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The Legal Limbo of Cohabitants: Time for Reform?

Comment & OpinionThe Legal Limbo of Cohabitants: Time for Reform?

By Sophia Gonella, Pupil Barrister at Queen Elizabeth Building

Introduction

The promise of cohabitation reform has, once again, been thwarted by the government. On 1 November 2022, it published its response to the Women and Equalities Committee Rights of Cohabiting Partners Inquiry Report,[1] in which it rejected most of the key recommendations of the report, frustrating any attempts to provide statutory legal protection to cohabiting couples. In an unpersuasive response, the government proffered a hazy explanation for its approach, which largely sidestepped the issues and emphasised that existing work on the law of marriage and divorce must conclude before it would consider cohabitation reform. The response itself reveals an inherent unease with reform in this area, despite the measured proposals put forward by the Women and Equalities Committee. This comes as disappointing news to many, who recognise the precarious financial position that cohabitants find themselves in when they separate.[2]

An Overview of the Current Framework

The legal framework supporting cohabiting couples is in dire need of reinforcement. At present, 3.6 million couples cohabit. Worryingly, approximately 47% of these people believe that this constitutes a ‘common law marriage’.[3] This is the erroneous belief that living together generates the same legal entitlements available to spouses and civil partners.[4] However, this is not the case.

Married couples and civil partners may apply for financial relief following separation. This is supported by a statutory framework[5] which offers legislative guidance and gives the court broad powers to redistribute the parties’ assets and property. A key objective of this is to achieve fairness.[6] The court will consider a range of factors, including the needs of the parties, the principle of sharing and, occasionally, compensation for any relationship-generated disadvantage.

However, unlike married couples and civil partners, couples who choose to cohabit do not have the same statutory recourse. This is notwithstanding that they often have the same level of financial interdependence and asset pooling. Instead, they are forced to rely on general principles of contract, property and trusts to resolve property disputes that may arise. The trusts of the family home framework is central to property ownership disputes between cohabitants, yet it is flawed. Parties may apply to resolve their dispute under Trusts of Land and Appointment of Trustees Act (TOLATA) 1996, which imports this trusts framework. If there is no express trust of land effected by the cohabiting parties,[7] implied trusts are utilised to effect the intentions of the parties, if they are present. The most common trust of the family home is the constructive trust, which establishes, and then quantifies, a beneficial interest. To acquire a beneficial interest, a claimant must establish a common intention between the parties to share the property, deduced ‘objectively from their conduct’[8] or evidenced by a direct financial contribution to the acquisition of the property. Following this, the courts will calculate how much that beneficial interest is worth.

Non-moneyed parties, many of whom are women, often fail to meet the sky-high hurdle for acquiring this beneficial interest. The primary reason for this is that establishing conduct which evidences a mutual intention for the property to be shared is incredibly difficult. Rarely do couples wish to cloud the joys of moving in together with a word-perfect discussion as to how the property would be shared if they split up. Real relationships are less clear-cut (unless perhaps they are both lawyers)! Secondly, the requirement of direct financial contribution fails to value domestic contributions and homemaking tasks. This overlooks indirect financial contributions[9] and important (non-financial) domestic contributions that make a house a home. This disadvantages women, who have historically undertaken domestic duties in lieu of employment and so they have been limited in their ability to pay for the home directly.[10] With 47% of individuals believing in the ‘common law marriage’ myth, it is likely that many non-moneyed cohabitants, including women, will act to their detriment through undertaking the homemaking role at the expense of their career, mistakenly believing that they are adequately protected upon separation.

Moreover, the current scheme renders cases uncertain. As Resolution have noted, the ‘outcome of such litigation is far from certain and highly case specific’.[11] This is, in part due to the high level of discretion involved. Whilst it offers flexibility, it lacks predictability. Without a structured statutory framework, courts are left to draw upon principles that have been developed in the microcosms of unique and fact-specific cases. This creates difficulty in creating and applying broad principles. To make matters worse, the modern framework is a product of a drawn-out, incremental development process. This piecemeal shaping of the law has meant that it is fragmented and as a result, it lacks coherence. Even the judiciary have admitted themselves that they can only go so far[12] and that further evolution of this law will have to come from Parliament. Clearly, considering the government’s response, this is no longer on the cards in the imminent future.

Whether married or not, domestic relationships play a fundamental role in the choices, circumstances and consequences involved in property ownership. Despite the entanglement of assets that comes with such relationships, rarely is the future of the family home stipulated in a formulaic contract. Couples meet, fall in love, move in together, and give little thought to the regrettable prospect of separation. Even still, almost half of cohabitants think that they possess legal protection equivalent to that resulting from marriage. Yet they are offered very limited legal protection upon separation. This exposes them to financial uncertainty and, often, economic detriment as a result of relationship-generated disadvantage. For this reason, maintaining the status quo is untenable and reform is urgently needed.

