Opener

Harry Benson

Divorce law, in principle at least, seems pretty sensible. You keep what you brought into the marriage and share what you gained. At least that’s my limited understanding, courtesy of my colleague former High Court Judge Sir Paul Coleridge. So why shouldn’t the same or similar rights and responsibilities apply to cohabiting couples who have shared a life together? It doesn’t seem fair that one party can sacrifice their career to bring up children, for example, and discover they are left with nothing when the other party runs off with all the cash.

I sympathise greatly with the family lawyers who wrestle with this injustice. Indeed, I even have personal experience of it happening in my own family, in this case to a man who was booted out of the home in which he’d lived for 25 years when his partner died.

Yet I don’t believe we should right this apparent wrong. The second order effect is what I’m concerned about, where the secondary consequences end up as far more significant than the primary consequence, and not in a good way.

My own expertise is not law but the psychology of commitment. Yes, a change in the law might resolve the obvious injustices that primarily affect a relatively small number of adults. But it would very likely exacerbate already endemic levels of family breakdown that primarily affect a relatively large number of children.

Graeme Fraser

Resolution’s arguments for reform were endorsed by the parliamentary inquiry in 2022 (for the report itself, please go to https://publications.parliament.uk/pa/cm5803/cmselect/cmwomeq/92/report.html) which concluded as follows:

‘The current law applicable to cohabitants on relationship breakdown can be costly, complicated and unfair. Complex property law and trusts principles often require the financially weaker partner – often women – to demonstrate direct financial contributions to the acquisition of the family home, while childcare and other non-financial contributions go largely unrecognised.’

Last October, Shadow Attorney General Emily Thornberry announced the Labour Party’s intention to review the law relating to cohabitation with a view to introducing reform. At Resolution’s parliamentary launch of their ‘Vision for Family Justice’ last November, she emphasised the importance of cross-party initiative when committing and calling for reform.

In light of this, it is important to be clear that any questions about cohabitation law reform are no longer ‘whether’ but rather ‘how’ the law should be changed; and the question of ‘how’ is particularly important as the UK gears up for a general election, after which we should expect significant change to the political landscape.

How many people are affected by the lack of a specific legal regime for cohabiting couples?

Harry Benson

It is often stated that this is a huge and growing problem because over 3 million cohabiting couples lack the protection of the law. It isn’t. This is a problem that affects a far smaller minority of couples, involving the combination of significant money and a long-term relationship. Scotland illustrates the point well. After Scotland passed a cohabitation law in 2006, a University of Edinburgh study found some 1,000 couples sought legal advice in the first 4 years. That’s 250 couples per year. Half of these had children. So that’s 125 cohabiting parents per year seeking justice. Scaling this up, the equivalent in England and Wales would be some 1,250 cases per year.

Now look at the children whose parents split up. Based on my analysis of Millennium Cohort Study data, which aligns with similar figures from the Children’s Commissioner, 46% of teenagers in the UK are not living with both natural parents. Of these, 15% had parents who were married and 31% unmarried. Now take that 31% risk and multiply by the 605,000 births in the most recent year. This means that on current trends, 85,000 newborns will experience the break-up of their married parents and 193,000 children will experience the break-up of their unmarried parents. Go back to the 1970s before cohabiting became a thing and divorce rates were very similar to what we see today, many or most of those additional 193,000 children are the product of our trend away from marriage.

Whatever the strengths and weaknesses of this comparison, the perspective is what’s important. For every adult facing a social injustice because they lack legal protection, there are more than 150 children who have experienced family breakdown in a family where there was no marriage.

Graeme Fraser

Legal rights and responsibilities for cohabitants on separation are urgently required due to the demographics that indicate the number of families affected. In 2022, cohabiting couple families accounted for almost 1 in 5 families in the UK, with the 3.6 million opposite-sex cohabiting couples being the fastest growing family type over the last 10 years. Having increased from 16% of all families (2.9 million) in 2012, the increase of c.700,000 families accounted for almost three-quarters of the total growth in the number of families over the 10-year period. We expect the number of cohabiting couple families to rise to 1 in 4 by 2031. Additionally, since 2022, over half of births are to unmarried parents. In this context, this significant proportion of the population can no longer be ignored and reform must be a priority.

