Unmarried Couples: Rights and Legal Protection

Where next after the Government once again rejects the recommendation for cohabitation reform

The Government has responded to the report from the Women and Equalities Committee on the rights of cohabiting partners (published 4 August 2022) which reflected support from all quarters to change the law applicable to cohabitants.  It was a depressing list of rejections arguably disguised under the term “partial acceptance”.

To an impartial observer it likely seems incomprehensible that basic protections for one of the fastest growing sectors of society is being ignored whilst other countries leap ahead with legal reforms.  For example, very different rules apply in Scotland whilst cohabitants in England and Wales are still left without a legal framework, trying to apply comments from cases decades ago out of kilter with the reality of cohabitants separating today.

ONS statistics tell us that there are over 3.7m cohabiting couple families.  For the first time more babies were born to unmarried mothers than to mothers who were married or in a civil partnership.  Research also shows that cohabiting relationships are at greater risk of ending than marriages and civil partnerships.  Yet these communities have only poor legal systems to turn to:

• The child maintenance service provides basic levels of maintenance and only – as the name suggests – for children.  For the last 30 years it has failed to deliver on its promises – and, despite largely wiping clean the vast arrears of around £3.8 billion that had accumulated until 2012, they were already back at £475m under the replacement scheme by March 2012;
• “Schedule one” is a little used and expensive jurisdiction for topping up this provision to meet a child’s basic needs (in terms of housing, equipping, educational costs and sometimes maintenance);
• The even more unpredictable, challenging, limited and expensive claims under trust law.  Decided on a doctrine of trusts, largely built on the concept of common intention between the parties, something usually impossible to spot, let alone capture and pin down;
• That is otherwise it. Separating couples themselves (as opposed to provision for their children) have no other claims akin to married couples contrary to longstanding public belief.

That same impartial observer would no doubt say “How is the Government getting away with this? Why is there not a national outcry?”  The sad reality is that most people just don’t know this is going on.  A 2019 British Social Attitudes Survey found that almost half (46%) of the population of England and Wales assumed that cohabitants living together were in a ‘common law marriage’, presuming there is some sort of a safety net of equitable re-distribution.  However, common law marriage disappeared in England in 1753.

It is against this backdrop that perhaps one of the most shocking responses of the Government to the report of the Women and Equalities Committee was that they had already demonstrated a commitment to education on relationships and legal distinctions concluding that a national awareness campaign is not necessary.

The Chair for the Women and Equalities Committee has rightly criticised the “flawed logic” of the Government and how their “response effectively kicks the issue into the long grass and risks leaving a growing number of cohabitants financially vulnerable.”

What needs to happen?  Decades were spent pursuing reform of divorce law and that finally arrived in 2022.  Another appalling lacuna, recognition for same sex relationships, was finally remedied back in 2004.  The former was a relentless campaign, that many believe could only have come to a conclusion courtesy of the financial sacrifices in the Owens family, who brought their divorce into the public arena and the Supreme Court in the summer of 2018.  The Civil Partnership Act 2004 was a quieter reform.  What had seemed so unlikely a few years earlier was suddenly so obvious and overdue for the majority.

So, to answer the question “where next with cohabitation reform” … more of the same.  That is unless or until we can find something better.  The campaign for change this time around was a great one and the arguments for change were overwhelming for anyone who would hear them with an open mind.  It should not take the sacrifice of people trying to challenge the limited legal systems available to them to bring a landmark case at great expense.  It should not be another reform kicked to the curb for the obvious majority to be left without.  It is a bleak system that sees the only hope being yet further bodies like the Women and Equalities Committee continually bringing this issue to the fore until a Government listens.  Until then, we can but hope that the word spreads so that discontent can grow among the biggest section of society and knowledge can be shared until protections are in place.