Where Next for Cohabitation Reform in England and Wales?

Published: 30/08/2022 15:37

On 4 August 2022, the Women and Equalities Committee of the UK Parliament handed down their eagerly anticipated Report on the Rights of Cohabiting Partners, available here. It called for the introduction of opt-out protections upon relationship breakdown, legal provision following an intestate succession, and public awareness campaigns to tackle both the common law marriage myth and the vulnerability caused by religious-only marriages. This post reflects on the Report’s key recommendations and considers next steps for cohabitation law reform in England and Wales.

The written evidence submitted to the inquiry

The inquiry was launched in April 2021 and had broad terms of reference. It was not concerned solely with protections upon relationship breakdown but also considered those applicable upon death. Generating around 380 responses, the inquiry received written evidence from members of the public, practitioners, academics, and campaign groups. While some responses were confidential, the majority are available to read here.

Reviewing the evidence reveals many responses from members of the public opposing reform and much of this was grounded in religious concerns. Opposition largely focussed on the need for marriage to remain a privileged status in the law and that cohabiting relationships did not have the stability of formalised unions. Many of these responses also cited virtually identical sources for support and therefore suggest a targeted and organised campaign to oppose future reform. This is reminiscent of the last-minute opposition we saw to the No Fault Divorce consultation in 2018 where, in the two weeks preceding the deadline for responses, a significant number of negative responses were received. What is noticeable here is the continuing strength of feeling among some individuals, which one might have thought would have diminished since the last public consultation on this issue by the Law Commission back in 2006.

The responses by practitioners and academics were largely in favour of reform. The question instead focussed on the shape and content of such reform. There were calls for the simple solution of extending Part II of the Matrimonial Causes Act 1973 to cohabiting couples, which was felt particularly appropriate for couples with children. Others advocated for a bespoke solution, namely an opt-out regime, along the lines of that devised by the Law Commission in their Cohabitation: The Financial Consequences of Relationship Breakdown project. This was the position adopted by Resolution in their detailed evidence – available here.

Overall, while there was division of opinion between academics and practitioners on how change might be achieved and how far it might go, there was near unanimous support for the need for reform. Practitioner responses proved incredibly insightful as they offered granular detail on the challenges faced by litigants when seeking legal remedies. The comprehensive written evidence by the Family Law Bar Association (FLBA) was particularly useful (accessible here). This response exposed procedural issues that need confronting in any future reform such as limitation periods for claims, how cohabitation can be defined in law, the requirements of a valid opt-out agreement, and the question of subsidiarity, i.e. whether the existence of a statutory cohabitation law claim would bar the bringing of a trust-based claim.

The oral evidence

There were five oral evidence sessions conducted from September 2021 to February 2022. The recordings are available here. The aim of these sessions was to canvass a wide variety of viewpoints from academics, practitioners, charities, the Law Commission, and representatives of the Government. The discussions were wide-ranging but some key headline messages emerged. Professor Anne Barlow’s evidence highlighted the pervasive nature of the common law marriage myth and the difficulty faced by policymakers in dispelling it among members of the public. Similarly, Professor Gillian Douglas and Professor Rebecca Probert exposed the deficiencies of implied trusts, and that cohabitation reform would still be needed in addition to the recent changes proposed by the Law Commission regarding religious-only marriages. These views were strongly supported in a later evidence session by Professor Nick Hopkins of the Law Commission, who noted that changes to weddings law would not resolve the separate need for cohabitation reform. The disproportionate impact of the law on black and minoritized ethnic women was usefully highlighted by Mandip Ghai, Senior Legal Officer at Rights of Women, and Nazmin Akthar, Co-Chair at Muslim Women’s Network UK.

Practitioners noted the extensive problems of the current law. Graeme Fraser, Chair of the Cohabitation Committee at Resolution, provided a robust and convincing case for reform noting that the law was simply ‘not fit for purpose’ and that it did not help clients or society. Unsurprisingly TOLATA claims came in for a large amount of criticism, as did those brought under Schedule 1 of the Children Act 1989. Evidence on behalf of the FLBA, provided by Michael Horton QC and Elizabeth Darlington, enabled the Committee to appreciate the complexities of the implied trusts, and emphasised the fact that the courts were limited in terms of how far they could modify existing property law principles.

The views of those critical of cohabitation reform were also sought. Baroness Deech, a longstanding opponent of reform, argued that the case for changing the law was premised on gendered stereotypes of women that portray them as disadvantaged. She remarked that a new law would benefit a woman that ‘lives with a well off footballer’ and not one living in a ‘council house…on benefits’. Similarly, Harry Benson of the Marriage Foundation expressed the view that cohabitation reform undermined commitment. While the need to respect party autonomy is certainly important, these views are not particularly persuasive. In many ways they trade in the same stereotyping of women that they criticise others for doing and overlook the statistical reality that marriage is in decline however much they would prefer it not to be. They also centre their arguments in a reform model that treats cohabitants and spouses equally, which, as the recommendations show, is not the position adopted by the Committee. Even if opt-out reform were to materialise, marriage would still be privileged, and party autonomy protected via opt-out agreements.

