Cohabitation and societal upheaval
There is scope for significant reform to cohabitation law if only we looked to other countries, as Julian Hawkhead explains
History has shown that periods of national upheaval often lead to momentous social reform. During World War I, women increasingly took on working roles, beginning a shift from a predominantly homemaking role and contributing towards women achieving the right to vote in 1918.
Following the war, the bold and pioneering plan to make healthcare accessible to everyone was achieved with the birth of the NHS on 5 July 1948.
Now, I don’t profess to be an expert on social history. Nor do I suggest a direct correlation between the current pandemic and two world wars, but undoubtedly what we are experiencing now is a time of significant social upheaval that will have long-term repercussions for families.
In the last 12 months, I have seen how the pandemic and lockdowns have affected couples and their relationships. The early days of the pandemic forced couples to make big decisions in their relationship. Dubbed ‘turbo relationships’ by the media, couples had to choose whether to move in together or not see each other at all. Thankfully, the introduction of support bubbles in June 2020 helped couples reunite without committing to living together.
Those couples who planned to marry had their dreams dashed as weddings were banned at the beginning of lockdown one; and while the rules were relaxed a little during the summer months, people had to decide whether to proceed with limited numbers. I know of couples who have had to cancel their wedding not once, but twice as they push the date back to 2022.
The impact of delaying these marriages is unknown but coupled with the financial and emotional pressures that the pandemic has brought, couples may inevitably decide not to marry in the end.
Sadly, as has been reported elsewhere, enquiry levels for divorce have risen and continue to increase. At my firm, if we compare December 2019 and December 2020, we’re now witnessing enquiry levels rise by up to 67 per cent.
Before the pandemic, marriages rates were falling (dropping by 2.8 per cent from 2016 to 2017) and cohabitation rates were rising (up 8 per cent from 2008 to 2018). I believe this shift will grow as the pandemic continues.
However, the increasing trend in cohabiting does bring some concerns, given that current law in England and Wales treats married and unmarried couples differently – with cohabiting couples having minimal legal protection if the relationship breaks down.
Entering into a marriage or civil partnership creates a host of wide-ranging responsibilities that protect the financially vulnerable party. For example, for cohabiting couples:
- There is no ability to share property following separation unless that property is jointly owned or a beneficial interest can be established. Seeking a share of assets which are not in your name is significantly reduced if you are not married. Any disputes need to be solved by making a claim under the Trusts of Land and Appointment Act 1996 (ToLATA).
- A cohabitant has no claims for lump sums, pensions or maintenance for themselves, with claims for maintenance, property provision and lump sums only possible for a child’s benefit.
- On the death of a partner, a private pension scheme’s rules will determine whether a cohabitant can inherit (although there is a welcome move towards provision for cohabitants in some schemes). There is no inheritance of the state pension.
- There is no provision for cohabitants under intestacy rules. Instead, people have to rely on inheritance act claims.
- Cohabiting couples also include those who have entered into a religious-only ceremony, such as a Nikah, which has not complied with the requirements for a civil marriage.
As set out in the Court of Appeal judgment in Akhter v Khan  EWCA Civ 122, such a relationship amounts to a ‘non-qualifying ceremony’ to which the financial remedy provisions available following a divorce or grant of nullity do not apply.
Home and abroad
Over the years, family lawyers and organisations such as Resolution have been campaigning to address the imbalance in unmarried couples’ legal protection, but it is slow progress. And while small gains, such as the introduction of no fault divorce (due autumn 2021) have been achieved, there is a reluctance to bring the law in line with modern families due to (almost with a Victorian fervour) not wanting to ‘undermine the institution of marriage’.
However, if we look to other countries, they have been more progressive in addressing the imbalance of legal rights for unmarried couples. Under Australian law, the financial responsibilities and entitlements are the same whether or not you are married. If you live together in a de facto relationship for two years (one which is the same as that of a married couple apart from having a legal marriage ceremony), then the Australian family court will, if asked to do so, make orders concerning your assets and income as if you were married.
In Canada, despite the challenges of different territories and provinces, there is a legal recognition of cohabiting couples, described there as common law spouses, providing a level of financial protection on the cessation of a relationship either through government-sponsored legislation or common law.
Closer to home, in Scotland there is some protection for unmarried couples as a claim can be brought for a lump sum on separation; and in respect of the financial burden of looking after a child of the relationship.
The claim is limited to a cash lump sum payable in full or in instalments and is based on an economic disadvantage/advantage assessment due to the relationship ending. It does not extend to property ownership or pension sharing but provides greater protection than we see in England and Wales.
The case for reform
So, why are we yet to see any significant reform for unmarried couples in England and Wales?
In 2007, the Law Commission of England and Wales recommended reform, but the then government chose not to take action and it has failed to capture the attention of subsequent ruling parties since then.
There is, however, some sign that change may be coming. The Cohabitation Rights Bill is going through parliament and is awaiting a date for its second reading in the House of Lords. The bill has two main operative parts: one dealing with financial protection for former cohabitants; the other making provision about the property of deceased persons survived by a cohabitant.
The bill also allows for financial claims for couples with or without children after two years, similar to the Australian de facto model. The settlement can take the form of a cash lump sum, the transfer of a property to their sole name, or the ability to insist on the sale of their partner’s property to receive a share of the proceeds.
However, it can be opted out of; and a claimant would need to show economic disadvantage or contribution, including non-financial contributions such as caring for children or looking after a home.
Unfortunately, it must be noted that it is a private members’ bill without government support and there will be a lengthy process before any real change is seen.
For now, unmarried couples remain in an unsatisfactory situation reliant upon a patchwork of different laws giving limited protection to the financially vulnerable party.
But this law is no longer fit for purpose, and perhaps the social and family changes brought about by the pandemic may prove to be the catalyst needed for reform in how our laws treat unmarried couples.
Julian Hawkhead is the senior partner at Stowe Family Law stowefamilylaw.co.uk