National practice Mills & Reeve is the latest organisation to publish evidence in favour of greater legal protection for cohabiting couples, and with a Family Justice Bill on parliament's agenda, the time has come for MPs to have a serious debate about reform.
A YouGov survey commissioned by the firm reveals, yet again, how cohabiting couples misconceive their legal rights. More than one-third (35 per cent) of 1,006 cohabiting adults either believed they had the same rights as married couples or did not know. A further 35 per cent were unaware a property owned as joint tenants will typically be split 50/50 regardless of how much each party contributed.
The survey also highlights widespread lack of awareness of wealth protection measures designed for cohabiting couples. More than three-quarters of respondents (76 per cent) had never heard of legally binding cohabitation agreements, which can provide certainty on money and property division upon the breakdown of a relationship. Just one in ten of those who were aware had an agreement in place, while only 2 per cent of all respondents had one.
There are lessons for lawyers, too. Despite the importance of choosing the right property ownership structure, it found that just one-third of clients were given professional advice as to their options when purchasing their current home.
Alison Bull, a partner at Mills & Reeve, said: ‘Many cohabiting couples think they are protected when they buy or own property and there is an assumption the law provides a “fair financial remedy” if a cohabiting relationship ends. However, this is often not the case.
‘The law surrounding cohabitation can result in terribly unfair results and cases are often complex, lengthy, and expensive. The “loser” can also end up paying the other party’s costs, making any litigation even more risky.’
According to the Office for National Statistics there were 3.3m cohabiting couples in 2016 – the fastest growing family type in the UK – and family lawyers have argued that specific legislation to protect their interests is ‘long overdue’.
‘There are more and more people living together and choosing not to get married or enter into civil partnerships,’ said Bull. ‘Society is changing and the legal system needs to catch up. What we have is a set of archaic laws that do not protect cohabiting couples – and there is clearly demand for change.’
In 2007 the Law Commission recommended greater protections for cohabiting couples but the then coalition government rebuffed its proposals four years later.
In June 2014, Lord Marks brought his Cohabitation Rights Bill to the House of Lords; it had its second reading later that year but did not go any further.
Lord Marks had argued that legislation was overdue but was opposed by Baroness Deech, who concluded that ‘it would reduce willingness to commit long-term and would greatly increase the stress of couple breakdown, significantly to the detriment of children’.
Lord Ashton, on behalf of the government, welcomed the debate on cohabitation law reform but said more time would be needed to discuss the ‘complex and far-reaching’ recommendations made by Lord Marks and the Law Commission, which wasn’t available in the 2010-2015 parliament.
No progress has been made since, despite Lord Marks reintroducing a similar bill to the House of Lords in June 2016. A House of Commons briefing paper on the issue, published last month, has summarised the position in England and Wales for MPs’ reference.
The lack of political will for legislative change is clear but research such as that presented by Mills & Reeve this week breathes new life into the debate.
So the issue is once again left for campaigners and MPs to push. Family lawyers organisation Resolution, for instance, is advocating a legal framework of rights and responsibilities for cohabitants upon separation to be introduced as soon as possible.
Speaking to Solicitors Journal, Nigel Shepherd, Resolution’s chair and head of family law at Mills & Reeve, said the results of his firm’s report further underlined the need for both wider public education about the rights of couples living together and legislative reform. While he hoped there would be changes to the law, he regretted the current lack of appetite from the government to do so.
Meanwhile, back in Westminster, cohabitation laws are just one of the reforms Conservative MP Suella Fernandes introduced in the Family Justice Bill. The bill, which has cross-party support, had its first reading under the ten-minute rule in the House of Commons last week.
The barrister from No.5 Chambers told MPs she hoped the government will take the opportunity to begin work on creating a family law system fit for the 21st century. Its second reading is due on 12 May.
There is overwhelming evidence and support for cohabitation laws based on years of competent research and evidence. Those advocating for change are well informed and can back up their claims that cohabitation laws will benefit millions of people. Parliament must now take the opportunity to consider legislative reform.
Matthew Rogers is a legal reporter at Solicitors Journal