Cohabitee Rights, Religion And Change 

Published on 23 October, 2023 | Eleanor Scott

Times change and so too do the views of society.

Perhaps the clearest indicator of the degree to which that is true is what happens in the home.

A century ago, there were just 2,667 divorces in England and Wales (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2021).

That is only slightly more than the number of marriage break-ups recorded on average each week during 2021 – the most recent year for which data has been made available by the Office for National Statistics (ONS).

It is important, however, to put what seems like a huge increase into perspective. With the odd annual exception, the 2021 number is part of a continued gradual decline in divorce since a record high for divorces in this country (165,018) was established in 1993.

There has been an even more pronounced reduction in marriage.

Whilst there were 85,770 marriages in 2020 – an 80 per cent drop on the number seen in 1972 – this country and much of the rest of the world was in lockdown three years ago (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2020).

The global need to prevent the spread of Covid-19 meant that many couples who had planned weddings were forced to abandon them.

A much truer image is created by data from 2019 but even the 219,850 marriages which took place then still suggests that tying the knot is far less popular than it once was.

Perhaps unsurprisingly, that has been the cause of no little worry for religious authorities.

Within the last week, the Bishop of Shrewsbury, the Right Reverend Mark Davies, has painted a fairly bleak picture, describing nothing less than the disappearance of marriage in Britain (https://cruxnow.com/church-in-uk-and-ireland/2023/10/english-bishop-claims-marriage-disappearing-in-britain).

His comments, of course, follow the publication of more ONS’ data showing that just under one-quarter of all couples in England and Wales is now made up by unmarried men and women (https://www.ons.gov.uk/peoplepopulationandcommunity/householdcharacteristics/homeinternetandsocialmediausage/articles/livingarrangementsofpeopleinenglandandwales/census2021#:~:text=1.-,Main%20points,groups%20aged%20under%2085%20years).

That has far wider consequences than for the clergy.

As the House of Commons’ Women and Equalities Committee noted in a report published in August last year, cohabiting couples enjoy nothing like the rights available to counterparts who are either married or in civil partnerships should their relationships fail (https://publications.parliament.uk/pa/cm5803/cmselect/cmwomeq/92/summary.html).

Despite a number of pieces of draft legislation being presented in parliament – most recently by the Liberal Democrat peer Lord Marks (https://bills.parliament.uk/bills/2639) – none have so far made it onto the Statute Book.

It means that financial claims by former cohabiting partners which do not involve children are dealt with not by family law but under civil law and, in particular, the Trusts of Land and Appointment of Trustees Act 1996 (https://www.legislation.gov.uk/ukpga/1996/47/contents).

Such disputes can be far more complex and expensive than financial remedy proceedings which form part of a divorce.

That is due, in part, to their being more fact-specific. Those bringing a claim need to demonstrate that they may have had what is known as a “beneficial interest” in the property where the couple lived.

That requires a lot of investigation and takes time.

There is also the considerable risk posed by the fact that claimants may end up having to pay their former partner’s legal costs if their arguments do not prevail.

Although previous attempts to secure the right to financial support for cohabitees whose relationships break up have not succeeded, it is a cause which has already been taken up by the Labour Party this month.

Various media outlets have reported that the Shadow Attorney General Emily Thornberry told the party’s conference that, in the event of Labour winning the General Election, it would move to overhaul rules which, she argued, were “slanted in favour of the bigger earner in relationships” (https://www.dailymail.co.uk/news/article-12614243/Labour-plans-reform-habiting-law-women-rights-couples-split-Emily-Thornberry.html).

The current Government has already rejected the Women and Equalities Committee’s recommendations after “careful consideration” (https://committees.parliament.uk/publications/31430/documents/176284/default/).

Lord Bellamy stated last October that an ongoing reform of divorce law – which has already seen the introduction of ‘no-fault’ divorce (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted) and the start of work on possible changes to how financial settlements are determined once marriages collapse (https://www.lawcom.gov.uk/review-to-examine-50-year-old-laws-on-finances-after-divorce-and-the-ending-of-a-civil-partnership/) – should be allowed to conclude before any review of cohabitation can commence.

Even though positive legislative change is, therefore, some time off, there are still things which people who intend to live together without marrying first can do to avoid the prospect of cost and complications of litigation should their relationships not endure.

They can establish a cohabitation agreement, which sets out who brings what into the partnership and how any joint assets might be divided if they break up.

In addition, it is possible to draw up a deed of trust, which is a legal agreement which specifies the respective interests which a couple – cohabiting or otherwise – hold in a property which they might buy together.

Both types of document involve expenditure but that short-term cost is regarded by many couples and commentators alike as offering an significant long-term gain in keeping the individuals involved out of the uncertainty of potential litigation which only serves to compound the distress of a break-up.