19 March 2019 - Article
On 8 January, I was fortunate to attend a debate co-hosted by The Sunday Times and The Marriage Foundation, the subject of which was ‘Is there a difference between marriage and cohabitation?' The five panelists, who included Sir Paul Coleridge, former High Court Judge and founder/chairman of the Marriage Foundation, were broadly in agreement: marriage and cohabitation are not the same.
It was also generally recognised that there are varying types of unmarried cohabitation. Some cohabiting couples, like those described by Sir Paul, meet at university and share an apartment following graduation but split up in their mid-20s; and others are in relationships lasting several decades, have children together but never marry. Where the panelists disagreed was on the issue of whether cohabitants and married couples should be treated in the same way in the eyes of the law when their relationships break down. For Sir Paul and Dr Samantha Callan of the Centre for Social Justice, the answer was an emphatic ‘No'. For the other panelists the answer was a qualified ‘Yes'. The latter supported legislative reform that would see a level of protection for cohabiting couples who meet certain qualifying requirements.
Currently, cohabitants have virtually no rights when their relationships end. They can potentially make claims in respect of property under the somewhat complex and esoteric rules of trust, contract and property law (where outcomes often hinge on the parties' intentions), and/or if they have children they can make applications on behalf of the children to the Child Maintenance Service and, in some cases, under Schedule 1 of the Children Act 1989. Given that statistics show that cohabitation is on the rise and that over half the population mistakenly believes cohabitants do have rights, many find themselves in a vulnerable, financially precarious position when their relationships end.
Resolution has put forward several sensible proposals for reform which would give some cohabiting couples certain rights upon relationship breakdown. They include:
- An automatic right to apply for certain financial orders on separation for those cohabiting couples who have lived together for a period of five years or who have a child (unless they specifically choose to ‘opt out').
- The financial orders would mirror those available to divorcing couples (for example property adjustment orders, lump sums and periodical payments) but on the presumption that claims should be limited to ‘reasonable needs', with no presumption of equal sharing of assets, but with the intention that the parties should be financially self-supporting as soon as possible.
- In assessing claims, the court would have to consider all the circumstances of the case, including level of commitment, financial and other contributions made during the cohabitation and apply the principle of fairness, whilst ensuring that the welfare of any children are treated as the first priority.
These proposals not only recognise the fact that cohabitation is not the same as marriage, but also pay due regard to the fact that not all cohabiting relationships are equal. The proposals also make provision for those couples who actively decide not to marry and wish to opt out from any financial obligations.
The case for reform: do it for the kids
Everyone at the debate agreed that children need to be protected and that couples needed to be better informed. In every break up, one party is invariably left more financially vulnerable than the other, and it is often the parent with primary care for the children. The inadequacy of the law often results in financial hardship for these parents (often women) and, consequently, privation for their children. I am not convinced that the best way to protect these children is to promote the benefits of the institution of marriage at the expense of enacting legislation for cohabitants, because even supposing that marriage is the best, most stable form of family structure, it does not follow that those who do not marry for whatever reason and their children should be deprived of a fairer outcome.
If everyone agrees that children should to be protected, then we ought to be promoting reforms which combat some of the devastating effects of family breakdown by providing qualifying cohabiting couples with certain financial protections. I do not support the proposition that enacting these reforms will lead inevitably to the decline of marriage because I am not aware of any empirical evidence from countries where there is such legislation that bears it out; it is not a zero-sum game.
Whether cohabitants actively choose not to marry or whether cohabitation is something they ‘fall into', it is essential that they are aware of the fact they may have no rights whatever if they separate in the future. If a couple is thinking of cohabiting it is important they consider the legal implications, especially if they plan to purchase a property together or intend to have children, as certain safeguards can be put in place and they should take steps to protect themselves at the outset, because legislative reforms are still a fair way off.