Resolution members have considerable experience and awareness of the problems created by the vulnerability of cohabitants under current law. In a survey of over 200 members in 2017 asking about their experience of working with people in cohabiting relationships, 98% of respondents reported having worked with cohabiting couples they were unable to help due to a lack of legal protection. A member survey in 2019 gave similar results. A further survey in late 2022 (to inform Resolution’s ‘Vision for Family Justice’) indicated that 85% agreed that the law in this area needed updating in response to the question: ‘If one party has been the stay at home parent whilst the other is the breadwinner, why should it be right that the main carer leaves the relationship with potentially far less than the breadwinner?’

It is also clear that the difficulty arises for women 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 in their experience this is an issue where women lose out more often than men.

In terms of translating these numbers into the number of cases, I agree with Harry that the number of cases in Scotland (and indeed Ireland) where reform has been introduced is limited, but this is because the law reforms being proposed are themselves limited, with a view to rooting out the worst injustices under the current law, and ensuring that those left most vulnerable on relationship breakdown are protected under the law.

I note the argument that marriage means that there is less chance of a relationship between a couple breaking down. However, it is becoming increasingly clear that many couples do enter committed and stable relationships without going through the formality of marriage or civil partnership. Additionally, how can it be right or fair that the children of unmarried families fare so much worse than the children of married couples?

Is it paternalistic to impose a cohabitation regime (even if there is an ‘opt out’)?

Graeme Fraser

Government and parliamentarians have a responsibility to address the discriminatory impact of our outdated law relating to cohabiting partners and to bring the rights and responsibilities of couples living together into the 21st century. Resolution’s members encounter many individuals, often female, who are often the financially weaker party, left unprotected by the current law, even after very long relationships during which they raised the children of the relationship. Furthermore, those of an age who are most likely to be affected by the lack of legal protection are also most likely to believe that ‘common law marriage’ exists. Unlike many other countries, including much of The Commonwealth, we have not changed the law to tackle this situation.

Cohabiting couples currently have little legal protection when they separate. A legal framework of rights and responsibilities when couples who live together split up is needed to provide some legal protection and secure fair outcomes at the time of a couple’s separation. Trusting in non-existent ‘common law’ rights and protections can put couples, and their children, at a significant disadvantage if the relationship breaks down or one party passes away. People face inequality as well as financial hardship and emotional distress because the law has failed to keep in step with the reality of how many families live their lives.

The reality is that despite encouragement and support for the ‘opt in’ approaches of marriage and civil partnerships, changes to the way that couples choose to live their lives by being in cohabiting relationships means that those most disadvantaged by the relationship, typically women who have given up work to look after the children, will never be able to secure fairer rights and hold their partners to the responsibilities they should be held to account to if we are to have more up to date laws that are fit for purpose. Most people don’t write down life changing decisions such as who will run the home and who will be the main wealth generator, because these roles evolve in an unspoken way. It is in fact paternalistic to say otherwise.

Harry Benson

There are some obvious philosophical arguments against applying the same, or similar, or even watered down, rights to cohabiting couples as to married couples.

The first is that it’s illiberal and infantilising to impose arbitrary ‘opt-out’ laws on consenting adults who have agency to access ‘opt-in’ laws for themselves. The law, and protection it provides, is easily and cheaply accessed via marriage or civil partnership or cohabitation agreement. If two adults lend each other money in a private deal, don’t write down the terms of their agreement, and then end up in a dispute, should they have recourse to the law? No, because there’s nothing on paper. Why should relationships be any different?

How would the new law for cohabiting couples work?

Harry Benson

It’s hard or impossible to establish whether and when a cohabitation begins. In my trade, this is called ‘sliding’ rather than ‘deciding’, where there’s no obvious entry point. One well-cited US national survey found that half of cohabiting couples reported different months in which they began living together. One-third reported dates 3 or more months apart. There’s no reason to think things are any different on this side of the pond. Everyone knows how long a marriage or civil partnership has lasted because there are clear entry points. The ambiguity surrounding cohabiting relationships is guaranteed to create more legal disputes, more financial stress, and more emotional misery.

Graeme Fraser

Position on death

Updating the law would allow the surviving partner on the death of their cohabitant to have an entitlement under intestacy.

