To many family lawyers’ disappointment, the King’s Speech on 17 July did not include cohabitation law reform in Labour’s upcoming legislative programme. With estimates that there are now around 3.6 million couples living together outside of marriage in the UK, it is increasingly clear that the current law is not fit for purpose.
In the first half of this two-part article, Victoria Lee Domenech and Sarah Havers looked at the Labour Party’s potential U-turn on the issue of reform, the rise of cohabitation and the state of the current law. In this second part, we consider how we got here and the case for reform.
How we got here
The difficulties of the current system were exposed over 40 years ago by the Court of Appeal in Burns v Burns. Valerie Burns and her partner lived as husband and wife for 18 years without marrying. Ms Burns changed her surname to match her partner’s and gave up her profession as a tailor to look after the couple’s children. Mr Burns purchased the family home in his sole name, where Ms Burns lived for 17 years as the homemaker. However, upon separation, the court held that Ms Burns had no legal interest in the property as she was not married to Mr Burns and had not made any direct contributions to the purchase price.
The court highlighted the unfairness of the decision when dismissing Ms Burns’ appeal, noting that they would have had wide discretion to exercise their powers had Mr and Ms Burns been married. The couple were married in all but name, yet Ms Burns had no rights against her partner. In his judgment, Lord Justice Waller noted that “the unfairness of that is not a matter which the courts can control. It is a matter for parliament”. However, despite having had ten different prime ministers since the Court of Appeal’s decision, Ms Burns would still not have had any interest in the family home had she brought her claim today. As we saw in part one of our analysis, the rights available to cohabitants in relation to property are limited and difficult to establish.
Although there have been several attempts at reform since Burns, these have not been implemented by parliament. Notably, in 2007, the Law Commission made detailed recommendations for reform, designing an opt-out scheme for couples who had lived together for between two and five years and couples with a child to be eligible to apply for financial relief. The government rejected this. Subsequently, and as highlighted in the House of Commons’ 2022 research briefing, multiple unsuccessful private member’s bills were introduced in both houses.
In a 2011 report, the Law Commission looked at intestacy and family provision claims on death. Its recommendations included for certain cohabiting couples to be given the right to inherit after each other’s death under the intestacy rules without having to go to court. These were later set out in the draft Inheritance (Cohabitants) Bill, but the legislation was never implemented.
More recently, in August 2022, the Women and Equalities Select Committee published its report “The rights of cohabiting partners”. The committee called for reform once again, urging the Ministry of Justice to review the Law Commission’s 2007 opt-out scheme framework and for the government to implement the proposals. In November 2022, the government published a response largely rejecting the committee’s recommendations on the basis that reform could not be undertaken until the completion of other work in relation to financial remedies on divorce. The Law Commission is currently conducting this review of financial remedies, which expressly excludes consideration of cohabitation law reform. It is due to publish a scoping report in November 2024.
The case for cohabitation law reform
Although we use the term “reform” in this article to refer to the legislative action needed, “reform” is a misnomer because there is no codified system of cohabitation laws to reform. The law in this area (or lack thereof) has largely remained the same since the 1980s when Ms Burns first brought her claim. Families and relationships have no doubt changed since then, but the law has not kept pace with these changes.
Some oppose reform, fearing it will dilute the importance of marriage. However, as noted in part one, marriage rates in Britain have been decreasing for decades notwithstanding the current lack of legal protections available to cohabitees. In addition, the prevalence of the common law marriage myth suggests that, for most people, legal rights carry little weight when it comes to deciding whether to marry. Further, analysis from foreign jurisdictions where legislation has been introduced to extend the rights of cohabitants supports the view that reform in this area does not directly impact marriage rates.
Another commonly cited concern is that reform will impose financial obligations on individuals who do not want them. A good example might be someone who has already been through a divorce and wishes not to remarry in order to preserve wealth for their children from a previous marriage. The solution to this may lie in the Law Commission’s 2007 proposals, which advocated for an opt-out scheme that would allow those who want to exercise their autonomous choice not to incur such financial obligations to opt out of those responsibilities.
As highlighted by the Women and Equalities Select Committee in its recent report, an opt-out scheme would protect individuals who need it the most while allowing those least affected by relationship-generated disadvantage to exercise their autonomy if they wish to do so. However, the success of an opt-out scheme will depend on an extensive awareness of couples’ rights and obligations, an objective that will be difficult to achieve.
Notwithstanding the above, one of the main arguments in favour of reform is that the current system is unfair. The difference that a marriage or civil partnership certificate can make to couples in the event of relationship breakdown or death is stark. A cohabiting couple may have been together for years and raised a family together, only for the financially weaker party to find that they have limited, if any, rights. Yet had the couple been married for part of their relationship, even just the final year, the situation would be different. The financially weaker party would have a range of financial claims available to them (with the starting point being that everything built up during the marriage would be shared equally between the parties). Periods of cohabitation before marriage would also be taken into account where such cohabitation had led seamlessly into the marriage itself, as it almost always does.
So, where does this leave us?
Partner Matthew Humphries, who sits on Resolution’s Cohabitation Committee, comments: “It took decades of campaigning and the Supreme Court decision in Owens v Owens highlighting the unreasonableness of divorce law before no-fault divorce was finally implemented in England and Wales. Forty years after Burns, it seems family law practitioners may face a similar timeline when it comes to cohabitation law reform.”
Given that family law reaches so deeply into people’s personal lives and homes, one might wonder why it always appears to be at the bottom of the legislative agenda. There is no doubt the law will change; it will have to if it is to catch up with society. The question is and remains: when?
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