Evaluating the Government's Response to the Women and Equalities Committee Rights of Cohabiting Partners Inquiry
Published: 07/11/2022 19:10
On 1 November 2022 the Women and Equalities Committee released the Government's response to their Rights of Cohabiting Partners Inquiry Report. The short response, available here, largely rejects the key recommendations of the Committee and only partially accepts the others. The initial reaction to the Report has been disappointment and frustration. The Committee Chair, Caroline Nokes MP, noted in a press statement that it was 'deeply disappointing that the Government has closed off the possibility of better legal protections for cohabiting partners for the foreseeable future' and that their response 'effectively kicks the issue into the long grass'. Similarly, Graeme Fraser, Chair of Resolution's Cohabitation Committee, noted:
'The lack of rights for cohabiting couples means millions of people – often women and others in society who are vulnerable – are at significant financial risk if their relationship ends or their partner passes away.
Having bad laws is generally a bad thing for families. Current cohabitation laws are unfair, not fit for purpose and consign too many families to misery and dire financial hardship. It will continue to do so until it has been reformed, exacerbated by the significant numbers who continue to cohabit.'
I very much share those views. The reasons provided by the Government for rejecting reform are, in many respects, unpersuasive. The Government's explanations and their solutions proffered, such as highlighting recent reforms undertaken in other unrelated areas of family law, do not engage meaningfully with the pressing issues identified by the written and oral evidence submitted to the Inquiry. This post will dissect the Government's response and assess its impact on the campaign for cohabitation reform.
The Government Responses to the Committee Recommendations
Recommendation 1: 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 partially accepted the need for greater awareness of the 'legal distinctions' between marriage, civil partnership, and cohabitation, and thought that the widespread belief in common law marriage was a 'concern'. However, it stated it had 'already demonstrated commitment' in this area via the Department of Education's statutory guidance on relationship education for pupils in schools. Given that 'existing action', a national awareness campaign was not necessary, although the Government agreed to consider a review of information available on Gov.uk and the need for 'better signposting'.
This aspect of the response is troubling, and the language chosen indicates a distinct lack of enthusiasm to meaningfully engage with this issue e.g. 'we commit to take further action to consider'. Relationship education in schools is, of course, important but highly unlikely to change the current position, especially if the focus of such education promotes a particular agenda or ideology by emphasising 'why marriage is an important relationship choice for many couples'. Indeed, explaining to children 'the characteristics and legal status of other types of long-term relationships' overlooks relationship plurality and the statistical reality that today 3.6 million couples are currently cohabiting. Targeted information campaigns aimed at adults, who directly feel the impact of the common law marriage myth, are far more useful than the provision of information to children. Similarly, reviewing information and its signposting on the far from user-friendly Gov.uk webpages is equally light touch. In short, as Professor Anne Barlow's research has demonstrated, a deeply embedded and pervasive myth cannot be changed by updating webpages, particularly when couples are not prompted or even encouraged to visit them in the first place.
Recommendation 2: The Government should undertake a targeted 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 partially accepted this recommendation noting that it was important to 'reach out' to women in communities where religious-only marriages are commonplace. However, the fact the Government is currently reviewing the 57 recommendations made by the Law Commission in their Celebrating Marriage Report means it would be 'premature' to carry out a targeted information campaign.
To some extent, this is appropriate, and it probably is prudent to wait for the Government response as that may influence the shape and content of any public awareness campaign. It should be noted, however, that even if weddings law was reformed there would remain the need to introduce cohabitation protections. The two projects are not mutually exclusive. The lack of legal protections for religious-only marriages is a serious concern but, as the Inquiry revealed, is one element of the much broader case for comprehensive cohabitation reform. Given the increasingly secular society that we live in and the fact that recognised religious marriages amount for around one fifth of the total number of marriages contracted each year, more far-reaching reform is needed to protect the diverse range of cohabiting couples.
Recommendation 3: 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?
This key recommendation was rejected. The Government's position is that exploring cohabitation reform cannot be undertaken until both a review of financial remedies law has been completed and the Government's response to the Law Commission's weddings project is released. It went further to note that 'any new legal rights and obligations afforded to cohabitants would necessarily need to be considered against a baseline of rights afforded to married parties or civil partners on divorce or dissolution'. As the Law Commission 2007 recommendations are 15 years old, the Government believe they cannot be implemented without a new review, a new public consultation, and without appreciation that mixed-sex civil partnerships were introduced in 2019.
This position is unfortunate. Neither financial remedies law reform nor that relating to marriage formalities have any direct bearing on the issue of cohabitation reform. Indeed, the Committee was clear in their recommendations that they did not favour equalisation of the treatment between cohabitants and spouses/civil partnerships. Instead, they favoured two separate regimes, with the bespoke regime applicable to cohabitants being less generous than that applicable to spouses (as originally proposed by the Law Commission). Thus, the review of one area does not prevent progress being made on another. If the financial remedies review was to consider equalisation along the lines of an Australian and New Zealand de facto-type regime, it would make sense. However, the tenor of the Government's response and their oral evidence to the Committee suggest that such reform would be highly unlikely to materialise. Similarly, the ongoing review of weddings law has no direct bearing on whether cohabitation reforms should be introduced. The Law Commission's weddings consultation is proposing changes to the formalities relating to marriage. It is not engaging with cohabitation as it is a separate issue.
