Time to act on cohabitants

Rebecca Steinfeld and Charles Keidan received a lot of media attention both over their judicial review and the handing down of the judgment that went against them. Theirs, of course, was the challenge to the secretary of state for education, within whose ministerial portfolio equality issues fall, to the present extent of civil partnership.

The claimants submitted that there is no legitimate aim to be served by maintaining the difference in treatment of same-sex and heterosexual couples for the purposes of civil partnership. On 29 January Mrs Justice Andrews said: ‘Just as the UK was under no obligation to extend marriage to same-sex couples, it has never been under an obligation to extend civil partnership to heterosexual couples.’

There was no such obligation when the Civil Partnership Act 2004 (CPA) was enacted, she said. In her judgment, the Marriage (Same Sex Couples) Act 2013 had made no difference to the situation. Bringing in gay marriage did not suddenly cause the CPA’s exclusion of heterosexual couples from becoming civil partners to fall within Article 8 of the European Convention on Human Rights when they did not do so before.

Responding to the judgment, Ava Lee, campaign manager of the Equal Civil Partnership campaign, stated that over 36,000 people have written to the minister for women and equalities, asking her to open up civil partnerships. Subject to funding, it seems that the couple may appeal this decision.

Meanwhile, the Civil Partnership Act 2004 (Amendment) Bill will have its second, rescheduled, reading on 11 March. The bill is brief, with only two sections. It simply provides that section 1, subsection (1) of the Civil Partnership Act 2004 be amended to leave out the words ‘of the same sex’.

So-called ‘equal civil partnership’ is one thing. The fact is there is a real need for the government to reform the law for unmarried couples overall, short of such a legal relationship.

Back in 2005 the Law Commission was asked to look at the law that applied to cohabitants when they separate. In 2007 it published its report, Cohabitation: the financial consequences of relationship breakdown. This recommended the introduction of a new statutory scheme of financial relief on separation based on the contributions made to the relationship by the parties. Cohabitants who had had a child together or who had lived together for a specified number of years would have been eligible.

The then government took no real action. In 2011, Jonathan Djanogly, justice minister, announced that his government did not intend to reform the law relating to cohabitation. The

Law Commission replied that the existing law is uncertain and expensive to apply and, because it was not designed for cohabitants, often gives rise to results that are unjust. It pointed out that its 2007 report concluded that cohabitants should not be given the same rights as married couples and civil partners in the event of their separation, but instead recommended a new scheme of financial remedies.

More recently, the Cohabitation Rights Bill tabled by Lord Marks was introduced last year. It has been waiting for its second reading to be scheduled since June.

Meanwhile, the Office for National Statistics has confirmed that unmarried couples living together are the fastest-growing family type in the UK, increasing by just under 30% between 2004 and 2014. They now total some three million couples.

Five years ago the Law Commission was prescient when it said that the prevalence of cohabitation, and of the birth of children to couples who live together, meant that the need for reform of the law can only become more pressing.

Whatever may happen with civil partnerships, it is time that this government moved to reform the law, to improve the lamentable position in which unmarried couples find themselves – whether heterosexual or same-sex.

Tony Roe is a solicitor and family law arbitrator in Theale, Berkshire