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Cohabitation Law Reform – could reform of Schedule 1 of the Children Act 1989 be a first step to protect the most vulnerable?

by Ridley&Hall in Emma Hopkins Jones, Family & Matrimonial posted April 19, 2022.

Resolution, and Resolution’s Cohabitation Committee in particular, have been campaigning for reform of the law relating to cohabitants for over 25 years.

The Law Commission’s report “Cohabitation: The Financial Consequences of Relationship Breakdown, was published on 31 July 2007.  This followed an extensive consultation in 2006 and recommended legislation be introduced to create a new statutory scheme to enable cohabitants to apply for financial relief in certain circumstances where qualifying contributions to the relationship gave rise to certain enduring consequences at the point of separation.  The Resolution Cohabitation Committee endorsed the recommendations of the report, but no Government has taken forward the recommendations to date.

The Resolution Cohabitation Committee has supported various Private Member’s Bills over the years, most recently the Private Member’s Bill published by Lord Marks in October 2013, and which has been reintroduced subsequently – a first reading in the House of Lords took place on 6 February 2020.

However, to date these proposals for a wholesale reform of the laws relating to cohabitants and the creation of a new legislative framework, haven’t got off the ground.  This is for a number of reasons, partly as a result of concerns raised by opponents of reform such as the marriage foundation that reform would undermine the institution of marriage, but probably largely because the introduction of a completely new statutory scheme would be time consuming and costly from a development and implementation perspective and potentially lead to uncertain outcomes and more litigation as lawyers and the judiciary get to grips with the new legislation.

Over recent years the Committee’s focus has been on cohabitation law reform from an equality perspective – that is looking at the less favourable outcomes for cohabiting partners and children of unmarried couples, as compared to outcomes for families where the couple have formalised their relationship by marriage or civil partnership (see The Review Issue 196, September/October 2018, p12-13 “Time’s up for our outdated Cohabitation Laws”).

That approach has been gaining traction.  In 2021 the Women’s & Equalities Committee launched a Parliamentary Inquiry into the rights of cohabiting partners to investigate the equalities issues around cohabitation, how cohabitation rights could be strengthened and what legal protection for cohabitants could look like and how this might be introduced.  The Cohabitation Committee responded to the call for written evidence to the inquiry, which was submitted in summer 2021.  That evidence was that:

  • Cohabiting couples currently have little legal protection when they separate. A legal framework of rights and responsibilities when couples (not married or civil partnered) 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 partner 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 modern families live their lives.
  • Where a couple has an Islamic marriage or some other type of religious marriage which is not recognised in this jurisdiction, there are significant implications upon separation and divorce, because they are not treated as married.
  • Resolution considers that there should be a legal definition of cohabitation based on eligibility criteria demonstrating a committed relationship.
  • Eligible cohabitants should have a right to apply for certain financial remedies orders if they separate. This right should be automatic unless the couple chooses to ‘opt out’. The court should be able to make the same types of orders as they do currently on divorce or dissolution of a civil partnership, but on a very different and more limited basis.
  • The legislative framework in Schedule 1 of the Children Act 1989 should also be reviewed to provide a more accessible, flexible and fairer system to properly meet the needs of children of a cohabiting relationship.
  • In the event of the death of a cohabiting partner, their partner should have an entitlement of intestacy, subject to conditions.
  • 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 who are not married or civil partnered into the 21st century. 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.  And age has a striking effect on the likelihood that someone will believe that ‘common law marriage’ exists.  Unlike many other countries, we have not changed the law to tackle this situation.
  • Resolution members have considerable experience and awareness of the problems created by the vulnerability of cohabitants under current law. We carried out 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.

The full written submissions can be read here: The Rights of Cohabiting Partners – Written evidence – Committees – UK Parliament.

Graeme Fraser Chair of the Cohabitation Committee gave oral evidence to the Committee and the session can be viewed here.

Developing on from that work, the Cohabitation Committee worked collaboratively with Resolution’s Pensions, Tax and Financial Remedies Committee to respond to the Law Commission’s consultation on its 14th programme of Law Reform.  The focus of Resolution’s response to the Commission was that financial provision for children should be the same on parental separation, whether their parents were married, civil partnered or unmarried, and Schedule 1 of the Children Act 1981 is no longer fit for purpose and needs review to ensure that children are not financially prejudiced if their parents have separated.

The Women’s & Equality Committee will publish a report with their findings in Spring of this year, and the Government will respond. The Law Commission is similarly expected to publish its programme for Law Reform in the first part of this year. It is hoped and anticipated that this will generate new momentum to the consideration of the rights of cohabitants amongst MPs, Peers and those involved in law reform.  Watch this space!

Emma Hopkins Jones

Emma Hopkins Jones is a Partner at Ridley & Hall, a member of Resolution’s Cohabitation Committee and a member of the Women’s Equality Party.

 

 

 

 

 

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