Consideration, Cohabitation And Polls: Hope Of Legal Reform? 

Published on 02 June, 2023 | Heidi Molloy

The late Harold Wilson famously quipped that “a week is a long time in politics”.

An MP for more than 30 years, he possessed more than enough experience to make the oft-quoted observation.

Britain during the era in which he twice became Prime Minister was, of course, very much different to now.

Marriage was the norm and cohabitation rather scorned upon.

I wonder, therefore, what Mr Wilson would have thought of figures published by the Office for National Statistics (ONS) in February that unmarried relationships now account for almost one-quarter of all UK couples (https://www.ons.gov.uk/peoplepopulationandcommunity/householdcharacteristics/homeinternetandsocialmediausage/articles/livingarrangementsofpeopleinenglandandwales/census2021).

Cohabitation has become far more popular across all age groups – doubling, in fact, over the last 25 years.

Even so, those men and women who live together without marrying have no real protection if their relationships break down or their partner dies.

They have no recourse through the family courts and must make a claim using property law instead (the Trusts of Land and Appointment of Trustees Act 1996, to be precise).

That remains the case even as the Government prepares to commission a review of how married couples divide their finances when they divorce (https://www.thetimes.co.uk/article/81807458-c699-11ed-84e7-e2697ffed9a9?shareToken=dbe622593b8b38d25199c68a6d325504).

It is a companion to the most significant reform of family law in half a century which came into effect in April last year, meaning that separating spouses no longer need to blame each other for the collapse of their marriages (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted).

There are no shortage of objectors to the legal status quo that applies to cohabitees.

Resolution, the body which represents family lawyers like myself and my colleagues at Hall Brown, has launched a campaign calling for legislation to provide cohabiting couples with a measure of the rights enjoyed by spouses and civil partners (https://resolution.org.uk/campaigning-for-change/cohabitation/).

The campaign was launched months after a House of Commons’ committee – the Women and Equalities Committee – published a report demanding the very same and highlighting the dangers of the persistent myth of the ‘common-law spouse’ (https://committees.parliament.uk/committee/328/women-and-equalities-committee/news/172666/myth-of-common-law-marriage-leaves-disadvantaged-groups-disproportionately-at-risk/).

As compelling an argument as that seemed, the Committee’s appeal fell on deaf ministerial ears.

In November, the Government issued its formal response (https://committees.parliament.uk/publications/31430/documents/176284/default/).

Whilst it agreed with the importance of raising awareness about the distinction between marriage and cohabitation – and the legal limitations faced by those in unmarried relationships – it maintained that was something which would ultimately be successfully addressed by the relationship education syllabus taught in schools across the UK.

The recommendation that there should be cohabitation-specific legislation was rejected after “careful consideration”.

Nevertheless, optimists might take heart from the indication that such a law may not have been indefinitely kicked into the Westminster long grass.

Although draft legislation might not be on the Government’s agenda before the next General Election, in announcing that there would be a consultation on the rules governing financial provision on divorce, Lord Bellamy added that pressure for cohabitation law raised “important issues and the Government [will] keep them under review” (https://hansard.parliament.uk/Lords/2023-03-08/debates/3AB3D708-24E5-4FF2-8481-05EFA27E2593/DivorceFinancialProvision).

The door, then, is not definitively closed. As Harold Wilson noted, political priorities can change, especially if those seeking to rely on electoral support recognise that an issue is regarded by voters as having importance.

In the meantime, though, the risk remains of more unmarried households being established and breaking apart, with the potential for lasting financial damage to parents and children alike.