The clamour for the law to be reformed to protect those who do not marry and their children has been getting louder and louder as the years and decades have gone by, but nothing has changed.
Back in July 2022, the government was urged by a cross-party group of MPs to improve protection for unmarried couples.
Just a few weeks ago, asked by the House of Commons justice select committee for a timetable for reform, Lord Ponsonby of Shulbrede, the minister in charge of family justice, marriage and divorce, said that a formal consultation will be issued this year ‘to build public consensus on what cohabitation reform should look like’.
In July 2007, nearly 18 years ago, the Law Commission did precisely that. In its extensive report, published after two years’ work and following a consultation paper in May 2006, the commission examined the state of current law and the case for reform, setting out detailed recommendations.
It concluded that not all cohabitants should be able to obtain financial relief in the event of separation. The report did recommend implementing a scheme whereby any remedy should only be available where:
l the couple satisfied certain eligibility requirements;
l the couple had not agreed to disapply the scheme; and
l the applicant had made qualifying contributions to the relationship giving rise to certain enduring consequences at the point of separation.
The commission also considered the impact of reform on marriage. The conclusion it reached was that the type of reform recommended would not harm marriage. At paragraph 1.21 of the executive summary, the commission said: ‘The argument that it would do so underestimates marriage by suggesting that legal considerations are uppermost in couples’ minds when they decide whether to marry. Research evidence indicates that the law is low down the list of reasons why people get married and that those who choose to marry for family, religious, social, cultural or other personal reasons will continue to do so, whether or not financial relief is made available between cohabitants. In any case, marriage would remain legally distinctive because of its different regime of financial relief.’
In September 2011, more than four years later, the coalition government published its response, announcing that it had no intention of taking forward the commission’s recommendations.
So, we have gone around in a complete circle. There is no reason why the current Labour government could not announce that it will accept the commission’s recommendations and implement them.
Has anything changed in the intervening period? No, except the problems caused by what the commission described as a ‘patchwork of legal rules’. These are unsatisfactory, complex, uncertain, expensive to rely upon and not designed for family circumstances – which often gives rise to unjust outcomes. Those problems have increased as more couples decide not to marry but to live together.
In 1996, 1.5 million couples lived together. By the time of the 2021 census, this figure had risen by 144% to 3.6 million. At the same time, the Millennium Cohort Study found that 88% of married parents were still together when their child was five years old compared with only 67% of parents who were cohabiting when their child was born. More starkly, children born to cohabiting parents were almost three times more likely not to be living with both parents when they were five years old compared with children born to married parents.
Marriage can clearly make a difference, especially in children’s lives. But they cannot choose if their parents marry or not. They need to be protected no matter the nature of their parents’ relationship.
At present, the law does provide them with some limited protection. But it fails to adequately protect the weaker financial party to the relationship. The situation is not helped at all by the pervading myth of the ‘common law marriage’. It does not exist as people imagine.
In 2007, research referred to by the Law Commission and which formed part of the British Social Attitudes survey indicated that a majority favoured cohabitants having access to financial relief on relationship breakdown.
The report went on to consider taking steps to dispel this illusion but concluded that: ‘While improved public awareness of the law is essential, evidence suggests that this strategy is not sufficient, by itself, to deal with the hardship that can arise when cohabitants separate. There will always be reasons why cohabitants do not or cannot take steps to protect themselves. In particular, it is often not feasible for a person simply to “get married” as his or her partner may not agree to do so. In such circumstances, the only alternatives are to put up with the existing position or to leave the relationship. It is not obviously in the interests of the couple, any children involved or society generally for a family to break up in such circumstances.’
The law should exist to protect its citizens. It could not be any clearer that, as things stand, it does not. There is a degree of cross-party agreement that reform is needed. The public seems to support reform. We do not need, nor probably can we afford, more consultation and research. It is all there.
The children and families who suffer as a result of our legal system certainly cannot afford more delay. They deserve to see their politicians taking action and fulfilling election pledges.
Graham Coy is a partner in the family team at Wilsons Solicitors, London. Paralegal Madeline Scott also contributed to this article
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