Cohabitation law reform – an update

This year has already seen the government move forward with some important reforms of family law, including publishing it's draft Domestic Abuse and no fault divorce legislation and supporting Tim Loughton's Bill to extend civil partnerships to opposite sex couples which gained Royal Assent March.

Modernising the law relating to cohabitants must be the next item on the government's family law reform agenda. The option to enter into a civil partnership, is not an answer for the vast majority of cohabiting couples who have not married or otherwise formalised their relationship for a whole host of reasons including the drift into cohabitation and economically intertwined relationship, refusal of one person to formalise the relationship or those who already believe they have rights from a common law marriage.

Some contemporary critics of marriage question why Western governments continue to support and promote it when it has such a high failure rate. Anthropologist Lionel Tiger wrote in 1980 that "it is astonishing that, under the circumstances, marriage is still legally allowed. If nearly half of anything else had ended so disastrously, the government would surely ban it immediately. If half the Taco restaurants caused dysentery, if the half the people learning karate broke their palms, if only 6% of people that went on a roller coaster ride damaged their inner ears the public would be clamouring for action. Yet the most intimate of disasters….happens over and over again".

The state of the law in relation to cohabitants is out of step with public perceptions and sympathies. In January this year NatCen published findings from the British Social Attitudes Survey showing 46% of the public still mistakenly believe common law marriage protects cohabitees. Worryingly 48% of those actually in cohabiting relationships believe this to be true and 55% of those in households with children, who would be the most vulnerable in the event of such a relationship breaking down, do so too. The public sympathy to the case brought by the cohabiting "widow" Siobhan McLaughlin to the Supreme Court last year showed that the public were largely astounded at the different treatment of those who had lived together but had not married, which may suggest that the public were not fully aware of the lack of rights that cohabiting couples have both in death and on separation they would be a clamouring for action.

The hardship that is so often caused to the economically weaker party, and/ or party that has taken on the majority of the caring responsibilities during the cohabitant relationship if that relationship breaks down will undoubtedly cause feelings of resentment, anger and considerable anxiety about a less prosperous future. All of these emotions will feed into the dynamics of the separating parties and if there are children then it is likely that they will be adversely affected as a result.

The rationale of the Supreme Court in the Siobhan McLaughlin case, in holding that the refusal to pay bereavement benefits to a widow of a cohabiting partner for the benefit of their children was that the responsibilities towards the children are the same whether or not they are married or in a civil partnership and therefore those children should not ne treated differently. The same is surely true of the children of cohabiting parents when their parents separate. When the courts are considering what financial orders to make on divorce under Section 25 of the Matrimonial Clauses Act 1973 the court is required to give first priority in the interests of any dependant minor children. That is not the case when the court is considering proceedings under the Trusts of Land and Appointment of Trustees Act 1996. The economically weaker party may also bring an application under the Children Act 1989 Schedule 1, but there is still different and preferential treatment of the children of those who are married or in a civil partnership as compared to the children of cohabiting parents.

In any event, applications under the Children Act 1989 Schedule 1 do not do anything to redress the economic disadvantage often experienced by those in the relationship who have undertaken the majority of caring responsibilities which often persist long in to the future and after children have grown up and left home.

So what is the prospect of modernisation of the law in this area? Lord Marks' Cohabitation Rights Bill had it's second reading in the House of Lords on the 15 March 2019. The Bill makes out what Lord Marks describes as a modest proposals, not akin to the financial relief available on divorce, to enable the courts in appropriate circumstances to adjust the financial position of qualifying cohabitants on relationship breakdown so as to spread the financial consequences, benefits and costs fairly between them. Lord Marks says that about 40% of cohabiting couples have children together while cohabiting and that his Bill is aimed not just at those couples but at their children who stand to suffer from their parents breaking up.

The Bill defines cohabitants as a couple, whether same sex or opposite sex, who either have a child together or have lived together as a couple for 3 years. The Bill allows couples to choose to opt out of the financial settlement provisions therefore preserving freedom of choice. Cohabitation agreements or deeds of trust would be honoured by the agreement so that it would not be a compulsory scheme. There would be a two year time limit bringing a claim following separation. In terms of the financial settlement provisions, the starting point is for the applicant to show that he or she has made qualifying contributions whether financial or in work care or kind to the parties share of family lives. If as a result of such contribution the party has derived and retained a financial benefit, actual or potential, whether in capital, income or earning capacity, or the applicant has suffered or would in the future suffer an economic disadvantage, the court could intervene to award a financial settlement if it considered it just and equitable to do so having regard to a number of discretionary factors. Resolution will be liaising with Lord Marks about laying the Bill again in the next parliamentary session.

Is it time that the Law Commission looked at this issue again? It is 12 years ago since the Commission issued it's report recommending the financial provision measures contained in Lord Marks Bill, and then again in December 2011 it recommended the Bill's intestacy and related provisions. During that time our near neighbours in Scotland and Ireland have introduced remedies for cohabitants which it would be useful if the Law Commission were to review and perhaps provide an addendum to their 2007 report looking at the experiences of other jurisdictions.

Is there scope for any amendment to Schedule 1 of the Children Act 1989? This could enable to the court to make orders for the long benefit of applicants in their own right, rather only for the benefit of children with any financial provision usually returning to the more economically powerful partner when the child reaches a majority. That might be an easier step to persuade Parliament to take rather than introducing a whole new system of rights and responsibilities. However, it would of course not assist those couples who do not have children.

In the meantime, whilst we wait patiently to see the no fault divorce legislation finally enacted and for the Brexit conundrum to be resolved, the Resolution Cohabitation Committee will continue to push the agenda for law reform and to raise awareness amongst the public of the lack of legal rights and remedies for cohabitants on a separation and the steps they can take to strengthen their position, such as entering into a cohabitation agreement.

This article was published in Resolution The Review magazine, Issue 200, May/June 2019.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.