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Reform needed to protect cohabiting couples

By Joanne Raisbeck 2018-02-22T12:58:00+00:00

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In its latest Families and Households statistical bulletin, data from the ONS has again highlighted the increasing social shift away from marriage and towards cohabitation. Cohabiting couples are now the second largest family type; the fastest growing with 3.3 million couples in the UK choosing to live together, rather than marry or enter into a civil partnership. Yet despite these increasing numbers, we have still to see any meaningful reform of the law to provide much needed protection to cohabiting couples when they separate or upon death of one of the partners.

Alarmingly, a recent poll of over 2,000 British adults commissioned by Resolution to mark Cohabitation Awareness Week revealed that two-thirds of cohabiting couples remain under the misconception that there is “common law spouse” protection for them on relationship breakdown or death enabling certain rights similar to rights available in marriage. This is despite common law marriage not having existed since 1753.

Cohabitation: the current law

Source: iStock 639584126

The problem with the current law on cohabitation is that there isn’t one. The law treats cohabitants on relationship breakdown as two unrelated individuals meaning no account is taken of their relationship (in terms of financial of other contributions they may have made) in order to determine a fair outcome between them on separation or death. This is despite many couples being in long-term relationships and/or having children together: this often produces an unfair outcome.

Cohabitation does not provide an automatic or guaranteed right to ownership of a partner’s property and whilst cohabitants can apply under section 14 of the Trusts of Land and Trustees Act 1996 for the court to determine whether or not a party has an interest in a property, the extent of such interest and make an order dealing with the way in which that interest is to be realised, the courts have no power to override the strict legal ownership of property and divide it as they may do on divorce or dissolution of a civil partnership. Cohabitation disputes can only be determined where rules of trusts or proprietary estoppel apply.

In some circumstances, a former cohabitant may apply for an order for financial provision (in the form of transfer or settlement of property orders, periodical payments or lump sum orders) on behalf of their children under Schedule 1 Children Act 1989 . However, this only provides relatively short term relief (there is no legal provision for the payment of maintenance for former cohabitants whatsoever) and a vulnerable former cohabitant may become homeless when children reach the age of 18 or cease full time education. Furthermore the capital provisions of Schedule 1 are usually only of use in bigger money cases.

The surviving cohabitant of a partner who dies without leaving a will, has no automatic right under the intestacy rules to inherit any part of his/her partners estate. A surviving cohabitant may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if no provision (or inadequate provision) has been made for them either by will or by operation of the intestacy rules, but cohabitants are not treated in exactly the same way as a spouse.

Potential issues also arise for cohabitants in the areas of housing, social security, pensions, taxation, parental responsibility, birth registration and parental responsibility.

Until there is legal reform cohabitants need to take a proactive approach to protect them-selves. A cohabitation agreement setting out the ownership of assets and detailing what should happen if the relationship ends as well as consideration of property ownership by way of a declaration of trust, owning other assets in joint names, making a will and planning ahead on issues such as pensions, life insurance and lasting powers of attorney should all be seen as essential proactive measures for cohabitants to take.

What is the prospect of reform?

For a number of years, calls have been made from both within and outside of Parliament for reform of the law but we have yet to see legislative change.

In 2007 the Law Commission recommended legislative reform and Private Members Bills intended to establish a basic framework of rights and responsibilities for cohabitants on separation and/or death, have since been introduced on a number of occasions; most recently The Cohabitation Rights Bill [HL] 2016-17 . Resolution has also not given up championing reform in this area.

Broadly the proposed Cohabitation Rights Bill and Resolution have the same vision. In short these are:

If the parties have lived together for a specified continuous period and/or have a child together they would be able to apply for a financial settlement order.
The Court would take account of various discretionary factors, (not dissimilar to the factors set out in s25 Matrimonial Causes Act 1973) and could then, if appropriate, make a lump sum, transfer of property, property settlement, sale of property or pension sharing order.
Provide the parties with an insurable interest in each other’s lives.
Enable a cohabitant to make claims on the death of the other.
Have the opportunity to opt-out of legislative protection, by entering into a written opt-out agreement.

Resolutions proposals are a little more comprehensive and also note the following:

The suggested minimum period for couples without children is between two years (this would be consistent with the qualifying period for the Inheritance Act) and five years, with provision for less in cases of exceptional hardship
Reform should focus on discretionary financial awards which are fair as this would sit more easily with existing English family law.
There should be no presumption of equal sharing, but rather a requirement for the court to make an order reflecting respective contributions made by the parties and to compensate them accordingly.
Including a limitation on orders for periodical payments based on reasonable needs to a maximum of 3 years as an option but with a presumption that the parties should be self-supporting as quickly as possible with perhaps payments for child care costs to enable a primary carer to work.

It has now been 10 years since the Law Commission’s recommendations for reform. This has enabled time for reflection and review of the specific protection that cohabitants need in today’s society. As with any new legislation, it is always difficult to predict how the courts would interpret the provisions over time, not least because of the discretionary nature of awards, but the principles it instils are well considered and such reform would be welcomed by members of the judiciary, lawyers, the media and the public.

