The introduction of no-fault divorce in England has been a significant change and a sign of the law catching up with, and meeting the needs of, modern society. But there is still some way to go when it comes to family law reform. We have been actively involved in raising the profile of the needs of separating cohabiting couples throughout our collective 50 year careers, and have always been concerned by the extent to which they are overlooked by legislation. This problem is likely to impact on an increasing number of people within our society given the recent figures from the Office of National Statistics confirming that Marriage rates for opposite-sex couples have fallen to their lowest on record since 1862.
I (Michael) recently participated in the Inquiry by the UK Parliamentary Women and Equalities Committee on rights of those who live together outside marriage, to add my voice to the long overdue need to reform the legal position of cohabiting couples in England and Wales. Since the Law Commission’s clear recommendations for law reform back in 2007, and in contrast to progressive laws adopted in other jurisdictions (notably, Australia, Canada, Scotland and most recently Ireland), successive governments have spurned the opportunity to introduce legal protection for cohabitants.
Any (minor and narrow) reforms in the interim have been instigated by courageous individuals bringing claims to highlight the inadequate protection and provision the law provides. For example:
- Following Jacqueline Smith’s claim against the Lancashire Teaching Hospitals NHS Foundation Trust and others ( EWCA Civ 1916), the Fatal Accident Act was amended to provide that a cohabiting partner may be eligible for bereavement damages.
- Similarly, following claims brought by Siobhan McLaughlin and James Jackson, the Department for Work and Pensions has since announced plans to extend bereavement support to cohabiting couples with children.
However, there remains a pressing need for wholesale reform of the law for cohabitants, which is why the current Parliamentary inquiry is an important step to bringing these issues back to the attention of a government who have the power (but not yet the inclination) to bring about legislative change.
In the absence of legal reform, increasing public awareness is essential as unfortunately all too often people do not appreciate the implications of remaining unmarried. In January 2019 NTCen published findings from the British Social Attitudes Survey which revealed that 46% of people mistakenly believe in the extinct concept of common law spouse (supposedly, and erroneously, equating the same rights to unmarried couples as to married couples). It is alarming that the proportion increases to 55% for households with children. This concerning gap in knowledge needs to be addressed.
Where are the gaps in the law for cohabitants?
Two important areas where cohabiting couples require protection are (a) on relationship breakdown and (b) on death. Due to the lack of statutory protection, when a cohabiting couple separates, regardless of the length or nature of their relationship, there are no legal rights arising out of that relationship. If there are dependent children, the person with care of those children can make a claim against the other for financial provision, but it is limited to what is required for those children and terminates on the end of their dependence. A couple who have been together for decades and whose children have since grown up will not have any legal claims against each other in respect of that relationship or those children.
The facts of a recently reported divorce case (E v L ) highlight the stark disparity in financial terms between those who choose to marry and those who don’t when the relationship breaks down. In that case, the couple had been married for a little over 2 years and had no children together. The total assets were £9.2m and on divorce the wife received a settlement of c£2m. At the start of the judgment there was a passing reference to the husband’s children from a previous unmarried relationship. His cohabiting partner of 27 years would have had no financial claims on the breakdown of their relationship.
Similarly, on death, a cohabiting partner has no automatic entitlement in the event that their partner dies intestate (without having made a valid will) and whilst they can make a claim through the court it will likely be an expensive and arduous endeavour. Unlike for spouses, there is no inheritance tax exemption for cohabitants which means that the tax implications without appropriate life insurance in place can be punitive.
What can be done?
The best advice to give those already in, or embarking on, a cohabiting relationship is to take advice from a solicitor as to how to protect their position. They should ensure that they have valid wills, and that (if relevant) they have nominated each other with regard to pensions and life insurance. They should also consider entering into a ‘living together’ agreement, setting out what should happen in the event of separation – in particular as regards the ownership or occupation of any property in which they live together. Small important steps taken early can save significant disputes and potential injustice later.
To find out more about cohabitants’ rights and important measures that can be taken, we recommend the Podcast we ran with Mariella Frostrup last year here.