Cohabitation reform: The great FJC debate

In this article I report on the Family Justice Council (FJC) annual debate, held on 7 December 2023, on the motion: Should cohabiting couples have the same financial rights and responsibilities as those who are married/in a civil partnership? The debate was introduced by The Right Honourable Sir Andrew McFarlane. Dr Andy Hayward (Durham Law School); Michael Horton KC (Coram Chambers); and Dr Sheena Webb (consultant clinical psychologist) spoke for the motion. Sir Paul Coleridge; Elizabeth Darlington (1GC Family Law); and Professor Rebecca Bailey-Harris (1 Hare Court) spoke against the motion. It was made clear that while the speakers had been allocated to a side of the debate, they may not be representing their personal views on the topic. This was followed by Q&As and a vote on the motion cast by 89 attendees.

Arguments in support of the motion

Dr Andy Hayward supplied two reasons for supporting the motion: principle and pragmatism. As for principle, cohabitation is the fastest growth of family type with 1 in 5 couples currently living together without being married or in a civil partnership, and with this figure set to increase to 1 in 4 within 10 years. Additionally, since 2022 more children are born to unmarried mothers than those who are married.

The law is reliant on esoteric trust principles. Litigation is unpredictable and cohabitants lack important remedies such as maintenance. People do not understand the law due to the proliferous wrongly held belief in the common law marriage myth. The length of the relationship is wholly ignored if one of the parties failed to make any financial contributions. Hence, giving up work to look after children leaves women vulnerable upon separation or death of their partner, especially when it is appreciated that women statistically still do the lion’s share of care.

This results in unfair outcomes. How can it be fair that women who are married have their needs satisfied and benefit from sharing the marital wealth, but by contrast unmarried women in the same circumstances get nothing? Their childcare and sacrifices made during the relationship are the same. Is it not the case that children are being discriminated against due to the marital status of their parents?

Marriage is not devalued by cohabitation rights. Personal fulfilment and love are reasons to marry. Providing rights to cohabiting couples does not stop marriage. The reason why marriage rates are low has nothing to do with the numbers living together. We have tried public awareness, but it has not worked. So, why not treat spouses the same as those who are living together, when in both those relationships they have a child together?

Andy argued that we should ignore the French PACs type of registered relationship or similar, which will not help in this situation.

De facto relationship recognition has been possible in Australia for many years. These relationships bring rights along the same lines of marriage if the couple have been living together for two years in Australia or three years in New Zealand, or the couple have children. There are safeguards as to when these rights apply. It will be the case that some couples will not satisfy the definition of de facto, especially those in transient relationships. Equally it may not be equitable to divide their interests in the same way as married couples in these circumstances. This protects later in life couples or young couples. The scheme can be disapplied by allowing the couple to apply their own arrangements. The beauty of this system for England & Wales is that it is ready to go; the statutory framework that applies under the Matrimonial Causes Act 1973 is already available. This allows our judges to provide their own bespoke solutions.

As for pragmatic reasons for reform, the experience of Scotland and Ireland reveals that policy makers struggle when cohabitation law is not based on the same rights as marriage. It becomes a bit of sharing, a bit of compensation and a few remedies. This experience has prompted the Scottish Law Commission to make recommendations for the review of their law and explains why Ireland has only eight reported cases.

Ultimately, and as Mr Justice Edis asked in a case concerning bereavement damages for cohabitants, “is their love not equal?”.

Michael Horton KC argued that other countries who had introduced new laws along the lines of this motion had been successful. Giving greater legal rights to cohabiting couples would not be intrusive. The idea that cohabitation was a less committed form of relationship was very outmoded. Law reform is also needed to improve rights on intestacy for cohabitants.

While it is true to say that cohabitation law would be an interference in family life, the truth is that all family law is such an interference. Marriage does not fall outside the confines of the law. Every aspect of marriage is regulated by the state. The legal effect of the ceremony is imposed by the law. The couple must maintain each other.

The justification for legal regulation is the same for cohabitation and for marital relationships. Those who do not like all the obligations of marriage have the option to enter prenuptial agreements. Similarly, couples would be able to enter into pre-cohabitation agreements. A couple would not need to take on the same commitment as being married if they so opted.

Although people see marriage as a serious commitment, cohabiting couples are also committed to each other. The idea that there is a lack of commitment hearkens back to the 1990s.

Section 41 of the Family Law Act 1996, which provided demarcations for cohabitants and former cohabitants in respect of occupation orders, was repealed in 2004 because it was irrelevant to family law in the 21^st century.

In 2011 the Law Commission published a report after reviewing the whole of the law of intestacy. The Law Commission considered that commitment in a cohabiting relationship mattered to the extent that their rights on intestacy should be the same as if the couple were married to each other. Couples could continue to have an opt out by being able to make Wills. There is no longer any excuse not to give cohabiting couples the same rights on death as married couples.

