On Tuesday, 10 October 2023, Shadow Attorney General Emily Thornberry MP announced that the Labour Party intended to review the law relating to cohabitation with a view to introducing reform. This is welcome news and was received positively by Resolution and many academics that have campaigned tirelessly over the years for a much-needed change in the law. Jo Edwards, Chair of Resolution’s Family Law Reform Group, remarked that it was a ‘hugely welcome development and one that should be welcomed by cohabiting couples, together with practitioners who see the significant financial hardship caused by our current, out of date law’ – see here. Similarly, Graeme Fraser, Chair of Resolution’s Cohabitation Committee, commented that it was a ‘welcome step’ and that he hoped ‘all parties will commit to reforming the law in this area, which is long overdue and currently leaves millions of couples at significant financial risk’.

I fully share Resolution’s enthusiasm and genuinely hope that after years of political dithering and abortive starts meaningful change will occur. But rather than articulating the case for cohabitation reform – a case that most readers of this journal would accept has been won – this post reflects on what such reform might look like. Drawing upon insights from comparative family law, it explores and contrasts two different models of cohabitation reform and will highlight how they have been received in practice.

The announcement itself

Before looking at the reform possibilities, Labour’s announcement needs to be considered. Labour’s commitment to reform was part of Thornberry’s speech entitled ‘Making the Law Work for Women’. The full text of the speech is available here. Given the title, the theme underpinning the speech was righting the historical injustices inflicted upon women over the years. Cohabitation reform was one of three areas identified for treatment alongside sexual harassment at work and stalking. The key passage of the speech relating to cohabitation was as follows:

‘For too long, women in co-habiting couples have been left with no rights when those relationships come to an end. If there is no joint property or shared parental dues, a man can leave his partner with nothing, especially if he has the means to take it to court and – thanks to the Tories – she does not.

It is time we reviewed this issue in England and Wales, just as it has been in New Zealand, Scotland and Ireland. No woman should be forced to get married or stay in an unhappy relationship, just to avoid ending up on the street … And no woman should have to hope for the best when it comes to keeping a roof over her head.’

There is much to unpack from this statement but, from the outset, it is welcome that it echoes the key findings of the Women and Equalities Committee Report on the Rights of Cohabiting Partners that emphasised cohabitation reform is a gendered issue – available here. While reform would benefit both men and women, relationship-generated disadvantage tends to negatively impact women more than men, particularly those caring for children. The current law was found to discriminate against homemakers by the Law Commission in 2002 in their Sharing Homes Project and in 2013 Toulson LJ acknowledged in Curran v Collins that ‘law of property can be harsh on people, usually women’. More recently, this dimension was emphasised in evidence submitted by Resolution in 2022 to the Women and Equalities Committee Inquiry – available here. They noted that:

‘Resolution’s members encounter many individuals, often female, left unprotected by the current law, even after very long relationships during which they raised the children of the relationship. Of those who responded to member surveys in 2017 and 2019 63% and 67% respectively said that in their experience this is an issue where women lose out more often than men (3% said more men lose out than women, and 25% said it seems roughly even).’

Thornberry is also correct to raise the issue of power imbalances within interpersonal relationships. Upon separation, relationship-generated disadvantage arises owing to the way the couple structured their affairs and this is often conditioned by societal pressures or expectations. Remember that statistically women continue to provide more childcare than men and are more likely to work part-time, which in turn has a knock-on effect on salaries and career progression – see here. Anna Heenan’s research showed that female cohabiting partners tend to view their own contributions as less valuable than their male counterparts – see here. But rather than the current law providing a safety net, it instead can be exploited by a financially stronger party based on the way the relationship was structured and performed. As Thornberry notes, there is clear potential in some instances for one party to be ‘left with nothing’.

The value of comparative family law

Another welcome feature of the announcement is Thornberry’s recognition that looking to the experience of other jurisdictions is needed. When it comes to cohabitation reform, there are many ways of skinning the proverbial cat. And the value of this exercise cannot be understated – we can learn from the experience of other countries and hopefully avoid making their mistakes.

The first point to note is that a reform that merely tweaks the general law is simply not good enough. While cohabitants are not always left with nothing and context-specific protections do exist in England and Wales, they are not comprehensive and provide little meaningful protection upon separation or death. So, the first step is to commit to meaningful family law-based reform. While the precise shape of Labour’s proposed reform is yet to be announced, Labour appears keen on this.

The second consideration is that relationship registration is also not the answer. Some countries like France and Belgium have registered partnership regimes conferring upon couples lesser entitlements whereas others such as the Netherlands have regimes conferring the same rights as spouses – see here. Our own regime, civil partnerships, falls into the latter category. Given the prevalence of cohabitation and the widespread incorrect belief that living together makes you a ‘common law spouse’, promoting civil partnerships as a solution or introducing a new registration regime conferring lesser rights on ‘registered cohabitants’ are not effective reform options (see Andy Hayward, ‘The Steinfeld Effect: Equal Civil Partnerships and the Construction of the Cohabitant’ (2019) 31(4) Child and Family Law Quarterly 283). While some couples might register, many will not. Indeed, some might not register because they incorrectly believe they are already protected as ‘common law spouses’.

