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After speaking to a solicitor about leaving her partner of 17 years, Beth sat in her car for two hours and cried.
Her partner’s behaviour was increasingly abusive, but the couple had never married, most of their assets were in his name, and she says he had manipulated her to neglect her business in favour of being a homemaker.
Beth, which is not her real name, feared that if the couple split, she would be financially destitute. When she eventually left a year later, she had less than £100 in her bank account.
If a married couple decides to break-up, a 50:50 split of assets is normally the starting point for negotiations. But because Beth was not married to her partner, under English law she is not entitled to claim spousal maintenance, or a share of any marital assets as a married partner could.
“The solicitor said: ‘You have never been, and you will never be, entitled to a single penny’ — on paper, I do not exist,” says Beth. “The stress and the cost has been absolutely crippling and my mental health has really quickly deteriorated.”
The issue has been brought to the fore by the Labour party, which is currently consulting experts and researching other jurisdictions’ approaches after shadow attorney-general Emily Thornberry last year pledged to reform protections for cohabiting couples in the event that they split.
While some legal experts say reform could bring the legal understanding of relationships into the 21st century, Labour faces a significant challenge: to create a policy that will withstand opposition from those who fear it will dilute the importance of marriage and drag couples who have chosen not to marry into a legal status where they could be stripped of their assets.
“The time is right to provide a system for reaching fair and equitable settlements when cohabiting couples break up,” Thornberry told the FT.
The proportion of adults in England and Wales who are cohabiting — living together and in a relationship but not married or in a civil partnership — has more than doubled between 1996 and 2021 to 3.6mn.
It is commonly — and inaccurately — believed that cohabiting couples have the same or similar rights as those who are married, with nearly half of people in England and Wales believing couples living together are in a “common law marriage”. But cohabiting couples do not have the same rights to property and assets as those in a marriage or civil partnership.
“You see situations where couples have lived together exactly as a married couple would, and particularly in the older generation. Often the woman will have given her career to care for children,” says Kathryn Cassells, a senior associate solicitor at Vaitilingam Kay Solicitors. “On separating they’re left in a state of legal limbo.”
As in Beth’s case, it can even spur or prolong abuse. “We know it is something perpetrators take advantage of, as a means to stop the victim-survivor from safely leaving the abuser and gaining access to assets to rebuild their lives,” says Deidre Cartwright, public affairs and policy manager at charity Surviving Economic Abuse.
While there are some legal routes available these are small in number, complex, and can be expensive.
Options include the Trusts of Land and Appointment of Trustees Act, which can determine whether people whose names do not appear on the title have an interest in the property. The Children Act can allow for payments or property to be provided in support of a child, until they are 18 or have left university.
Previous calls for reform in England — including a recommendation by the Law Commission in 2007 and another by the Women and Equalities Committee in 2022 — have fallen flat.
Detractors point to low take-up of a complex existing cohabitation regime in Scotland, where few claims are brought, which has been blamed on poorly drafted law and a lack of case law and guidance for solicitors.
Cohabitation reform is a “political hot potato”, says Bradley Williams of Family Law in Partnership. Governments have not wanted to grapple with the issue because of the difficulty in deciding which couples would be included.
The 2007 Law Commission proposal recommended that couples who have lived together for anywhere from two to five years should be eligible to apply for financial relief, as well as any couple that has a child. However, some experts say that could drag in couples who deliberately do not want to have legal obligations towards each other.
“It’s a deprivation of civil liberties. Why should you have that structure imposed on you when you may well have chosen to avoid it?” says Baroness Ruth Deech, a crossbench peer and former family law lecturer at Oxford university.
Another question concerns which ex-partners should be able to claim. Divorcing partners can apply for maintenance based on their “needs” after the relationship has ended and a share of property acquired during the relationship.
Whereas under the Law Commission’s cohabitation proposal, an ex-partner could apply for relief to make the other “share the economic disadvantage” the relationship has caused them, which, for instance, may have been caused by them giving up work to care for a child.
But other jurisdictions go further.
In Sweden, splitting couples can apply for a division of a property if it “was acquired for joint use”, regardless of who paid for it. In New Zealand, couples who have been together for longer than three years are considered to be in a “de facto relationship”, and get a legal entitlement to half of the relationship property.
Another battleground is whether a potential reform should be opt-in or opt-out. Advocates for an opt-in system say it would prevent unwilling couples from being sucked in, but detractors say it could be leveraged against the financially weaker party in a relationship.
An opt-out system would have to be watertight, according to Michael Horton KC, a family law barrister at Coram chambers. Although prenuptial agreements are enforceable in the UK, they can be considered non-binding if the court finds they are unfair.
“If you want to opt out you should be able to do so, and there shouldn’t be anyone saying ‘this isn’t very fair, let’s just forget that you opted out of this’,” he says.
Others feel that cohabitation reform would undermine marriage and reduce the number of people who choose this ancient form of legal union.
“This is not a popular view, but family outcomes tend to be better for married couples,” says Harry Benson, research director at the Marriage Foundation. “My view is that introducing automatic rights for cohabiting couples, even with an opt-out clause, fundamentally undermines the nature of commitment and how families stay together.”
But for Thornberry, the two should be able to exist side-by-side.
“The institution of marriage will always play a crucial part in our national way of life, but we do not believe that marriage is made more special by denying important rights to other people who choose not to get married.”
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