The House of Commons’ Women and Equalities Committee has urged the Government to consider introducing recommendations from the Law Commission’s 2007 report on cohabiting couples. The report seeks to provide more certainty, autonomy and fairness for people in these couples by introducing more legal protection for them. The Committee would like to see draft legislation in the 2023/4 parliamentary session. A Government spokesperson said that the government will “carefully consider” the recommendations and “respond in due course”.
Is living over the brush becoming more common?
Figures compiled in 2020 estimated that there were 3.6 million cohabiting couples in the UK compared to around 12 million married couples. Only this year it was reported that for the first time since records began in 1845, more children were born out of wedlock than were born to married couples, bearing witness to the fact that amongst the younger child-bearing generation, cohabitation is almost certainly now the norm. Clearly, therefore, the Equalities Committee believes this is a phenomenon that cannot be ignored any longer.
So, what is a cohabiting couple?
It is only certain that the couple must not be married or in a civil partnership. The Law Commission’s report never settles on a particular definition for a cohabiting couple but suggests “considering” the following factors in order to determine whether a couple qualifies:
(a) Existence of a joint household
(b) Stability of the relationship
(c) Financial arrangements
(d) Responsibility for children
(e) Sexual relationship
(f) Public recognition of the relationship
This list of factors is that already used by the court for identifying cohabiting couples.
What rights do those in cohabiting couples have as it stands?
Those in cohabiting couples have few in fact one could say no legal rights that arise from the fact that they cohabit.
(a) Ownership of the Home
Generally, you will be entitled only to that property which is yours or property that you would have been able to claim ownership of regardless. However, trust law may give some protection to those who have contributed to property in money or kind or where there has been a common intention that an individual should have rights to property. This is however a complex area of the law and may require expensive legal proceedings to define the parties respective “beneficial entitlements”.
(b) Maintenance
Currently, neither person in a cohabiting couple has a financial responsibility towards the other. They may leave with all the assets and income that were solely in their name without question.
Whilst we don’t want to give readers any ideas, paradoxically if one party dies without having dispersed their wealth beforehand, a cohabitee may be in a stronger position as they will have rights to apply for financial provision as a dependent under the Inheritance (Provision for Family and Dependants) Act 1975.
(c) Children
Unless the father jointly registered the child’s birth and is named on the birth certificate, it is only the mother who automatically has parental responsibility for any children when she is not married to the father. Ultimately, though, for any child-related dispute, the court will decide based on the best interests of that child.
What are the Law Commission’s recommendations?
The Law Commission (LC) proposes an opt-out cohabitation scheme set to reform the rights of those cohabiting in a couple following their separation.
It recommends that the scheme applies to:
(i) couples that live together with a child/ children (Important Note: this is any children not just children born to the couple in question); or
(ii) couples that have lived “as a couple” in a joint household for a duration to be specified by statute, set to be between 2 and 5 years.
In addition, anyone applying for financial relief following separation with their partner must prove that:
(i) their ex has retained a benefit in the form of capital, income or earning capacity which has been acquired, retained or enhanced
(ii) they have an economic disadvantage as a result of contributions which they made towards the couple’s cohabitation/ welfare of the members of their families. ‘Contribution’ is not limited to a financial contribution and the applicant may refer to future losses in this section. Also it seems that the claiming party does not have to show that their position was made any worse than it would have been owing to the fact that he or she cohabited. E.g., the party claiming might have already had the responsibility to look after a child or relative before he or she began to cohabit, or they might have had to pay for alternative living arrangements if they had not cohabitated.
The above however may be moderated by the Law Commission stating that the court would only reverse the retained benefit as far as it is reasonable and practicable.
If the applicant is still set to suffer an economic disadvantage following the reversal of the retained benefit, the court may make an order that the disadvantage be shared equally between the parties. In judging whether it is reasonable or practicable to reverse economic disadvantages or make any such orders, the court has regard to the following ‘discretionary’ factors:
(a) the welfare of any child involved who is under the age of 18 (this would be the court’s first consideration) but note it does not appear to be relevant whether the child is a natural child of the couple or was even treated as the other’s step-child.
(b) the financial needs and obligations of both parties
(c) the extent and nature of any financial resources which each party has or is likely to have in the foreseeable future
(d) the welfare of any children who live with, or might reasonably be expected to live with, either party- this seems to be the same as (a).
(e) the conduct of each party, defined restrictively but so as to include cases where a qualifying contribution can be shown to have been made despite the express disagreement of the other party
The LC also recommends that orders which demand the sharing of an economic disadvantage must never place the applicant in a stronger economic position for the foreseeable future, than the respondent (whether it was actually necessary for the LC to stipulate for this is questionable as it would seem to be implicit anyway).
