Cohabitation law is stuck in another age

Even in 2022 there is a widely held belief in our society that cohabiting couples are able to make the same financial claims upon separation as married couples. It’s not true, of course, but the consequences of making that assumption can be profound. Every year thousands of unmarried partners – mostly women - come to the end of lengthy relationships during which they have sacrificed their career and earning potential to care for their children and/or partner.

The problem is becoming only more acute as in 2021 over 20% of couples were choosing to live together without registering their relationship as a marriage or civil partnership. So, what can be done to help that ever-growing group to whom injustice is done each year?

This July sees the 15^th anniversary of the publishing of the Law Commission’s report to parliament on the financial consequences of relationship breakdown. It contains a well-defined scheme to determine financial claims when cohabiting couples separate.

Before we look at the detail, it is worth noting that in time since the report’s publication, the number of cohabiting couples has risen by nearly a quarter to 3.6 million, compared with the number of families in a legally registered partnership which has increased by just 3.7% to 12.7 million. So, with marriage plateauing and cohabitation rates increasing faster than ever, why has nothing happened to bring cohabitation law into the 21^st century?

Historically, it was said that giving greater rights to cohabitants would undermine marriage. We are surely past the point of believing that as a society. Quite simply, legal considerations are nowhere near the top of the list of reasons why people get married. And besides, the Law Commission’s proposed scheme would not give cohabiting couples anything like the same rights to make claims as those in a marriage or civil partnership. So what would it do?

In summary, those who were eligible for the scheme, either by having had a child with their partner or having lived together for a minimum duration could, subject to the terms of any pre-nup-style agreement to dis-apply the scheme, apply for limited financial remedy for themselves once they had separated.

The amount of any award, whether capital or income in nature would be linked to the benefit the responding party had retained or the continuing economic disadvantage that the applicant had suffered as a result of contributions made to the relationship. The value of any award would depend on the extent of the retained benefit or continuing economic disadvantage, whilst having had its first consideration and the welfare of any dependent children.

Sounds sensible doesn’t it? Jurisdictions in Canada and Australia thought so 40 years ago, as did Scotland in 2006.

The Law Commission’s proposed scheme would dovetail very nicely with existing provisions in Schedule 1 of the Children Act allowing the court to make capital provision for the benefit of children.

Governments of every colour have so far failed to be convinced of the pressing need for reform. Meanwhile, many people, particularly women, find themselves at the end of long term relationships without any financial support whatsoever and are forced to rely on tax payer funded state benefits.

Their legal remedies are based on a patchwork of statute and English trust law – a concept most will never have even heard of, much less understand. But that does nothing for those who have made the same life decisions as their married and civil partnered counterparts and given up a career to care for children or support the career aspirations of their partner.

Whilst those coming out of lengthy marriages are entitled to their fair share of assets and income resources based on an assessment of fairness and assuming equality of overall contribution to the family, cohabiting partners must prove such concepts as a common intention to share, personal financial contribution and acting to their own detriment. Such financial claims as they can make for the benefit of children specifically prohibit any enrichment for the parent with care of children, even to the point of returning capital used to purchase a home.

The disparity in post-separation life chances between married and non-married is stark and reminiscent of a bygone age of jurisprudence that required conformity to a narrow definition of what relationships should look like. We live in the 21^st century and things are different now.

Rights for women, or predominantly for women, have come a long way since the suffrage movement’s success nearly 100 years ago, but can we really say as we move through the 21^st century, that we have done enough when each year we still fail to protect thousands of unmarried mothers from financially ruinous separation?

Our society has changed markedly in the last 20 years - civil partnerships, same sex marriage, a concerted focus on tackling domestic abuse. Reforms thought impossible 50 years ago have taken their natural place on the statute book largely without controversy. And yet this corner of family law designed for another age still persists. With a general election less than 2 years away, now is the time for our leaders to commit to reform.

Alex Davies is a partner at Cripps Pemberton Greenish