Dr Sheena Webb read out a letter from a woman who had been her patient describing how she felt when left with no rights because of a cohabiting relationship, with the added difficulty of coercion and control applied by her former partner. The level of fear created had made a significant impact on her mental health because of her fear of what might happen in the future. This would mean a huge loss of lifestyle as well as the deprivation of her former home. The long-term consequences of the power imbalance that exists as a result of not getting married will continue until the law is reformed, impacting on the emotional health of the person who is being deprived of their legal rights, being at the behest of another person.

Arguments opposing the motion

Sir Paul Coleridge opened by commenting that the motion was not whether cohabitants should have any rights at all but whether they should have the same rights and responsibilities as married couples, in other words those who happen to live together should have their freedom swept away and treated as if they were married. When the Law Commission had looked into this in 2007, they rejected the notion that all distinctions between cohabitation and marriage should be removed.

Marriage involves a formal and significant contract. By what principles of law, theology or logic should the state be allowed to impose the same rights on two individuals without their consent? This would produce a quasi-marriage situation for all breakups. This would create a whole new body of case law and be incredibly intrusive into people’s private lives. The couple should be allowed to decide the extent of their relationship free from state interference.

Family breakdown – bad for children and adults – is three times more common when there had been a cohabiting relationship. Cohabitants will probably not remain together when their children reach their teenage years. Couples should think seriously about the nature of all relationships.

Extending the same rights as marriage would be a dangerous and ill-considered step. Clear blue water should be kept in terms of the legal distinction between marriage and cohabitation. He conceded that cohabitants could possibly have some rights but most certainly not the same rights as those available to married couples.

Elizabeth Darlington said that most property related disputes are governed by TOLATA 1996. The current law provides clarity and consistency. Giving more rights to cohabiting couples would lead to more uncertainty. Property transactions must be done in a written formal manner.

She quoted from Lord Sales’s speech on proprietary estoppel at the Modern Studies in Property Law Conference in 2022 in which he said:

“strict formalities promote justice for society as a whole, and at a general level, by promoting legal certainty and reducing the scope for costly disputes. They provide people with workable frameworks through which to manage their affairs, with the knowledge that – provided they have done what is required of them – the law will provide protection to them. In an important sense, therefore, formalities rules are facilitative tools which promote individual freedom and autonomy. If I comply with the rules, I will produce particular intended effects. I can do so with assurance that the law will give effect to my intentions; and if I do not use the tools, then I will keep my property and not be affected by obligations which I did not intend to assume.”

Cohabiting couples can rely on constructive trust principles in which relevant contributions can include whether they have children for whom they both had responsibility to provide a home. Proprietary estoppel has also developed to prevent unconscionable conduct. Remedies include not only orders in respect of beneficial interest but also lump sum payments. These cases are dealt with in the civil courts to enable the swift disposal of disputes.

If a couple have children, they can make an application under Schedule 1 to the Children Act 1989 or have child maintenance assessed by the Child Maintenance Service.

Those who choose to marry have the rights conferred by the Matrimonial Causes Act 1973 to include the redistribution of savings, and to invoke the powers to make spousal maintenance. Section 25 factors are the discretion that is provided to the Family Court. As the number of cohabiting couples is increasing, extending these rights to them would mean a huge extension of their rights and responsibilities, meaning that many people would no longer know where they stood.

There would be difficulties in respect of jurisdiction and definition. When should these rights and responsibilities commence, and which couples would be ineligible?

Why should these rights not apply to also relatives living with elderly relatives or platonic couples?

There is currently too much pressure on the Family Court. People should be able to rely on the certainty of the current law without undue concern for legal obligations imposed on them with no agreement. Cohabiting couples should not therefore need or have the same rights as those of married couples.

Professor Rebecca Bailey-Harris explained that under Australian law, a de facto relationship is defined as a couple living on a genuinely domestic basis having regard to all the circumstances, which may include the duration of the relationship; commonality of residence; the existence of a sexual relationship and a mutual commitment.

In New Zealand law, de facto relationships are more loosely defined and are not exclusive to binary couples. The case of Paul v Mead has seen the law in that country develop to include polyamorous relationships.

A bespoke scheme would be more preferable in looking at financial advantage or disadvantage to determine the financial outcome or the French PACs scheme that enables a couple to write up their own terms.

In the case of VV v VV [2022] EWFC 41 Peel J indicated that deciding cohabitation in the context of a couple whose marriage lasted five months was fact specific, which questions the notion of whether pre-marriage cohabitation can fairly be considered as akin to a marriage.

