Cohabitation law reform; what form should it take?

The current state of the law relating to cohabiting couples in England Wales is desperately in need of serious reform. That reform now seems likely to happen in the foreseeable future, but what form should it take?

The current law is wholly inadequate. Many people mistakenly believe that if an unmarried couple cohabit, they will eventually become a common law husband and wife, giving them the same or similar rights as a married couple. In fact, there is no such thing in England and Wales as a common law marriage; they have not existed for hundreds of years, if they ever existed at all.

This misconception is worryingly widespread; I was recently told by an unmarried client that she had attempted relationship counselling and had been told by the counsellor that if the couple could not save their relationship, they would end up in court and that the judge would split their assets equally between them. This was dreadfully incorrect. In the circumstances of that case, the other party was not entitled to a penny. The parties had no jointly owned property and there was no arguable claim by the other party that he had a beneficial interest in any of my client’s assets.

In other cases, people have told me that they are civil partners, only for me to discover after a few probing questions that in fact they are nothing of the kind; they were simply cohabiting. Becoming a civil partner involves undergoing a formal ceremony in front of a registrar of births, deaths and marriages. Legally speaking a civil partnership is virtually identical to a marriage. It is not formed simply by living together.

In a case where a couple is divorcing or dissolving a civil partnership, the Family Court has enormous discretion about how it can divide their income and assets in such a way as achieves fairness and meets their needs, and the needs of their children. In an unmarried case, the County Court or High Court’s discretion is far more constrained. The outcomes often do not meet people’s needs nor do they always achieve fairness.

Most family lawyers have argued for years that reform is needed. Therefore, when Emily Thornberry, the labour shadow attorney-general, announced in October 2023 that a Labour government would reform the law and introduce more rights for cohabitants, we all sat up and took notice.

It remains to be seen precisely what Labour is proposing should happen. At the time of writing, there is a General Election campaign underway. I make no comment on the merits or demerits of the Conservative party’s policies, but there appears to be little likelihood that it will support cohabitation reform or introduce it if it wins (and it seems highly unlikely that they will win). It is regrettable in my view that the Conservatives, who showed great wisdom in introducing gay marriage, heterosexual civil partnerships and no-fault divorce, now feel unable to reform the law to improve the positions for the huge and increasing number of couples who cohabit. There are 3.6 million cohabiting couples in the UK and that figure is likely to continue rising.

But what form should a new cohabitation law take? There are two alternatives; the difference model and the de facto (also known as assimilation) model.

The difference model results in the cohabitants gaining improved rights, but they would not the same rights as a couple who are married or in a civil partnership. The rights would be different. This is the type of system that exists in Scotland and the Republic of Ireland. The Law Commission recommended the introduction of a difference model in England and Wales in 2007, but this was not acted on by the then Labour government, nor by the conservative Liberal Democrat coalition government formed in 2010.

The de facto model means that cohabitants would have the same rights as people who are married or in a civil partnership. De facto cohabitation laws exist in Australia and New Zealand.

My initial reaction to the possibility of a de facto cohabitation law was that giving unmarried couples the same rights as married couples and civil partners might serve to undermine the institution of marriage.

I am normally very scathing of arguments that changes to family law will undermine marriage. It simply isn’t borne out by the evidence. There tends to be a kneejerk reaction, particularly amongst right-wing Conservative backbenchers, that changes must undermine marriage. I recall a great deal of ignorant tripe being spouted by these types of politician during the debate on the no-fault divorce bill in 2020.

However, if the rights given to cohabitants are exactly the same, then logically, it will weaken marriage as an institution, won’t it?

Well, apparently not. There has been research undertaken which showed that despite de facto cohabitation laws being introduced in Australia and New Zealand, marriage rates there have not been affected.

It appears that people decide to marry for reasons that perhaps do not include the greater rights that they obtain as a result. Shocking as this may be for us lawyers to realise, but it appears that people marry because they love each other and want to live together for the rest of their lives. They don’t wed because it enhances their rights in the event that it all goes pear-shaped.

There are advantages to giving cohabitants the same rights as people in marriages and civil partnerships. The most obvious one is that it will be straightforward to simply apply the existing law relating to finances to them. There will be no need to introduce a different way of dividing their income and assets between them. We will be able to rely on the vast amount of existing case law in divorces and civil partnerships, refined over the years, when resolving cases involving cohabiting couples. That is more likely to ensure that the outcomes are fair and meet their needs, and the needs of their children.

There will still be some potential for uncertainty. Exactly how long must a couple have lived together before they gain these rights? For example, the law in Ireland only gives greater rights to cohabitants after they have cohabited for five years (or after two years if they have had a child).

I can foresee cases where the parties disagree about whether they lived together for long enough. Family lawyers will be very used to their clients being very vague about dates; many people do not know exactly when they began to cohabit or even when they separated. Such things can take place gradually and it is sometimes difficult to identify the precise date upon which a couple began living together or separated. In my experience, cohabitation sometimes begins with one partner keeping a toothbrush at the other’s home, and slowly but surely the couple’s lives become entwined to the extent that they are living together, but they would struggle to say exactly when it began.

The Scottish law states that claims must be brought within 1 years of the date upon which the couple separated. I am not sure why there should be a limitation period; there is no such thing in divorces and civil partnerships; why should there be one in cohabitation cases?

There may be an opt out option, as there is in Australia (and which was also recommended by the Law Commission here in 2007). Cohabitants can enter into a cohabitation agreement, with the benefit of legal advice, in which they can decide to opt out of the cohabitation law.

For couples who did not qualify under the new law, e.g. they have not lived together for long enough, they might still have to rely on the existing inadequate law to resolve property disputes or to try to claim a share of the other’s property.

Therefore, I have now changed my mind. I initially felt that a difference model would be more appropriate, but in the absence of evidence that fewer people will marry, my view is now that there should be a de facto cohabitation law. Cohabitants should have the same rights as married couples.

8 June 2024

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