Recent Government Response to Reform

As a result of the dissatisfactory framework, lack of a statutory scheme and the dangerous ‘common law marriage’ myth, reform is sought. The latest push for reform came in the Women and Equalities Committee’s ‘The rights of cohabiting partners’ report. However, the recommendations within the report, which were the product of an inquiry launched in 2021, have suffered a blow by the government in its response, which largely rejected the key proposals. Caroline Nokes MP, the Committee Chair, stressed that it was ‘deeply disappointing that the Government has closed off the possibility of better legal protections for cohabiting partners for the foreseeable future’.[13]

The report, which was published on 4 August 2022, made six recommendations:

  • The Government should conduct a public awareness campaign to highlight the legal distinctions between getting married, forming a civil partnership, or choosing to live together as cohabiting partners;
  • The Government should undertake a targeting information campaign aimed at women in religious communities where religious-only marriages are commonplace, highlighting the risks of not having a ceremony which meets legal formalities. Such a campaign will need to consider the Law Commission’s recommendations for weddings law reform;
  • The Government should reform family law to better protect cohabiting couples and their children from financial hardship in the event of separation. We recommend an opt-out cohabitation scheme as proposed by the Law Commission in its 2007 report on the financial consequences of relationship breakdown. The Government should make a commitment to publishing draft legislation for pre-legislative scrutiny in the 2023–24 Session of Parliament. In the meantime, the Ministry of Justice should commission a refresh review of the Law Commission’s 2007 proposals to see if they need updating;
  • The Government should immediately implement the Law Commission’s 2011 recommendations concerning intestacy and family provision claims for cohabiting partners;
  • The Government should immediately publish clear guidelines on how pension schemes should treat surviving cohabiting partners, including what those partners are entitled to, and what evidence they will need to access survivor’s pensions; and
  • The Government should immediately review the inheritance tax regime so it is the same for cohabiting partners as it currently is for married couples and civil partners.

The main thrust of the report urged the government to consider affording greater legal protection to cohabiting couples. This involved an opt-out scheme and a fresh framework for family provision and intestacy claims for cohabiting partners. This would provide a safety net for cohabiting couples, offering them guaranteed legal protection. Whilst the report stressed the need for a public awareness campaign, particular emphasis was placed on the opt-out scheme to ensure that people are not disadvantaged simply because they lack understanding of this complex field. This was previously proposed by the Law Commission in its 2007 report.[14] The Committee was careful not to suggest that cohabitation should be legally equated to marriage, and Graeme Fraser of Resolution stressed that there should be a ‘specific, defined, cohabitation laws with cohabitation law remedies’ that reflect this family type.[15]

However, the government said that any substantive reform would not be achievable until a review of financial remedies law has been undertaken. This was supposedly because any new legal rights afforded to cohabitants would need to be considered in light of the rights afforded to married couples and civil partners. This response shows a failure to meaningfully engage with the issues at hand. Any potential law reform of financial remedies has no bearing on cohabitation reform. Caroline Nokes MP emphasised that this ‘relies on flawed logic’[16] in that they are separate areas of family law. Not only is financial remedy reform irrelevant but prioritising this over cohabitation reform will mean a significant delay, exposing a growing number of cohabitants to economic vulnerability.

The government did, however, accept several light-touch measures, including a commitment to publish clear guidelines on how pension schemes should treat surviving cohabiting partners and a partial acceptance of a public awareness campaign. Yet the response as a whole reflects a trend of kicking the can down the road, exhibiting great reluctance to engage with the issues at hand.

Where now for cohabitation reform?

Cohabitation reform has persistently been put aside over recent years, despite the fact that it is in urgent need of a reshape. Regrettably, the current scheme is not fit for purpose. Whilst it is disappointing that the government has largely rejected substantive reform proposals, the inquiry and the report has garnered increased attention from academics and practitioners. It is hoped that, as a result, this momentum for change can continue as we strive towards achieving a more stable and protective legal framework for cohabitants.

Sophia Gonella, Pupil Barrister at Queen Elizabeth Building

[1] Ministry of Justice, The rights of cohabiting partners: Government response to the Committee’s Second Report (HC 766).

[2] Andrew Hayward, ‘Evaluating the Government’s Response to the Women and Equalities Committee Rights of Cohabiting Partners Inquiry’ Financial Remedies Journal blog (7 November 2022).

[3] ‘Almost half of us mistakenly believe that common law marriage exists’, NatCen Social Research, 22 January 2019.

[4] Rebecca Probert, ‘Common law marriage: myths and misunderstandings’ (2008) 20 CFLQ 1.

[5] Matrimonial Causes Act 1973, Part II; Civil Partnership Act 2004, Schedule 5.

[6] White v White [2001] 1 AC 596.

[7] Law of Property Act 1925, s53(1)(b).

[8] A Bottomley, ‘Women and Trust(s): Portraying the Family in the Gallery of Law’ in S Bright and J

Dewar, Land Law: Themes and Perspectives (OUP 1998).

[9] Buggs v Buggs [2003] EWHC 1538 [48]-[49].

[10] Clare Chambers, Against Marriage: An Egalitarian Defence of the Marriage-Free State (1st edn, OUP 2017).

[11] House of Commons Women and Equalities Committee, The rights of cohabiting partners (HC 92, 2022) [HAB0238].

[12] Burns v Burns [1984] Ch 317; [1984] 1 All E.R. 244.

[13] Women and Equalities Committee ‘Government rejects call to reform law for cohabiting partners’ (1 November 2022) < https://committees.parliament.uk/committee/328/women-and-equalities-committee/news/174029/government-rejects-call-to-reform-law-for-cohabiting-partners> (accessed 2 November 2022).

[14] Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307, 2007)

[15] House of Commons Women and Equalities Committee, The rights of cohabiting partners (HC 92, 2022).

[16] Women and Equalities Committee ‘Government rejects call to reform law for cohabiting partners’ (1 November 2022) < https://committees.parliament.uk/committee/328/women-and-equalities-committee/news/174029/government-rejects-call-to-reform-law-for-cohabiting-partners> (accessed 2 November 2022).

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