After accepting this, we then encounter a fork in the road. One signpost would direct us towards ‘assimilation’ (see Joanna Miles, ‘Unmarried Cohabitation in a European Perspective’ in Jens M. Scherpe (ed.), European Family Law Volume III: Family Law in a European Perspective (Edward Elgar Publishing 2016)). This route would lead us to the territory of the de facto regimes that exist in Australia and New Zealand. At a generalised level, once a cohabitant satisfies a statutory definition, they then would be treated just like a spouse. Transposed into the English context, once a separating couple falls within a statutory definition of cohabitation, Part II of the Matrimonial Causes Act 1973 would become accessible to them and their assets would be divided on the same basis as spouses.

The other signpost would read ‘difference’ and if we embarked upon this route we would end up in a rather different destination. Under this model, exemplified by Scotland and Ireland, cohabitants are not treated in the same way as spouses or civil partners. Rather the financial consequences of relationship breakdown or death would be dealt with using a separate statutory regime containing different eligibility criteria, different redistribution principles and potentially different remedies. In the English context, this could potentially involve a new Cohabitation Act, whereby once a separating couple qualifies under that Act they would have their assets divided based on different principles and also be likely to receive less generous financial remedies.

How these models work in practice

The assimilation model

The assimilation model has much to commend it, and it is perhaps unsurprising that it has found support among academics and members of the judiciary. The beauty of this model is its simplicity. It would involve a relatively straightforward amendment to the Matrimonial Causes Act 1973 with qualifying cohabitants accessing that well-established regime, albeit via a different door to spouses. Rather than tying ourselves in knots as to what rights cohabitants should not receive or what should be reserved exclusively for spouses, we would allow certain cohabitants access to a legislative framework that has worked relatively well for decades. There are difficulties though – what types of cohabitants should benefit and what about the institution of marriage? The last point can be dismissed first. Studies have shown that introducing cohabitation reform, even on a de facto basis, does not have a direct impact on the marriage rate (see Kathleen Kiernan, Anne Barlow and Rosangela Merlo, ‘Cohabitation Law Reform and its Impact on Marriage’ [2006] Family Law 1074). Indeed, reform based on assimilation is premised on the fundamental fact that many cohabiting couples function just like married couples, sharing their lives, wealth, and the care of their children.

A trickier question is what type of cohabitant should benefit. These schemes tend to operate with a statutory definition of a qualifying cohabitant, sometimes supplemented by a checklist, and a set of eligibility criteria. In terms of definition, you might use a marriage comparator for ease – e.g. ‘live together in a marriage-like relationship’ (see Western Australia’s Family Court Act 1997, s 205Z) or ‘live together as a couple in a relationship in the nature of marriage or civil union’ (see New Zealand’s Legislation Act 2019, s 14). Alternatively you could apply a more neutral definition – e.g. ‘couple living together on a genuine domestic basis’ (see Commonwealth Australia’s Family Law Act 1975, s 4AA(1)) or ‘live together as a couple’ (see New Zealand’s Property (Relationships) Act 1976, s 2D(1)). A further list of factors or criteria can be deployed to assist the courts in this exercise, perhaps with a qualification that not all need to be present before a relationship can be recognised or with an acceptance that the list is non-exhaustive. In Australia satisfying the definition is a question of fact and not an exercise of judicial discretion.

Eligibility or qualifying criteria add further refinement too. Most de facto regimes require a couple to have cohabited for a period of time e.g. two years (Australia) or three years (New Zealand), or to have had a child together. Further eligibility criteria can be added and in certain Australian states and territories, for example, couples can also register their relationship or bring a claim after one party has made ‘substantial contributions’ to the parties’ assets or the welfare of the family and the failure to make an order would result in a ‘serious injustice’ to that party. Similarly, in New Zealand relationships under three years can be covered provided the applicant has made a substantial contribution to the relationship and the court is satisfied that failure to make an order would result in serious injustice.

The key point is that irrespective of the precise definition or eligibility criteria adopted the courts can filter claimants. They can recognise the relationships deemed deserving while excluding those that are not. These eligibility criteria act as a useful gateway for couples and prevent rapid access to strong remedies. Remember that in Australia once a cohabiting couple is recognised as de facto partners the full range of remedies used by spouses is available. Likewise, in New Zealand, the Property (Relationships) Act 1976 would kick in and couples can then access a deferred community of relationship property. In Australia couples are ordinarily required to make an application within two years of relationship breakdown (Family Law Act 1975 (Cth), Section 44(5)) and this limit increases to three years in New Zealand under the Property (Relationships) Act 1976 s 24(1).