Treating cohabitants differently to married couples and civil partners on death for tax purposes means that they do not benefit from the same exemptions in relation to inheritance tax. This can be resolved by equalising the tax treatment for all couples, regardless of the formality of their relationship.

There’s nothing controversial about these reforms, which would be easy and straightforward to implement.

Position for children of a cohabiting relationship

Schedule 1 Children Act 1989 needs to be more accessible, flexible and fairer properly to meet the needs of all children, regardless of the relationship from which they were conceived.

The law can be reformed relatively easily by making the child’s welfare a consideration for the court in all cases, the court having the power to order that both parents contribute towards the costs of childcare and extending the range of orders available to the court and the criteria to be considered under Sch 1.

Wholesale reform

Wholesale reform would achieve a purely family law-based remedy which would better assist the public. Once a family law remedy is put in place, out-of-court solutions such as mediation or collaborative practice would work better since they would then be based on concepts of fairness invested in family law rather than property law principles.

However, this raises the issue of what type of wholesale reform is most suitable and practical.

The difference model

Under this model, which has been adopted in Scotland and Ireland, cohabitants are treated differently to spouses or civil partners. A separate statutory regime would be needed, containing different and less generous financial remedies. Cohabitants are defined by statute and subject to eligibility criteria. In Scotland, a marriage comparator is used, but the Scottish Law Commission recommended in 2022 replacing this with an enduring family relationship, while Ireland refers to an intimate and committed relationship.

Although Scotland does not require a minimum duration period for cohabitation nor presence of children, Ireland requires 2 years of living together where they have children or 5 years in any other case. The Scottish Law Commission recommendations acknowledge that the outcome could be affected by instances of economic abuse. A difference model in England and Wales would likely also take this into account.

To qualify under the difference model, further requirements need to be satisfied before the claim can be made out such as financial dependency on the other cohabitant in Ireland or demonstrating economic advantage and disadvantage flowing from contributions made to the relationship, including looking after children, in Scotland.

The cohabitation remedies would be more flexible than at present by being based on the orders made on divorce or dissolution of a civil partnership, but limiting their scope would mean that marriage is not devalued by giving unmarried couples the same rights as married couples. Awards under this scheme could include payments for childcare costs to enable a primary carer to work and limited maintenance for cohabitants to reflect economic advantages or disadvantages resulting from the relationship.

The assimilation model

The other option for reform would be ‘assimilation’, which mirrors the de facto regimes in Australia and New Zealand. Once a cohabitant satisfies a statutory definition, they are treated as though they are a spouse. In England and Wales, this would mean Part II Matrimonial Causes Act 1973 becoming operative once a separating couple falls within the statutory definition of cohabitation.

The assimilation model would be simple to implement as it would involve a straightforward amendment to the Matrimonial Causes Act 1973, with qualifying cohabitants accessing the well-established legislation.

Does cohabitation reform risk undermining marriage?

Graeme Fraser

Cohabitation reform does not devalue marriage

People do not marry for legal rights. They marry for other reasons including personal fulfilment, human flourishing and love. Nowadays, men and women have varied working time patterns, and children are born to families of all shapes and sizes. Assuming that marriage is the only workable family form is somewhat patronising, as well as outdated and out of touch with society. The experience of other countries has confirmed that introducing remedies to cohabitants doesn’t diminish the marriage rate. Keeping cohabitants deprived of appropriate legal rights and responsibilities will neither help them or society at large, nor improve the marriage rate.

In calling for these reforms, nobody is saying that marriage is a bad idea. Like many other family law practitioners, I spend much of my time at the beginning of an instruction seeing whether a relationship can be saved. But when a relationship has come to an end, it is best to ensure that we have laws that bring the formalities of the relationship as painlessly as possible. This is what we achieved by implementing ‘no fault’ divorce. Similarly, better and fairer laws that protect unmarried couples at the end of their relationship, many of which are in fact committed and were stable for many years, will ensure that those relationships end with a minimum of acrimony.