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2020 in family law: why cohabitants need legal reform

9 December 2019 | Applicable law: England and Wales

As we approach election week, one manifesto that deserves support is Resolution's Fairness for Families. Its timing is designed to encourage Parliamentary candidates to consider areas of family law which are urgently in need of reform, setting out as it does a wish list for the future government to enact.

Over recent weeks we have been reminded of the pressing need for long overdue reform of the law as it relates to cohabiting couples – the fastest growing family type in the UK with close to 7 million in the UK living in a cohabiting relationship and almost half of whom (according to a British Social Attitudes survey published earlier this year) are unaware of their lack of legal status and rights and thus vulnerability on relationship breakdown.

Whilst news that with effect from 31 December 2019 heterosexual couples will be able to enter into civil partnerships is welcome, this will only effect the informed few who decide to formalise the legal status of their relationship and does nothing to solve the problem that so many cohabitants face, as it does not address the fact that the current law does not adequately reflect or protect relationship living arrangements in modern society.

Save for limited claims in respect of dependent children, there are no financial claims against a former cohabitant, regardless of the length or nature of the relationship. Despite this, 46% of the public still mistakenly believe that the myth of 'common law marriage' somehow exists to provide protection – which it does not.

A stark reminder of the direct implications of this lack of protection was provided in the recently reported decision of Sandford v Oliver. They had been together for 23 years and had 3 children. Mr Sandford was a builder who carried out various renovations on the property (including an extension and a swimming pool). However, as the property was registered in Ms Oliver's sole name, when it came to their separation, Mr Sandford failed to persuade the Judge that he had an interest in it as there was no common intention between them that he should do so. The Judge concluded that the substantial improvement works he carried out to the property was to make the living arrangements more comfortable rather than undertaken because he thought he had a beneficial share.

The dredging back over a lifetime together to try to establish motivation and intention behind behaviour would be extremely daunting for most people - was it driven by the relationship (being a supportive partner), wanting to improve quality of life, or a consensus that they intended to share the home they lived in. Trying to piece together evidence over long time periods is inevitably not only time consuming and extremely costly but also emotionally gruelling. In a society where people are increasingly choosing not to marry, and may well choose not to enter civil partnerships, it seems to me to be essential that their rights are protected.

The recent Court of Appeal decision of Kahrmann v Harrison-Morgan also provides a salutary reminder of the disadvantage that befalls a cohabitee as compared with a spouse or civil partner following their partner's death. In that case the former cohabitant was ordered to return to her late partner's estate the £2.2m she had received for agreeing to vacate her partner's property in order for it to be sold. The Court of Appeal held that there was no basis for the payment; she did not have the right to occupy the property. Her partner had died intestate, due to the invalidity of his wills (which would have provided for her on behalf of their children), and she was not even eligible to make a claim against his estate as dependent because he had died domiciled in Germany.

Regrettably, cohabitation law reform continues to take a back seat. Successive governments have kicked the can down the road for over a decade despite the Law Commission's clear recommendations for reform in 2007 and notwithstanding calls for change from leading members of the judiciary over many years. The welcome imminent extension of civil partnership legislation only came about due to the commendable perseverance of Ms Steinfeld and Mr Keidan in taking their case to the Supreme Court. Further positive reform was anticipated when Siobhan McLaughlin (mother of 4 who had lived with her partner for 23 years) successfully persuaded the Supreme Court that the law preventing her from claiming widowed parent's allowance was incompatible with the European Convention on Human Rights, but despite that decision last year, the law remains unchanged.

Over the last 20 years we have seen enormous changes in family law. Although family judges are forward thinking, open-minded, and fairness-focussed they can only work within the parameters of the statutory law. Only Parliament can make legislative changes. As the time for change is now, we hope that the next government (of whatever complexion) takes active heed of Resolution's succinct manifesto.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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Cohabitation Notes

Updated cohabitation notes.

A collection of the best LPC Family Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through twenty-nine LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

In short these are what we believe to be the strongest set of LPC Family Law notes available in the UK this year. This collection of notes is fully updated...

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Home / Essay Samples / Life / Family / Cohabitation

Cohabitation Essay Examples

Common reasons why people choose to cohabitate.

Cohabitation has become a normative stage in young adults’ lives over the past decades. According to Stanley et al., cohabitation has become common, with an estimated 50% to over 60% of couples living together before marriage in the United States. Transition to cohabitation is often...

Inequality in the Law Relating to Cohabitation and How to Change It

Cohabitation is widespread and is becoming ever more common. It is actually the fastest growing family type in UK. In the last 15 years, number of people who are choosing to live together without being married or in a civil partnership has actually doubled. The...

The Rise of Cohabitation Due to Decrease of Marriage

One of the most common concerns of people who start seeking relationships is to engage in serious relationships that are legally married or live-in someday. People have concerns over the years about their ability to sustain a successful marriage. Living together without marriage or living-in...

Unresolved Problems in the Law in Terms of Cohabitation

The high growth of cohabitation in the United Kingdom and the absence of legal acknowledgement has led in many areas of law needing reform by the law commission. Cohabitation, compared to marriage, do not have formal requirements of a start and end of a relationship....

Whether the Cohabitation is Better than Marriage

The subject of human associations has been identified as one of the most complex issues inhuman lives. Opinions on marriage love affection sexual relationships and cohabitation tend to vary from person to person the resulting to an absence of a particular point of view. However...

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