Is it time at last for rights to be given to people who cohabit?

In his latest article, family law blogger John Bolch examines cohabitation, and the issues around cohabitants, families and relationship breakdown and questions whether we will ever see reform here in the UK.

For the last thirty or so years family lawyers, or at least most of them, have harboured two great wishes for law reform. The first of those wishes has recently come true. Is the second wish soon to be granted as well?

The first wish was, of course, for the introduction of no-fault divorce. It took a long time to come to fruition, including a false start way back in the 90s, but in April this year it finally happened, and we could at last say goodbye to the ‘blame game’.

The second wish also had something of a false start, back in 2007, but is perhaps now once again on the table: financial rights for cohabitants on relationship breakdown.

No status, sorry!

What? I hear you ask. Surely, cohabitants enter into a common law marriage, and so have the same rights as married couples?

Well, no.

Sorry to disappoint, but there is no such thing as a common law marriage. No matter how long a cohabiting couple live together, they will never gain the status of a married couple.

OK, but why should people who decide not to marry have the same rights as married couples when their relationship breaks down?

Actually, nobody is saying that they should. All that is being proposed is that they have certain limited rights, enough to ensure that they do not suffer serious financial hardship as a result of the breakdown of the relationship.

A false start: the Law Commission’s proposals

In 2005 the government asked the Law Commission “to consider the law as it applies to cohabiting couples on the termination of their relationship by separation or by death”, placing special emphasis on “reducing potential financial hardship suffered by cohabitants or their children in these circumstances.”

Following a consultation the Commission reported in 2007, recommending reform of the law, by introducing a scheme that would enable certain cohabitants to obtain financial relief in the event of the breakdown of their relationship.

The scheme had three key features:

1. That the couple had to satisfy certain eligibility requirements. These were that they had had a child together, or had lived together for a specified number of years. The Commission did not make a specific recommendation as to what the minimum duration requirement should be, but suggested that a period of between two and five years would be appropriate.
   
2. That the couple could agree to opt out of the scheme, by entering into a written opt-out agreement. The scheme would then not apply to them, unless enforcement of the agreement would be manifestly unfair, given the circumstances when the agreement was made, or any unforeseen change of circumstance which had arisen since then.
   
3. That the party applying for financial relief had made qualifying contributions to the relationship, giving rise to certain enduring consequences at the point of separation. This is what really made the scheme different from the sort of financial relief that a party to a marriage could apply for. At the end of a marriage relief can be based simply on the basis of a party’s needs, but under the scheme the applicant would have to show that the respondent retained a benefit, or that the applicant had a continuing economic disadvantage, as a result of contributions made to the relationship. The value of any award would depend on the extent of the retained benefit or continuing economic disadvantage.

It all sounded so promising

However, in 2011 the government announced that it would not be taking up the Law Commission’s recommendations during the 2010-2015 parliamentary term, effectively shelving the recommendations. There has been no further movement from Westminster since.

Until now.

MPs demand reform

On the 4^th August the cross-party House of Commons Women and Equalities Committee published a report into the rights of cohabiting partners.

The report pointed out that in the 25 years since 1996, the number of couples living together as cohabitants has more than doubled to 3.6 million, representing around 1 in 5 couples living together in the UK today. Despite this, a lack of legal protections means that, upon relationship breakdown, the financially weaker partner has no automatic rights to the family home.

This situation, commented the Chair of the Committee Caroline Nokes MP, leaves financially vulnerable individuals in precarious situations upon relationship breakdown.

Myth busting and misconceptions

One of the largest issues found by the report was the common misconception that cohabiting couples automatically gain rights equal to a marriage or civil partnership - the so-called ‘common law marriage myth’, referred to above. This erroneous belief, said the report, can have ‘significant consequences’, with many falsely believing they have legal protections which turn out to be non-existent.

In the light of these findings the report recommends that the government should implement the opt-out cohabitation scheme, as proposed by the Law Commission. It also recommends that the government urgently launch a public information campaign to highlight the legal distinctions between marriage, civil partnership, and choosing to live as cohabiting partners.

Urgency would be good!

The number of couples now cohabiting in this country surely demonstrates that deciding not to marry is a valid choice, and one that should not be penalised in law. Hopefully the government will find time in its busy schedule to recognise the shift that has occurred in our society by implementing these much-needed measures, and providing cohabiting couples with the legal protections they need.

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