The assimilation model is not without criticism. Uncertainty arises as to proving the existence of a de facto relationship – e.g. start date, breaks in continuity, end date – and concerns exist as to public understanding of how to disapply the regime e.g. opt-ing out. For balance, the former is a concern that is equally applicable to difference based regimes. But, crucially, while amendments have been proposed for both regimes, they have become established and widely accepted in both countries. Indeed, a study conducted in 2018 in New Zealand noted:

‘There is high public awareness and general support for equal sharing of relationship property following separation. This indicates that New Zealanders are generally satisfied with the fundamental premise of the PRA and that, after 42 years, equal sharing is firmly embedded in the Kiwi mindset.’

The difference model

In contrast, the difference model has strengths particularly for those anxious to maintain a distinction between cohabiting relationships and spouses/civil partners. The motivation for this may differ – some may favour a difference model because they believe marriage should be promoted (and privileged financially) whereas others might take a more principled stance believing that cohabitants are, by their very nature, different from spouses so should not be treated the same.

The difference model would see cohabitants protected albeit using a separate statutory regime. Like the assimilation model there needs to be a relevant definition and, in some instances, eligibility criteria. Some regimes may use a marriage comparator. That is the case currently for Scotland that requires, under s 25 of the Family Law (Scotland) Act 2006, couples to be ‘living together as if they were husband and wife’ or ‘living together as if they were civil partners’. Note, however, that the Scottish Law Commission has recently recommended the removal of this marriage comparator and its replacement with ‘living together as a couple in an enduring family relationship’ believing the current definition to be out-dated, vague and circular – see here. Ireland, in contrast, uses a neutral definition of ‘living together as a couple in an intimate and committed relationship’ (see the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, s 172(1)). Both Scotland and Ireland have a list of additional factors that can be considered to determine whether a couple falls within the scheme.

Curiously, in Scotland, there are no further eligibility criteria. There is neither a minimum duration period for cohabitation nor a requirement for a child (although, in practice, short or transient relationships are unlikely to satisfy other aspects of the scheme). Ireland is more consistent with Australia and New Zealand. Once a couple falls within the definition under the Irish regime, they must satisfy further eligibility criteria to become ‘qualifying cohabitants’; namely living together for ‘2 years or more, in the case where they are the parents of one or more dependent children’ or living together for ‘5 years or more, in any other case.’

Unlike assimilation-based schemes where the financial remedies regime for spouses would then become accessible, difference-based schemes involve satisfying further requirements before a claim is successful. In Ireland, for example, the applicant must show they are ‘financially dependent on the other cohabitant and that the financial dependence arises from the relationship or the ending of the relationship’. Only after that point can the court make any order requested, provided they are ‘satisfied that it is just and equitable to do so’. This is done by reference to a set of non-hierarchical factors, with certain factors used in the context of divorce such as the standard of living or the accommodation needs of the parties explicitly removed. There is then a preferred hierarchy of orders available with compensatory maintenance at the top, followed by pension adjustment and then property adjustment.

The approach in Scotland is also different and discussed here. It is premised on the concept of demonstrating economic advantage and disadvantage flowing from contributions made to the relationship. Contributions are broadly defined and can include looking after children. The range of remedies is heavily restricted and there is a strict one-year time limit for couples to bring a claim following relationship breakup.

While the difference model might be more politically palatable than the assimilation model, the experience of Scotland and Ireland reveals that caution should be exercised. The reason is that a strong desire to differentiate the regime from marriage sometimes renders it overly rigid, artificial, and difficult to apply in practice. For example, in Scotland several aspects of the regime have received criticism such as the use of the marriage comparator, the s 28 economic advantage/disadvantage test, the limited menu of orders and the strict one-year time bar for bringing claims post separation. We are now awaiting the Scottish Government’s response to the reform recommendations made by the Scottish Law Commission in 2022.

Similarly, in Ireland, the tightly defined eligibility criteria and financial dependency filter has meant that very little case law has been generated. Only eight reported cases exist and most of those are for claims unrelated to relationship breakdown (see Kathryn O’Sullivan, ‘Cohabitant Protection on Relationship Breakdown in Ireland: A Lesson in Illusory Justice’ (2023) International Journal of Law Policy and the Family).

Where next?

Labour’s announcement is a very welcome development, and it is hoped that all political parties will now see cohabitation reform as a key priority. It is also great that cohabitation reform will be ‘an important cornerstone’ of Resolution’s Vision for Family Justice, which will be launched at the end of November. Comparative family law will play a vital role here and it is essential that academics and practitioners push for evidence-based reform that is appropriate for England and Wales. Afterall, we’ve waited so long, it makes sense to get it right.

Dr Andy Hayward, Associate Professor in Family Law, Durham Law School. Andy acted as Specialist Adviser to the Inquiry. The views expressed here are in his personal capacity as an academic and should not be taken to reflect those of the Committee.