Education, Cohabitation And Clarification 

Published on 08 August, 2022 | Judith Klyne

That the nature of home life has been transformed in recent decades is beyond question.

Fifty years ago, there were 426,541 marriages in England and Wales. The number which took place in 2019 was just over than half that figure (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2019#age-at-marriage).

There are, of course, many reasons why that is the case.

A report published last week by an influential House of Commons’ committee sought to address one of the most significant; namely, the rise in cohabitation (https://committees.parliament.uk/committee/328/women-and-equalities-committee/news/172666/myth-of-common-law-marriage-leaves-disadvantaged-groups-disproportionately-at-risk).

The document produced by the Women and Equalities Committee detailed how the number of cohabiting couples has more than doubled in the last 25 years.

As a result, it has made a series of recommendations aimed at tackling the difficulties which can arise when such relationships break down due to the “inferior” protections for cohabitees compared to counterparts in marriages or civil partnerships.

The 36-page report is a laudable attempt to deal with what, for some, is a vexing issue that has not to date been resolved by parliament.

It features suggestions which go to the heart of why the collapse of unmarried relationships can create stress for those directly involved as well as lawyers and legislators.

However, I would argue that its intended solutions, if taken up by Government full, risk complicating rather than clarifying matters.

Indeed, the very first line of the main body of the report underlines a fundamental problem. “There is”, it states”, “no single, legal, definition of cohabitation”.

That much is true on a practical and personal basis, not just a legal one.

People decide to live together without marrying for many different reasons. Trying to find a structure which is of use to men and women in a variety of circumstances is almost a thankless task.

The headaches are compounded when it comes to making financial provision for cohabitees once their relationships come to an end. After all, some participants cohabit precisely because they don’t want to have the formality and prospect of financial dependence which comes with marriage.

I should say that in the proposals made in the Women and Equalities Committee report, two stand out as having special merit.

It airs concerns voiced on many occasions on this ‘blog and elsewhere about the persistent myth of the ‘common law spouse’.

The belief that people who do not marry or enter into a civil partnership have the right to make a financial claim on their partners when a relationship breaks apart is not just the stuff of anecdote.

Myself and my colleagues have plenty of experience of telling individuals of all backgrounds – some of whom have cohabited for many years – that is not the case.

Even though that misapprehension has so far proven very difficult to shake, the new Committee report recommends “a public information campaign to highlight the legal distinctions between marriage, civil partnership, and choosing to live as cohabiting partners”.

In addition, the Committee suggests an even more targeted publicity push aimed at highlighting how some religious wedding ceremonies, such as the Islamic Nikah, do not meet legal formalities in the UK.

However, in my opinion the report strays into problematic territory when it comes to creating financial provision, even the protection of “economically vulnerable” individuals.

Part of the process which the Committee would like to see adopted is the ability for couples to opt-out of any new legal framework.

That doesn’t just present difficulties in my mind. The Committee uses a previous Law Commission study as one of its reference points (https://www.lawcom.gov.uk/project/cohabitation/).

The Commission noted at the time of its own research that requiring cohabitees to opt-out of possible legal benefits “would do no better at protecting the vulnerable than an opt-in”.

Men and women who might choose to set up home with someone without marrying might, I believe, find themselves almost sleepwalking into the very financial provisions which they seek to avoid because they are not fully aware of the small print of any new rules.

A look at data produced by the Office for National Statistics (ONS) reveals the sort of shifts in cohabitation which render a single structure or system tricky at best (https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/bulletins/populationestimatesbymaritalstatusandlivingarrangements/2020#:~:text=The%20population%20who%20are%20cohabiting,compared%20with%2011.3%25%20in%202010.).

Whilst we might assume that the rise in cohabitation is driven by younger couples, some of whom wish to avoid the repeat of a divorce, the figures indicate something else.

Cohabitation has only risen by 7.5 per cent among individuals in the age group (45 to 59) which account for most divorces. The number of cohabiting relationships in the age group in which people are generally marrying (30-44) actually fell by 44 per cent.

It is only among men and women over 60 years of age who might previously have been married or in a civil partnership that cohabitation sees a considerable increase (40 per cent).

Individuals of that age often have their eyes not only fixed on planning for retirement or inheritance too.

The nature of their relationships might simply provide an untidy fit with the kind of arrangements envisaged by the Women and Equalities Committee.

I appreciate that cohabitation represents something of a conundrum.

Former cohabitees who wish to make a financial claim on their exes are generally forced to do so under the Trusts of Land and Appointment of Trustees Act (TOLATA) 1996.

Such proceedings are complex, costly and are commonly fraught for those parties involved.

It is my position that the answer lies in clarity and education – even perhaps by including specific information within the school curriculum to address the ‘common law’ myth.

When it comes to the breadth of what happens in our households, a one-sized approach can never adequately fit all, no matter how worthy the intentions of those behind it.