The LC makes the following recommendations about how opting out will work:
(a) Opt-out agreements should be in writing, signed by the parties, and make clear the parties’ intention to disapply the statute
(b) Agreements that purport to disapply the statute but do not comply with these qualifying criteria should be of no effect when the statutory scheme is invoked
(c) Pro forma agreements should be made available for the use of cohabitants who wish to make opt-out agreements
(d) Parties should be able to enter into an opt-out agreement whether or not they are eligible cohabitants at the time that the agreement is made
(e) Minors should be capable of entering into opt-out agreements, but that such contracts should be voidable (in accordance with the general principles of contract law) at the instance of a party who was a minor at the time that the agreement was made
(f) A court should be entitled to set aside an opt-out agreement if its enforcement would cause manifest unfairness having regard to: (1) the circumstances at the time the agreement was made; or (2) circumstances at the time the agreement comes to be enforced which were unforeseen when the agreement was made.
What we can anticipate is that the Courts will very quickly create a scheme that will replicate the financial relief that is given following divorce with a presumption in favour of equal distribution of the acquired wealth for long term relationships, for the same reason it seems quite predictable that the Courts will readily disregard opt-out agreements which haven’t been updated in the case of long-term cohabiting couples. So, this will be marriage by the back door which oddly could be regarded as something of a turning back of the clock to the common law position as it stood before the Marriage Act 1753 when one could be married with minimal ceremony (which is where the somewhat misleading phrase “common-law husband/ wife” originates from).
Would introducing the Law Commission’s scheme be a change for the good?
Notably, the LC’s proposals may put those in abusive cohabiting relationships in a very difficult position, rather paradoxically to the LC’s intention. That is so in two ways:
i) Especially where an abusive partner is also the economically weaker party, these reforms will create a continuing frictional legal tie between the couple. It could make it harder for the financially stronger, abused party to leave, and more painful when they do leave. The quick clean break which may be best for both parties, will not be possible.
ii) Those who want to opt out of the LC’s scheme may feel unable to because of the potentially coercive control that their partner has over them. This is particularly true because the LC requires agreement between parties to opt out. The same goes in the opposite situation, one may be pushed to opt out of the scheme by their abusive partner when that is against their will. In fact, could the issue not arise even if the relationship is not abusive? It is somewhat awkward to discuss the prospect of breaking up with your partner directly with them, let alone to actively put provisions in place for when that potential break-up happens.
Thus, the choice to opt out of the LC’s scheme is not as free as it may appear; worrying when that is essentially the LC’s only defence to claims that the scheme is too radical to be introduced.
On top of that is the issue of when one should opt out, since not all couples that live together fall into the group of ‘cohabiting couples’. It is problematic that the LC has failed to define this term, for the sake of the Rule of Law. We must allow couples to know when the scheme applies to them and when to act if they want to opt out, especially given that its provisions are set to be so strong and intrusive. Though the LC states that couples which do not qualify may opt out nonetheless, the reality is that people will not bother to create a written agreement with their partner, and go through a possibly uncomfortable discussion about their future separation if they do not have to, in most cases anyway. So, should the Government introduce the scheme, we should expect a clear definition of ‘cohabiting couples’ to avoid this crucial issue. That task is not one to be envied, where do we draw the line between couples and “good friends” (with benefits). That is also a reason why couples themselves may not understand why and when they need to opt out. Nothing is so black and white nowadays.
The process of opting out should also be made accessible to all, to ensure that barriers such as a lack of access to internet service or educational needs do not mean that individuals are bound with financial obligations which they do not desire.
A false assumption made by the LC is that people have the ability to act in their own best interests, when they be in an emotionally complex situation, that is rarely true.
Overall, a key issue with the LC’s scheme is the uncertainty that it creates. People choose not to get married or enter civil partnerships. Who are we to impose all the pain and none of the pleasure of marriage onto them without provocation? What if the breakdown of the relationship came as a result of the person who is set to benefit from the financial provisions of the scheme? How are we to assess the extent of contributions which people made to their cohabiting couple? What will it take for the court to disapply an opt-out agreement?
Quite simply, there are too many unanswered questions. Nobody is forced into a cohabiting couple, and people ought to take responsibility for their own financial security… or get married!
A more fundamental criticism is that the law of unintended consequences may result in the reform achieving the opposite of what it intends. The reform may be the downfall of the family unit- to whatever extent that exists as it stands. Why take another person, or their child, into your home, when you might be landed with a big bill for your kindness? This will not be a good outcome for children, and may not be a good outcome for disadvantaged men and women. The LC report was written over a decade ago and does not take account of the phenomenon which is online dating and hook-up culture which mean that it is a realistic option not to form any serious relationships at all. Should the law encourage this development?
The government must protect vulnerable members of the community or educate them to protect themselves in a way which does not interfere with the freedom of all people in unmarried relationships. Of course the government may find these recommendations alluring in the present financial circumstances as they will act as a transfer of a welfare burden from the state to private individuals.