The next big battle: cohabitation law reform

Although civil partnerships for same sex couples were introduced in England and Wales in December 2005, it was not until December 2019 that this form of union was permitted for opposite sex couples. Since then, I have noticed something rather unexpected.

In the past year or so, I have spoke to a number of prospective new clients who have told me that they were in a civil partnership. However, I quickly detected that that could not be the case. For example, in one of the cases the client told me that he had been in a civil partnership with his female partner for about 10 years. As opposite-sex civil partnerships had only been possible for about a year at that time, clearly that could not be correct.

In fact, all they are is cohabitants. Just living together does not create a civil partnership. They may describe each other as “partners”, but they are not “civil partners”. To be in a civil partnership, a couple must have signed a civil partnership document in the presence of a Registrar of Births, Deaths & Marriages and two witnesses.

Most civil partners will do this at a ceremony which bears a striking resemblance to a civil wedding. It can take place at a Register Office (not a “Registry” Office) or at a venue with a licence to hold weddings and civil partnership ceremonies.

Civil partnerships are very, very similar to marriages. There are some very technical differences between the two things; for example, adultery was a “Fact” that could be cited to obtain a divorce, but not dissolution of civil partnerships (until the introduction of no-fault divorce and civil partnership dissolutions in April 2022 when adultery stopped being a “Fact” that could be cited. Where laws differ for wife and husband, both partners are generally treated like the husband would be. Otherwise, the rules for pensions, survivor benefits, annulment and dissolution are very similar.

It is also now possible for civil partners (both same sex and opposite sex) to formally convert their civil partnerships to marriage. This was introduced for same sex civil partners when gay marriage became possible in 2014. As a result, the number of civil partnerships among same-sex couples have rather dwindled.

18,059 same-sex couples entered into civil partnerships between December 2005 and the end of December 2006. This was a quite a high figure compared to subsequent years as many people had been waiting a very long time to be able to form a civil partnership. After this initial surge, the figures became more consistent; there were a further 8,728 taking place in 2007, 7,169 in 2008, 6,281 in 2009, 6,385 in 2010, and 6,795 in 2011.

In contrast, in 2020 (the first year when this was possible), 7,566 opposite-sex civil partnerships were registered in England and Wales. There were only 785 civil partnerships registered for same-sex couples during the same period, presumably because same-sex couples were opting to marry instead.

Whether a couple commits to each other by way of a traditional marriage or in a civil partnership, this is a good thing, not least because if their marriage or civil partnerships breaks down, the law can ensure that any financial dispute between them is resolved in an away that should achieve fairness and meet their needs, and most importantly the needs of any minor children.

However, the position for unmarried cohabitants is very different indeed. The law here is in a desperate need of reform. More and more people cohabit without marrying or forming a civil partnership. There was a 137% increase in cohabitants between 1996 to 2020. The law has not kept pace with this change in society.

Many of these unmarried couples still wrongly believe that they have the status of a common law husband or wife. They assume (if they have given it any thought at all), that in the event that their relationship ends, they will have the same or similar rights as a couple who are divorcing or dissolving a civil partnership. In fact, it is not clear whether common law marriage has ever been legally recognised in this country; if it ever was, it certainly has not been for centuries.

Unmarried couples can therefore be in for a very unpleasant surprise if their relationship ends. If one party is living in a house which is solely owned by the other party, he or she may be entitled to absolutely nothing. They can be required to leave the property on reasonable notice.

It is possible where there are children of the relationship for one parent to make a claim for financial provision for the children under the Children Act 1989, Schedule 1 so that the children’s needs can be met. For example, the court can order the other parent to pay lump sums or it can make a settlement of property order whereby the other party gets to remain living at the house with the children until they children are all 18. It only applies to children of the relationship, not for “step-children” (for want of a better expression).

It may be possible for a non-owner party to bring a civil claim for an order that the property be sold and for a declaration of beneficial interest on the basis that there may be some kind of informal trust in place whereby they gained an interest in the property. Such claims are horrendously complicated and far from guaranteed to succeed.

Even where a property is held in the parties’ joint names, they may find that they are entitled to much less or more than they expect or need, depending upon what the court decides their shared intentions were.

The law is desperately in need of reform in two ways;

Firstly, the law needs to be reformed to provide clarity about what the parties may seek and may expect to recover. This was mooted by the Law Commission about 20 years ago, but the proposed reform was kicked into the long grass by the Labour government at the time.

Secondly, for clients who have no alternative other than to go to court to resolve a dispute of this nature, they need to be allowed to do so in the Family Court. Claims for orders for sale and declarations of beneficial interests under the Trusts of Land and Appointment of Trustees Act 1996 are civil proceedings and therefore take place in the County Court or High Court. The procedure in such cases is not at all suitable for family disputes and it would be much better if the claims could be sought in the Family Court, using the Family Procedure Rules which are far better suited to family cases and are more inclined to result in agreement rather than a trial.

It would also bring to an end the bizarre anomaly that there can be two separate applications underway in these cases; a claim in the County Court for a sale order and a declaration, simultaneously with a financial provision application in the Family Court for a child. Both sets of proceedings take place together, with the same judge presiding over them. It is a procedural nonsense for them to technically be in two totally different courts.

Litigation through the County Court and/or the Family Court should be the parties’ last option. There are many far better ways to resolve these types of disputes, including negotiation, mediation, collaborative process and arbitration. Arbitration is particular lends itself to these types of case as it provides the parties with an independent third-party lawyer who can make a legally binding decision that provides the same outcome they would receive from the court, but which is far swifter and less expensive. They can also agree to adopt a version of the Family Procedure Rules rather than the unsuitable Civil Procedure Rules.

Another option would be Early Neutral Evaluation where an independent barrister is instructed to provide a neutral non-binding opinion to held the parties to then reach an agreement.

So why is the law so outdated?

I am afraid that the blame falls squarely at the feet of parliament and in particular the current government. Since 2010, the Conservatives have very sensibly and progressively introduced gay marriage and no-fault divorce. Unfortunately, they are far from progressive when it comes to cohabitation. Ill-informed backbench MPs always oppose cohabitation reform, arguing that it will undermine marriage. These usual suspects are the same people who also argued that civil partnerships, gay marriage and no-fault divorce would undermine marriage. I watched the parliamentary debate shortly before the passing of the no-fault divorce law in 2020. I was less than impressed, not least because many of the opponents to change were MPs were solicitors and barristers (albeit not ones who had ever seemed to have practised family law). I am afraid to say that I found the arguments that these MPs put forward to be utterly ignorant and ill-considered.

The law should reflect our society. It is no good arguing that it should reflect a bygone age. More and more people cohabit without ever marrying. The law needs to provide a fair way in which to resolve financial disputes at the end of their relationships. Labour and the Liberal Democrats included cohabitation reform in their 2019 prospectuses. It appears that we are likely to have to wait until there is a change of government before there is any hope of much needed reform in this area.

Until then, couples who cohabit are best advised to enter into a formal cohabitation agreement, so that they are certain about who owns what and what they will each receive in the event that their relationship ends. In the meantime, cohabitants need to bear in mind that not only are they not in a common law marriage, they are also not in a civil partnership.

2 July 2022

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