Last week the government announced that they had no plans during this parliament to implement the Law Commission’s 2007 proposals regarding the consequences of relationship breakdown for cohabiting couples. Perhaps this is not surprising given the reactions of (generally) right wing commentators who fear that giving legal rights and responsibilities to cohabiting couples will de-value marriage. A quick internet search of commentaries at the time of the passing of the Civil Partnership Act 2004 (when Lord Lester initially proposed allowing heterosexual couples to register their partnership – this proposal did not proceed and the Act only applies to same sex couples) and when the Law Commission report was published in 2007 demonstrates the depth of feeling and wide divergence of views concerning this issue.
Despite a common belief in the myth of the “common law husband or wife”, there are no specific laws in England and Wales at the present time giving legal status, rights or protection to couples who live together outside of marriage (or civil partnership for same sex couples). In Scotland, a scheme for cohabiting couples was introduced by the Family Law (Scotland) Act 2006. In England and Wales, when a relationship ends, whether by separation or death, any dispute relating to property or finance is dealt with under general land and trust law or the intestacy rules. In general terms this means that individuals retain the property in their own name and will have no claim upon property or belongings owned by the other, unless they can establish a claim using complicated land and trust law concepts. This causes most difficulties and hardship where the couple have lived together for years in a house which is legally owned by only one of the couple. Upon separation, the other will have no claim upon the property, regardless of the number of years they have lived together, whether they have children or the contributions the non-owning partner has made to the household expenses.
Other problems arise when one of the couple dies and there is no will, for under the intestacy rules there is no provision for the surviving partner to inherit unless they can establish their dependency upon their late partner. Any property or belongings will therefore go to the nearest family member. This contrasts with the legal rules for spouses, where on separation and divorce the courts are able to consider all property owned by either spouse (whether in joint names or sole name) and distribute the assets between the individuals. On death under the intestacy rules spouses have an automatic right to inherit some of the assets left by the other.
This is a “marmite” issue – on the one hand, it is argued that this lack of specific legal provision for cohabiting couples reflects the fact that those who live together have chosen not to get married, and therefore reflects a lesser commitment to the relationship. They also point to the fact that those living together can protect themselves through measures such as placing property in joint names, entering into a cohabitation agreement and making a will.
Others argue that this ignores the reality of family life today. An increasing number of people are living together rather than marrying, and there are many children born to cohabiting couples rather than married ones. Many who live together believe that they have rights as cohabitants, and the first time they realise this is not the case is when the relationship breaks down or their partner does. Even if they understand that there is no such things as a common law spouse, consideration of what will happen when the relationship ends is far from their minds when they start living together. Research commissioned in 2006 by the Ministry of Justice into the behaviour and attitudes of a group of ‘legally aware’ cohabitants showed that while a significant number stated that they intended to take action to protect their position as cohabitants, few if any had actually done so by the end of the project for a variety of different reasons.
The Law Commission’s report in 2007 concluded that cohabitants should not be given the same rights as married couples and civil partners in the event of their separation. However they recommended a new scheme of financial remedies available for those couples who had a child together or who lived together for a minimum period of time (to be agreed by Parliament). There would be the possibility of couples agreeing to opt out of the scheme. These proposals attracted equally strong praise and condemnation.
At the present time the government has no immediate plans to look at these proposals or to give them parliamentary time. Whilst the reasons for this is not clear, it is easy to speculate that a conservative government has little appetite to confront the claims that any changes will damage marriage and “traditional” family life. However this ignores the hardship to individuals and children and the injustice that can result from the current law and the public’s ignorance of their legal status. Whether the Law Commission’s specific proposals are adopted or not, given social attitudes and behaviour in the 21st century it is hard to escape the conclusion that the law is outdated and does not deal adequately with the issues arising from the breakdown of relationships today. Governments are elected to deal with difficult issues, and I hope that any delay in looking further at these proposals will not be long.
The Open University Law School