Securing cohabitation reform: building a movement and why collaboration matters

We know that families come in different shapes and sizes. Marriage is statistically on the decline and an increasing number of couples are choosing, for a variety of different reasons, not to marry. But despite the prevalence of cohabitation and it now being the fastest growing family form in England and Wales, the law remains complex, outdated, and unfair.

Many members of Resolution will be all too aware of the law’s deficiencies. Unlike spouses and civil partners, cohabitants cannot have their property divided fairly by the court nor can they claim maintenance. Instead, any relationship-generated disadvantage must be addressed by the general law of property, trusts, and contract which, in most instances, is inadequate as it was never developed with cohabitants in mind. This aspect is not merely a concern for academics. The law has real life impact for couples too, as shown by a 2017 Resolution member survey where 98 per cent of respondents believed they were unable to help their clients owing to the lack of legal protections.

Most recently, these issues were spotlighted by the Women and Equalities Committee of the UK Parliament that in 2021 undertook an inquiry into the Rights of Cohabiting Partners. Informed by a public consultation, the Committee recommended increased public awareness and the introduction of an opt-out regime along the lines of the scheme proposed by the Law Commission in 2007. Drawing upon oral evidence provided by Graeme Fraser to that Committee on behalf of Resolution, the report recognised that the law was simply not fit for purpose and that reform was needed as a matter of urgency. Unfortunately, in November 2022 the Government largely rejected the Committee’s recommendations and has paused any consideration of this issue until the Law Commission’s recently announced review of financial remedies law has been completed.

For us, cohabitation reform simply cannot wait that long. It has been 40 years since the infamous Burns v Burns [1984] Ch 317 case exposed the unfairness of the law and not much has happened since. We continue to use the problematic concept of common intention as the basis for determining property ownership and financial contributions to the home remain prioritised over non-financial ones. Public awareness of the issue has not improved either. A survey led by Professor Anne Barlow in 2019 revealed that 47 per cent of the population were under the incorrect impression that cohabitants have a common law marriage giving them the same legal rights as if they were married. Despite educating the public about these issues, it is clear the message is not getting through. It is time for action.

Introducing Family Law Reform Now

This need for change provided the impetus behind Family Law Reform Now (FLRN). Led by Dr Andy Hayward, the Cohabitation Project of FLRN brings together academics, practitioners, and policymakers to strategise, collaborate, and push for much-needed reform in this field. The Cohabitation Project is supported by Dr Sharon Thompson (Cardiff Law School) and Dr Ellen Gordon-Bouvier (University of Exeter) and is part of a broader network of FLRN initiatives coordinated by Dr Charlotte Bendall and Dr Rehana Parveen, both based at the University of Birmingham.

The Cohabitation Project started work with a hybrid conference held at the Inner Temple in January 2023. Bringing together over 150 delegates, the one-day conference heard from leading academics and practitioners in the field with a view to exploring ways of securing reform. Comparative family law took centre stage with delegates hearing from the Scottish Law Commissioner, Kate Dowdalls KC, on their recent reform proposals and from Dr Kathryn O’Sullivan (University of Limerick) on the workings of the Irish regime. Preliminary findings of a large comparative study by Professor Jens Scherpe and Dr Andy Hayward were outlined prior to their publication later this year by Intersentia as a book entitled The Legal Status of De Facto Relationships. The book explores cohabitation in 38 jurisdictions spanning six continents. A particular highlight of the conference was a presentation by former Chair of Resolution and Chair of its Family Law Reform Group, Jo Edwards, who offered reflections on Resolution’s high profile and successful campaign to secure no fault divorce.

In November 2022, building on their successful campaigning work around no-fault divorce, Resolution asked its members to share their views about the changes they would like to see to family justice. This research seeks to shape Resolution’s campaigning and lobbying activities and its wider vision for family justice. More than 1,000 members completed the survey. Members identified legal rights for cohabitants on separation as a top priority for future campaigning.

Cohabitation reform will therefore form a key part of the full report from Resolution’s Vision for Family Justice survey, due to be published later this year, to help make Resolution’s campaigning and lobbying work even stronger in 2023 and beyond, as Resolution seeks to advise the Government on a better way for separating families.

In the meantime, in addition to setting out Resolution’s position on cohabitation reform at the FLRN Cohabitation conference in January, Graeme Fraser also presented at Edinburgh Napier University in April, where interest from Scottish practitioners about the position in England and Wales remains high. Cohabitation featured as a key theme at the recent Five Jurisdictions Conference, also held in Edinburgh.

Resolution’s position on cohabitation reform can be summarised as follows:

• Resolution calls for a legal framework of rights and responsibilities when couples who live together (without being married or civil partnered) split up to provide some legal protection and secure fair outcomes at the time of their separation.
• Once eligibility criteria are met indicating a committed relationship, Resolution proposes that the court be able to make similar orders as they do on a divorce or dissolution but on a very different and more limited basis unless the couple chooses to “opt out”.
• The court would have flexibility to adjust property rights. The court would be allowed to tailor provision to the cohabitants’ particular circumstances.
• Awards might also include payments for childcare costs to enable a primary carer parent to work.
• Cohabitants should be able to apply for maintenance to reflect the economic advantages or disadvantages caused by the relationship. Maintenance would be for a limited period to enable a cohabitant to adjust to the loss of financial support before becoming self-supporting.

In addition, extending the range of orders and the criteria to be considered under Schedule 1 of the Children Act 1989 could provide a better legislative safety net for children of those left most vulnerable on relationship breakdown.

• Upon death, a cohabiting partner should have entitlement under the intestacy rules, subject to conditions. Resolution supports the introduction of the draft Inheritance (Cohabitants) Bill annexed to the Law Commission’s 2011 recommendations to reform intestacy and financial provision claims.
• Cohabitants should be treated the same as married couples and civil partners for tax purposes on death to enable them to benefit from the same exemptions in relation to Inheritance Tax.

For the campaign for cohabitation reform to ultimately succeed, we need to accept that more of the same is no longer enough. We need to take the action necessary to reset the campaign for legal reform and cohabitation law. We need to recognise our responsibility as family lawyers to do the right thing. It’s our duty to raise public awareness to cohabitants to protect individuals, especially women and children. Educating and informing the public will be key to achieving this, with a particular focus placed on marginalised and vulnerable groups most impacted by the unfairness of our current laws. Dispelling myths and correcting misinformation are the best way for an informed public to be able to hold the UK Government accountable for laws that are no longer fit for purpose.

We also will need to re-energise ourselves and re-engage key stakeholders such as MPs, the media, and other lawyers. This will require both strategic and creative thinking, and an integrated, multi-channel approach. It requires collaboration too. Indeed, one of the key aims of FLRN is to offer a forum to academics and practitioners, especially Resolution members, to share their experience, insights, and wealth of expertise. This connection not only allows us to build momentum among individuals committed to cohabitation reform but also ensures that future reform proposals fully appreciate how the law might operate in practice.

We are looking to expand the Cohabitation Family Law Reform Now network. If Resolution Members would like to hear more about our activities and future events, email Dr Andy Hayward at a.p.hayward@durham.ac.uk to join our mailing list. We very much hope the Cohabitation FLRN Project can follow in the footsteps of the successful campaign for no fault divorce and finally secure reform.

Dr Andy Hayward is an associate professor in family law at Durham Law School, and was specialist adviser to the Women and Equalities Committee Rights of Cohabiting Partners Inquiry. Graeme Fraser chairs Resolution’s Cohabitation Committee.