Viewed in the round, these contributions strengthen existing reform arguments. They update them too. The rate of cohabitation in England and Wales is steadily increasing and the widespread erroneous belief in common law marriage remains firmly entrenched as evidenced by Professor Anne Barlow’s research from 2019; available here. As a jurisdiction, England and Wales is also a clear outlier when compared to our neighbours – Ireland introduced cohabitation protections in 2010 and the Scottish Law Commission will soon release their Report that will likely propose reform of their existing cohabitation law, first introduced in 2006. These comparative dimensions were skilfully highlighted in an oral evidence session with Professor Jens Scherpe (University of Aalborg), Professor Margaret Briggs (University of Otago), Dr Kathryn O’Sullivan (University of Limerick) and Kate Dowdalls QC (Scottish Law Commission). That session provided a wealth of valuable information on other jurisdictions and reinforced the need for us to avoid making the same mistakes of countries that have already managed to provide remedies for cohabitants.

The Report recommendations

The Report makes several recommendations. Combatting ‘common law marriage’ is a key priority with the Committee finding it ‘staggering’ that so many couples continue to think it exists. As a result, they recommend a public awareness campaign that highlights and explains the legal distinctions between marriage, civil partnership, and cohabitation. A similar approach of raising public awareness is taken to religious-only marriages where their current lack of recognition means that couples are effectively treated as cohabitants. Targeted campaigns are called for among religious communities where these practices are prevalent. While the provision of greater information is to be welcomed, my own view is that such campaigns are likely to have limited success in correcting misunderstandings, particularly those that are so deeply entrenched in society like common law marriage. As interpersonal relationships are by their very nature complex, it is very difficult to make couples act like legally rational individuals. It is often futile too, given the optimism bias among couples who believe that their relationships will not end. More coercive legal intervention is needed to tackle the actual consequences of these mistaken beliefs, and taking this step may have the incidental and welcome benefit of improving public understanding of the law.

An important recommendation is that the Committee backed the introduction of an opt-out cohabitation scheme as proposed by the Law Commission in its 2007 report. The Committee stated that the Government ‘should make a commitment to publishing draft legislation for pre-legislative scrutiny in the 2023–24 Session of Parliament’. In addition, the Ministry of Justice should commission a refresh review of the Law Commission’s 2007 proposals to see if they need updating. These recommendations are particularly welcome when it is appreciated that cohabitants are generally more vulnerable following relationship breakdown rather than death seeing as in the latter context claims under the Inheritance (Provision for Family and Dependants) Act 1975 can be made. But readers of the Report will certainly notice a cautious approach has been adopted. The Committee, for example, stresses that ‘law reform should recognise that marriage continues to hold an important social and religious status in England and Wales’. Equalising treatment, along the lines of the Australian and New Zealand ‘de facto relationship’ model is, therefore, not proposed. Rather a more limited type of reform is advocated that tackles economic vulnerability of long-term cohabitants while being mindful of preserving their autonomy via the ability to disapply the scheme. This is perhaps to be expected given the political make-up of the Committee and the need for both consensus and compromise when devising recommendations.

The final set of recommendations relate to protections upon death. The Committee called for the immediate implementation of the Law Commission’s 2011 recommendations concerning intestacy and family provision claims. In addition, it stated that the Government should publish clear guidelines on how pension schemes should treat surviving cohabiting partners and that they must commission a review of the inheritance tax regime ‘so it is the same for cohabiting partners as it currently is for married couples and civil partners’. While the intestacy recommendations benefit from the existence of a draft bill created by the Law Commission in 2011 and thus would be relatively easy to achieve, the other aspects will require careful thought given their complex and controversial nature.

Where next for cohabitation reform?

Some may be disappointed by the outcome of this inquiry and might criticise the relatively tentative recommendations made. The Report certainly does not favour a radical approach and perhaps consistent with this jurisdiction’s approach to family law reform more generally supports incremental change. This is reminiscent of what Baroness Hale once described as ‘salami slicing’ where during her time at the Law Commission context-specific legal provisions originally reserved for spouses were gradually extended to cohabitants. But these criticisms should be contextualised by appreciating the general nature of this important Committee’s work and the wider purpose that these types of inquiries serve. What is significant about this Report is the way it places cohabitation in the spotlight again, updates the arguments for reform, and pinpoints the types of individuals disadvantaged by the existing law. This can be seen in the press release for the Report and the statement by the Committee Chair, Caroline Nokes MP, who criticises the law for being ‘left decades behind’ and that it was ‘completely unfair’ for cohabitants to have ‘inferior protections’ (available here). Therefore, by drawing upon the evidence provided by Resolution, the FLBA and others, a much clearer picture emerges revealing that women are often disadvantaged by the lack of legal protections and that there are important equalities issues at stake. This dimension, alongside recent human rights-based litigation exemplified by the Supreme Court decisions in McLaughlin and Brewster, might offer new strategies for securing cohabitation reform.

The next step will be awaiting the Government response. The current tumultuous political landscape and the fact that Parliament is on recess suggest this will not be immediately forthcoming, but thankfully the Government is obliged to respond to the Report recommendations within a set timeframe. Given the complexities of reform that became apparent during the inquiry and statements provided by representatives of the Government, it is possible that more time would be sought to review the picture. Indeed, Mike Freer MP, then Minister for Equalities, noted in oral evidence that international examples would be particularly useful to explore with a view to guiding how England and Wales can ‘amend our own laws to improve the situation’. It is hoped that my forthcoming book, The Legal Status of De Facto Relationships, co-edited with Professor Jens Scherpe at the University of Aalborg, might be informative in that regard as it analyses cohabitation law and policy in forty jurisdictions. Further collaboration between academics, the Law Commission, and practitioners, especially through the bringing of test cases, will be vital too.

Securing cohabitation reform will be difficult but it ultimately will happen. What matters in the meantime is that attention remains focused on the precarious position of cohabitants and that, off the back of this Report, we maintain the momentum for reform.

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.

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