While we will continue to do all that we can to ensure that couples enter into formalities that better protect their legal position, we must also be in a position to help those couples who did not do so, very often unconsciously. We know that there are relatively few couples who will enter into cohabitation agreements and declarations of trust and sometimes that is because couples don’t believe the worst will happen to them, or it could be because one of the couple refuses to do so voluntarily. But with the large numbers of couples now cohabiting, which has increased hugely over the past 40 or so years, and in particular since the Law Commission Report in 2007, we have to do more to protect the unfairness and vulnerability that already exists for so many persons. Frankly, without legislative reform, the situation becomes a ticking time bomb so the only fair way to resolve this is by introducing new family laws. That is why so many other countries have introduced new laws that have also been relatively uncontroversial while not undermining either weddings or marriages and civil partnerships.

The vulnerable need to be protected

If the law is simply left without introducing any new remedies at all, then there are very real concerns about how those who are left with no rights are at the mercy of those who can apply coercion and control, which could significantly impact on the more vulnerable partner’s health, lifestyle, and financial independence generally, including the ability to find a new home on splitting up.

Harry Benson

Let’s start by walking into a typical GCSE classroom. If the class is reasonably representative of the UK, we would find that just under half of the teenagers are not living with both natural parents. That’s almost certainly the highest level of family breakdown we’ve ever seen in British history. I obviously agree that some relationships are best ended. But half? Seriously?

It’s instructive to look at the sources of this family breakdown. One-third comes from married parents who have divorced. Two-thirds come from unmarried parents splitting up and a small proportion of mothers who never had a meaningful relationship. As part of the PhD I aim to complete this year, I use the latest statistical techniques to compare the risk of break-up among parents who marry and parents who don’t. The difference is stark, regardless of what background factors you put into the equation. I use 27 factors in mine. Married parents across age, education, income and other groups are far more likely to stay together. It’s hard to avoid the conclusion that there’s either something about marriage that helps parents negotiate these challenging years, or something about cohabitation that hinders parents, or both.

I bow to Graeme as an expert on family law. But I am an expert on the psychology of commitment. The key reason why married couples are more likely to stay together than their equivalent unmarried counterparts is down to the psychology of commitment. Marriage automatically provides the infrastructure of commitment that stacks the odds in favour of two less-than-perfect individuals staying together while bringing up their children. Cohabiting without some kind of formal agreement in front of others raises the risk of things ending in tears.

When couples propose marriage, several things happen. Here is some of the psychology.

First, both parties make a decision about being a couple with a future. Acting on that decision automatically boosts confidence that this is a good decision. This has been shown in sports bets for example. Making the bet makes us feel more confident that our team or horse will win. The team or horse doesn’t change but our attitude does. Confidence is important because getting married involves the choice to give up all other choices. That’s a risky bet when there are lots of choices and couples don’t want to be haunted by the risk that they made a bad choice. We know this as FOMO, fear of missing out.

Secondly, the brain automatically widens the attractiveness gap between the person we’ve chosen and the alternatives we’ve rejected. This reduces cognitive dissonance and increases cognitive consistency. This is a powerful principle because it makes couples more likely to see the person they’ve chosen in the best possible light. It makes couples behave better towards one another and more likely to want to resolve conflict or differences in a more positive way.

Thirdly, a proposal to marry involves sending a signal to one another. Signals are pointless if they don’t involve some element of sacrifice. If I say I will spend the day with you, it might be that I have nothing better to do. But if I cancel or forgo a game of golf to spend the day with you, that tells you something about my attitude to you. Saying you want to spend the rest of your life with somebody means forsaking all others and taking on the legal responsibilities of marriage and exit costs of divorce. This is why marriage is often described as the ultimate signal of dedication. Marriage sacrifices other choices.

Fourthly, the decision to marry removes any lingering ambiguity and puts commitment on an equal footing. The early stages of any relationship are defined by ambiguity. ‘Where are we going with this?’ Failure to resolve ambiguity risks an asymmetry of commitment where one party is more committed than the other. The problem here is that the person who is less committed holds the power. Because they care less about the relationship lasting, they have less incentive to invest time and effort and love. In the few studies that have looked at asymmetry, married couples were much less likely to experience this because commitment is explicitly equal. Among unmarried couples, it’s more likely to be the man who is less committed and who therefore holds the power. Here’s a counterintuitive idea for you. If you want modern day patriarchy, you’re much more likely to find it in cohabiting relationships than marriages.