Q&A session

I asked Elizabeth Darlington whether the application of constructive trust principles make the law more certain, ie fair, as I considered that no-one in everyday practice understands the legal concepts and they don’t work properly or reflect family life. Elizabeth acknowledged my comments about constructive trust principles but also referred to case law developments extending the doctrine of proprietary estoppel.

Dr Andy Hayward accepted that the factors set out in Stack v Dowden had created considerable confusion and looking at elusive party intentions as to property ownership does not help. Most practitioners did not want to go to court because the property law principles are so unclear. Reform would mean judges would create principles under a new law that would then become relatively predictable. When determining the existence of a qualifying cohabiting relationship, judges could look at a range of factors such as the intermingling of assets, the presence of a sexual relationship and the couple’s subjective intentions.

Jo Edwards (Chair of Resolution’s Family Law Reform Group) asked Sir Paul Coleridge what he felt having heard the letter read out by Dr Sheena Webb in the sense that denying the same options to cohabitants to those available to married couples seemed wrong. He replied by saying that cohabitation was different to marriage in that the commitment of cohabitation does not have the same mutuality as those committed to marriage, while also lamenting that introducing opposite-sex civil partnerships had not resulted in the desired uptake.

Sir Paul acknowledged that the legal position of cohabitants was a mess. He would not oppose improving rights under Schedule 1 to the Children Act 1989 with a guillotine operating when the children reach 18.

Rebecca Bailey-Harris said that reform of the weddings law should be a priority to enable us to thrive as a multi-cultural society.

Josh Viney (1 Hare Court) asked whether a new cohabitation law should be informed by the principles of needs, compensation and sharing that apply to financial remedies on divorce. Michael Horton KC agreed that all three should apply, but Sir Paul Coleridge said it should be a needs-based jurisdiction based on Schedule 1 where there has been a parental relationship but with no further extension to the law.

The vote

The motion was carried by a vote of 48 in favour of the motion and 41 against. In closing the debate, McFarlane P commented that the vote had indicated where family lawyers are positioned generally with regards to the prospect of cohabitation law reform.

Comment

Rt Hon Emily Thornberry MP at the launch of Resolution’s Vision for Family Justice, November 2024

Having spent most of my career advocating improved legal rights and responsibilities for cohabitants, there are indicators that the politicians are finally moving towards substantive reforms in England & Wales. At the Labour Party Conference in October 2023, Shadow Attorney-General Emily Thornberry MP announced that a Labour government would reform the law for cohabiting couples. In November 2023, at Resolution’s Parliamentary Launch of the Vision for Family Justice, she reiterated that commitment as well as calling for reform to be part of a cross-party initiative, an idea that was embraced and welcomed by Conservative MP Siobhan Baillie. These are significant steps on the long and winding road to cohabitation law reform, although the political landscape will remain unclear until after the next UK general election.

These developments and the debate itself suggest therefore that the questions about cohabitation law reform are no longer “if” but rather “how” the law should be changed, which may also depend largely on the political complexion of the new Parliament and government. A Labour government with a large majority may be enthused for example by the idea of a more radical approach of equating cohabitation with marriage on a platform of advancing women’s rights, since women are often seen to be those most likely to lose out under the current law. On the other hand, if there is a smaller majority or coalition, this may mean that law reform would be more akin to the Law Commission’s recommendations dating back to 2007, probably updated to consider reducing the risk of economic abuse, discrimination to women and adverse impact on couples from ethnic minorities. This model for law reform also seems more likely in the event of a genuine cross-party initiative. Most successful family law reform in England & Wales has ended up being the result of a measured approach and agreed on a cross-party basis.

If we get to this point, however, the practicalities and timing will also have to be considered. Any new laws must be fit for purpose and benefit those for whom they are intended, and careful thought will be needed to ensure that these are new laws that work well in practice. Creating new laws in this country notoriously takes a long time, as we have seen with no-fault divorce in recent years. It will depend largely on the stability and certainty of the new political landscape, which has been turbulent for at least most of the last decade.

While I am among many family law practitioners who see the unfairness of current laws in everyday practice and welcome the added impetus to cohabitation reform which we have seen lately, there is considerable work to be done to get these important reforms over the line. Winning the logical argument that reform is necessary has been significant, but achieving it will take considerable work requiring a union of legal professionals, informed academics, politicians, the media and the general public to achieve the legislation needed to ensure that family law is fair for cohabitants and provides a durable solution to the current issues arising from our outmoded and unfit laws.

GFraser@bbslaw.co.uk

The author acknowledges the assistance of Dr Andy Hayward and Elizabeth Darlington in the preparation of this article, which was authored for LexisNexis Family and will be published in the March issue of that journal. It is printed here by kind permission of LexisNexis in recognition of the topic’s importance.

Read Resolution’s Vision for Family Justice.