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Lawyers urge UK ministers to speed up reform of cohabitation rights

Family lawyers are urging the UK government to reconsider its reluctance to introduce new legal reforms to ensure that unmarried couples living together in England and Wales have similar rights to married couples.

Cohabitation is the fastest growing family type in the UK, with 3.6mn unmarried couples living together, according to the Office for National Statistics, compared with 1.5mn in 1996.

But many couples do not realise that cohabitation does not confer the same legal status as marriage or civil partnership. If they split up, or one partner dies, there is no automatic right to inheritance or financial support — even if the couple have been together for years.

Lawyers say the current lack of legal protection means that women, in particular, who have scaled back their career to look after children can be disadvantaged after a family breakdown.

In November, the UK government rejected the main findings of an inquiry by the House of Commons women and equalities committee recommending better legal protection for cohabiting couples in England and Wales.

Ministers said they needed to complete existing reforms around marriage and divorce — which include reviewing the law on financial provision around divorce — before considering new legal changes for cohabitants.

But family lawyers say reform is needed urgently because many cohabiting couples are unaware that they do not have the same legal protections as married couples.

In 2019, a British Social Attitudes Survey found that 46 per cent of people in England and Wales wrongly assumed that couples living together were in a common law marriage.

“What the government is attempting to do is to kick this into the long grass in a manner that is unhelpful and illogical,” said Graeme Fraser, who chairs the cohabitation committee of Resolution, a national organisation that represents family justice professionals.

“The danger here is that until the law is reformed there will be more and more cases of unfairness because the numbers of people cohabitating is increasing,” he said.

Cohabitants have similar or identical protections to married couples or civil partners in certain areas, such as responsibility for children or protection from domestic abuse.

But when an unmarried couple splits up, a partner has no right to maintenance for themselves, although they can apply for financial support for the benefit of any children.

Property ownership rights also differ and are complex. If a home is only in one partner’s name, most commonly the other cohabitant must demonstrate a “beneficial interest” in the house. If this is not documented then financial contributions, such as mortgage payments, must be presented to prove there was a “joint intention”, showing that would result in both parties having an interest in the property.

“As matters stand, many people find themselves compromised by having unwittingly elected to a (non) regime which they do not understand,” said Matthew Booth, partner at family law firm Payne Hicks Beach.

“The reality remains that many of these individuals will be women who in some circumstances may find themselves entirely without legal recourse if their relationship breaks down.

“If a woman has given up her career and has no resources or property in her name she may find herself in dire financial circumstances.”

Divorcing couples can also rely on the courts to split their wealth and recognise the non-financial contribution made by one partner. However, for unmarried couples that homemaking contribution can be ignored when the relationship breaks down.

Anne Barlow, professor of family law and policy at Exeter university, said: “In a marriage one spouse is often disadvantaged in the labour market if they work part-time or not at all and their partner works full-time. But in a divorce that spouse can be compensated for the work they have done — caring has a value. But if you are unmarried and split up — it doesn’t.”

Unmarried couples have fewer rights regarding inheritance tax, so are unable to pass assets between each other tax-free if one of them dies, unlike married couples and those in a civil partnership.

Pensions are another complex issue — especially if one partner passes away. Lisa Ray, general secretary of the Civil Service Pensioners’ Alliance, a campaign organisation focused on the rights of retired civil servants and older people, told the women and equalities committee inquiry that 80 per cent of bereaved cohabitants rely on pension trustee discretion to secure their partner’s pension.

“[They] have to jump through a lot of hoops” to prove eligibility, she said but, by contrast, married couples just need to produce their marriage certificate.

Matthew Humphries, divorce and family partner at Stewarts Law, said many occupational pension schemes now had similar benefits for bereaved unmarried partners “but it is dependent on members filling in the right paperwork” and often the “vagaries of individual scheme membership”.

Moreover, when cohabiting couples split up there is no opportunity to go to court to enable pension assets to be divided — unlike for married couples.

“If you have a long relationship with one partner going to work and accumulating a pension and then the relationship ends — there is no opportunity for a cohabitee to have a pension sharing order,” said Sital Fontenelle, partner at Kingsley Napley.

The Law Commission, which helps reform the law in England and Wales, set out detailed proposals to improve cohabiting rights in 2007. But none have been taken up by the government — even though some other countries, such as New Zealand and most states in Australia, have introduced rights for cohabiting couples.

Caroline Nokes
Caroline Nokes MP: ‘It is deeply disappointing that the government has closed off the possibility of better legal protections for cohabiting partners for the foreseeable future’ © Dominic Lipinski/PA

More couples are now looking at signing cohabitation agreements — legally binding contracts that spell out how assets can be divided before or after they start living together, lawyers say.

However, some believe that the law should not be changed to introduce automatic cohabitation rights for unmarried couples.

Harry Benson, research director at the Marriage Foundation, a charity that champions the institution of marriage, said introducing a new law would effectively remove the need for couples to make a decision on their future relationship commitment.

He added: “Also what is the legal definition of cohabitation — is it when couples move in together? How is that defined? When they bring the toothbrush or the suitcases?”

Caroline Nokes, chair of the women and equalities committee, said MPs would continue to campaign on the issue: “It is deeply disappointing that the government has closed off the possibility of better legal protections for cohabiting partners for the foreseeable future.”

The UK government has accepted some recommendations made by the committee — including a call to raise public awareness of the legal distinctions between living together and marriage.

It has also said there are legal options for a cohabiting couple — for example, if they have been living together for two years they can make “family provision claims” — a financial claim against the estate of a deceased person — if their partner dies without a will.

The UK government said: “Marriage holds an important place in our society and we are currently looking at the law around it before considering any changes to the rights of cohabiting partners.”

It added: “There remain other legal options for cohabiting couples in the meantime.”

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