I could go on. The added level of inertia and constraints involved with living together early on in a relationship can also make ending a fragile relationship that much more difficult. Hence some, possibly many, ambiguous cohabiting relationships that might have been better ended early drift on into unstable parenthood and bring children into the equation. Things like sacrifice and forgiveness that are central to successful relationships also depend on a clear and unambiguous sense of future that come with this kind of long-term decision.

But my point should be clear. Making a decision and acting upon it in all sorts of spheres of life changes our attitude to that decision. Making the decision to marry and acting upon it changes the way couples see one another for the better. Automating marriage-like rights for couples would further remove the need for any kind of clear active commitment and all the psychological benefits that crucial step brings.

While I am in no doubt that some cohabiting couples take this decision-making process very successfully without the need for a formal step such as marriage or civil partnership, most don’t. Yet marriage does all these things automatically. It also has one other crucial ingredient that works with the psychology of commitment, weddings.

Weddings have two main psychological benefits. The first is that they provide social affirmation of the choice to give up other choices. On the morning of my wedding, I had the worst attack of nerves I can ever remember. It even beat the experience of flying into battle and coming under heavy artillery fire in my first career as a Royal Navy commando helicopter pilot. But once I arrived at the wedding and saw my friends and family, my nerves evaporated. Their presence affirmed that I had made a good choice. There are several studies, including one of my own, showing that having more than ten guests boosts marital stability.

The second benefit is that weddings add the constraint of accountability. They hold couples to account for the decision made in front of them. Telling friends I was going to run a marathon was the moment I knew I had to complete it. Even though I’d made the decision and acted upon it months earlier, I had to be confident enough that I could finish the run before I told my friends. Telling friends cemented my commitment and gave me further encouragement to complete it, which I then did.

Once again, couples don’t have to go through these key psychological steps of mutual decision and telling friends. Clearly some cohabiting couples are extremely successful just as some married couples end up divorced. Couples who get married automatically adopt the key ingredients of commitment whereas couples who don’t marry have to add these ingredients one by one. The alternative is ambiguity, asymmetry of commitment, power imbalances, and much-increased risk of family breakdown.

Closing comments

Harry Benson

Whatever you think about cause and effect, there can be no doubt that the trend away from marriage has created unprecedented levels of family breakdown. As family lawyers, you see this day in and day out. I respect that it’s an incredibly challenging job. But if you accept that the trend away from marriage has increased the sum of fragile families – and I hope I have explained the psychology behind this – giving automatic opt-out rights to cohabiting couples can only further this trend.

You might disagree that it’s illiberal to foist rights onto consenting adults who already have easy access to those rights. You might accept you’re going to face a stream of futile cases arguing over when and even whether couples actually cohabited. But giving automatic rights to cohabiting couples risks undermining the whole psychology of commitment. Hard cases make bad law, as you say.

Graeme Fraser

Let’s start a call to work together to achieve meaningful change.

Getting rid of the unfairness that arises from current laws, and achieving meaningful change, are of pressing importance. To opponents of reform, I ask you to help overcome the unfairness in the law by supporting the changes necessary to remove the manifest unfairness that continues until there is legislation. I believe that we are on common ground with our opponents in the sense that nobody advocating reform wishes to devalue marriage (and nor will it), and it is simply not right and highly discriminatory that nearly a quarter of the way through the 21st century, the children of unmarried parents end up being treated less fairly than the children of married parents. Automatic unfairness that exists for unmarried couples on separation and death must be removed, and we need new laws that work for families, not trusts principles that are largely unintelligible, often too expensive and risky to pursue and create weak outcomes. We need laws that can be understood more readily, applied more widely and are fair. If we have fair laws, family disputes can be solved much more easily during the early stages. Family lawyers have a much better chance of providing fair solutions that can add value when the law becomes logical, meaningful, and easier to apply.

Promoting marriage should never come at the cost of ignoring the manifest unfairness that affects millions of couples who are in cohabiting relationships, which are increasingly longer term and more committed, in addition to those with children. The numbers continue to increase inexorably as time goes on. We need new laws that keep up with how people choose and wish to live and provide the remedies that they both want and need.