20with%20a,have%20contributed%20to%20this%20increase.
[3] https://marriagefoundation.org.uk/research/source-of-family-breakdown/
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