19th Nov 2019

Un-wedded bliss? How unmarried cohabiting couples have become the new normal. But is this set to change?

In this blog, Carla Ditz, Professional Support Lawyer at Family Law in Partnership takes a look at the trend for cohabitation as well as the recent change in the law to allow opposite-sex couples to enter into a civil partnership by the end of 2019.

Statistics released in August 2019 by the Office of National Statistics show that cohabiting couples are the fastest growing family type, a feature of modern day living. There are of course many reasons why longer-term cohabitation is commonplace but many couples in this position are completely unaware of the financial implications should this relationship come to an end or wrongly believe they will be offered some sort of financial protection. This is a worrying state of affairs and one which needs to be addressed.

There are often more pressing issues on the government agenda (never has that been more true than at the present time with Brexit and a General Election to be held in December 2019). But it doesn’t change the fact that there is a legal lacuna when it comes to the rights of cohabiting couples on relationship breakdown when social preferences now indicate that marriage is not necessarily on the cards for everyone.

The Civil Partnership (Opposite-sex Couples) Regulations 2019 (SI 2019/1458) (CP(OC)R 2019)

Whilst we won’t necessarily witness a sea change, there is an argument that these statistics may start to alter with the enactment of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019. The Act provided that the Civil Partnership Act 2004 would be amended by regulation before 31 December 2019, so that opposite-sex couples could enter into civil partnerships in England and Wales. The effect of the CP(OC)R 2019 is to put this into effect. The Regulations were made on 5 November 2019 and will come into force on 2 December 2019 which means that the first civil partnerships between opposite-sex couples will be allowed to take place as of 31st December 2019 following the 28-day notice period.

Why are people choosing not to marry?

The arguments for choosing not to walk down the aisle are worthy of comment. There are many reasons why couples choose not to get married some of which are mentioned below.

The ideological objection: Last year, as their case came before the Supreme Court, Rebecca Steinfeld and Charles Keidan spoke of their deep-rooted and genuine ideological objections to marriage. They feel that a civil partnership is a more accurate reflection of their values and beliefs and would enable them to formalise their relationship in the way that they want. Importantly, it would afford them greater legal rights than what they currently enjoy as cohabitants. They are not alone. Some 15 months after the judgment of the Supreme Court that ruled in their favour, a change in the law to allow opposite-sex couples to enter into civil partnerships was in motion.

The Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 came into force on 26th May 2019. This Act enabled the Government to change the law so that opposite-sex couples could form a civil partnership. Same-sex couples have of course been able to enter in to a civil partnership since December 2005 following the enactment of the Civil Partnership Act 2004. With changes to the law to allow civil partnerships for opposite-sex couples, those whose preference it is to enter into this type of civil union over marriage will at least soon be afforded legal rights on relationship breakdown akin to those available on divorce. Very soon indeed – opposite-sex couples will finally be able to register civil partnerships in England and Wales starting from New Year’s Eve 2019. Couples will be able to give notice from 2nd December 2019, and following the 28 day notice period, they may have a very different New Year’s Eve celebration!

Whether this change in the law translates into more opposite-sex cohabiting couples entering into a civil partnership remains to be seen. It very much depends on whether this was the change in law they were waiting for.

Couples not wishing to re-marry: Whilst some couples steer away from marriage due to ideological objections such as those mentioned above, other couples may reject marriage for a wholly different reason. For those who have been married (and divorced) before, they may decide this is something they do not wish to do again. This may be particularly true of couples who divorced later on in life and who have grown-up children to whom they would like to pass on their wealth rather than to a former spouse should that relationship come to an end.

The wait: Some couples may have been together for some time (or even engaged for a while) but have not yet got married. It may even become an after-thought if the couple already have children together and own property etc. Put simply, it may not be top of their agenda and is not something they feel pressured to do.

Preservation of wealth: Where one party is significantly wealthier than the other, marriage may prove to be too much of a risk to their wealth. Whilst they couple could enter into a pre-nuptial agreement, at present these are not legally enforceable in England and Wales and can still be challenged in the courts. The current legal position, following the Supreme Court decision in Radmacher v Granatino is that pre-nuptial agreements should be given “decisive weight” unless the agreement is unfair. So whilst a pre-nuptial agreement is a factor to be taken into account by the court, there is still a chance it will not be upheld. Careful drafting and good legal advice are imperative in this respect.

So what are the proposed legal changes for cohabitants?

The Cohabitation Rights Bill

The Cohabitation Rights Bill is a private member’s bill introduced by Lord Marks of Henley-on-Thames. Lord Marks’ Bill received its second reading on 15th March 2019. The bill proposes to establish a framework of rights for cohabiting couples following the breakdown of the relationship or the death of one of the cohabitants.

The provisions of the bill would apply only to those cohabiting couples who either

  • had a dependent child or
  • had been living together as a couple for a minimum of three years.

 The bill would provide the right for either cohabitant, upon the breakdown of the relationship, to apply to a court for a financial settlement order to redress a financial benefit or an economic disadvantage resulting from the period of cohabitation. The bill would provide the right for cohabitants to opt-out of the financial settlement provisions, if they both agreed. In addition, the bill would provide cohabitants with the right to succeed to their partner’s estate under the intestacy rules and the right to have an insurable interest in the life of their partner, similar to the rights of married and civil partnered couples. (House of Lords Research Briefing)

It is a great shame however that, because of the Dissolution of Parliament on 6th November 2019 followed by the General Election in December, this Bill, like many others, will make no further progress.

In the meantime, there are ways of offering protection to cohabitants such as a Deed of Trust or a Cohabitation Agreement to expressly come to an agreement about for example, interests in the property in which the couple live and how they will arrange their finances during the relationship but this does of course require the couple to be proactive in arranging such a document. Without such a document, there could be uncertainty and disputes over property on relationship breakdown which might otherwise have been avoided.

Time for change

We know there is appetite for change. That is abundantly clear. The family law organisation Resolution will once again be campaigning for change during Cohabitation Awareness Week (25th – 29th November 2019). The focus of the campaign will be the need for legal reform to provide at least basic rights for cohabiting couples who separate. More information can be found on the Resolution website.

For more information on any of the matters mentioned above including cohabitation, please see our ‘Living Together’ area or to speak with one of our experienced family lawyers, please call 0207 420 5000 or email hello@flip.co.uk

For information on Steinfeld and Keidan, see the below blogs:

The Civil Partnership Debate – Success For Rebecca Steinfeld And Charles Keidan In The Supreme Court

Steinfeld & Keidan: Civil Partnership Appeal To Be Heard Today

Civil Partnerships For All? Rebecca Steinfeld And Charles Keidan Head To The Supreme Court