Two further points can be made. First, the Government appears to support a refresh review of the Law Commission 2007 proposals but only once any changes to weddings law and financial provision are approved. These changes could conceivably take years to complete as both areas are extensive, complex and, in some respects, controversial. The Law Commission acknowledged that their weddings project was a huge undertaking that proposed an entirely new scheme aimed at transforming the law. This unnecessary delay will mean cohabitants are left vulnerable. The additional need for a new public consultation, as opposed to merely a refresh review, will further add to this delay. While it is a good idea for the 2007 proposals to be reviewed considering comparative perspectives and legal developments since their publication, there is no need for a fresh public consultation, especially after the recent Committee exercise. A targeted scoping/discussion paper would suffice.
Second, the recent reform of civil partnerships is of limited relevance to cohabitation. At its core, some couples may wish to formalise/opt-in, whereas others may not. Equal civil partnerships are certainly attractive to a statistical minority of couples who may have ideological objections or reservations as to marriage; they are not a substitute for an opt-out regime as proposed by the Law Commission. It also should be noted that the number of civil partnership registrations remains relatively low and is at the lower end of the Government Equalities Office's Impact Assessment that was released in July 2019.
Put simply, it is inaccurate to say that the existing work underway on the law of marriage and divorce 'are directly relevant to issues concerning cohabitants'. Of course, different areas of family law must work together harmoniously but the Government's response displays evasiveness and deploys stalling tactics. This will create unnecessary delay and, in turn, uncertainty for cohabiting couples. Moreover, the Government is pursuing relationship formalisation as a perceived simple solution to a complex issue. This strategy fails to appreciate the diverse reasons, motivations, and level of understanding of the law among couples in relation to the decision to formalise.
Recommendation 4: The Government should immediately implement the Law Commission's 2011 recommendations concerning intestacy and family provision claims for cohabiting partners
This recommendation was rejected on the basis that such a move had to be considered cautiously and in conjunction with wider reforms, especially as it could be divisive by promoting 'the interests of cohabitees over family members of the deceased, potentially including their children'. The use of wills and family provision claims was recommended.
This is yet another disappointing response. Placing cohabitants within intestacy law and conferring automatic entitlements, without the need to go to court, can naturally create tension with family members. However, it would be much better to acknowledge the existence of the deceased's cohabitant (outside their ability to make financial provision claims), provided the relationship had a degree of permanence or stability. Other Commonwealth jurisdictions have already done this. The Government response also overlooks the fact that that the primacy of marriage and civil partnership was explicitly recognised in the 2011 recommendations as cohabitation with the deceased must have lasted five years (or two years if there was a child).
Testamentary freedom is not an answer to the issues faced by cohabitants given the relatively low number of wills executed each year. It is also reliant on a prior understanding of the law among cohabitants that they need to create a will to 'set their affairs in order'. This may not be present given misunderstandings as to the nature of legal entitlements, which is exacerbated by the common law marriage myth.
Recommendation 5: 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
This recommendation is accepted in principle with the Government noting the diversity of pension offers as 'one of the strengths of the UK system'. They remarked that 'it should remain up to employers and trustees to determine the right level and shape of benefits to offer, as schemes are best able to make this judgement themselves'.
While this is a more considered response than others and broader non-legislative guidance would be welcome, the enthusiasm to pursue change does not appear to be there. Note, for example, the interestingly worded statement: 'The Government ... appreciates the Committee's aspiration to see more guidance'.
Recommendation 6: 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
This final recommendation was rejected but, unlike others, will be kept 'under review'. The rationale for rejecting change was that the inheritance tax treatment of spouses and civil partners reflects 'their unique legal relationship'.
While reviewing this position is welcome, this response evidences prioritisation of formalised relationships over others yet overlooks the fact that couples tend not to formalise their relationship based on the legal entitlements they receive. Reserving this tax incentive for spouses and civil partners will neither stimulate the marriage rate nor support the institution of marriage more generally, given the prevalence of cohabitation.
The Campaign for Reform Continues
The evidence submitted to the Women and Equalities Committee Inquiry exposed the widely accepted fact that the current law is simply not fit for purpose. In addition, it offered new insights on the vulnerabilities faced by cohabitants and the equalities issued raised, noting the disproportionate impact on women, especially those of ethnic minority backgrounds. It is therefore highly unfortunate that the Government's response is characterised by sidestepping, evasiveness, and placing emphasis on current or planned reform activities in unrelated areas of family law. By incorrectly stating that one reform is dependent on another, the Government is creating contingencies that need not exist. Given the weight of evidence submitted to the Inquiry, the consequence of this inaction is to leave cohabitants vulnerable upon relationship breakdown and death. It therefore remains up to the academic community and practitioners to collaborate, organise, and expose why maintaining the status quo is untenable.
Dr Andy Hayward. Associate Professor in Family Law, Durham Law School. Andy acted as Specialist Adviser to the Rights of Cohabiting Partners Inquiry. The views expressed here are in his personal capacity as an academic and should not be taken to reflect those of the Committee.