Why it’s high time cohabiting couples were given rights

On behalf of Attwaters Jameson Hill posted in Family Law on Thursday, April 25th, 2019

Last summer, Rebecca Steinfeld and Charles Keidan sought judicial review of the government’s decision not to make changes to the Civil Partnerships Act 2004 to allow different sex couples to enter civil partnerships. Their victory should see civil partnerships extended to different sex couples by the end of this year. However, there is clearly more that needs doing to bring the law into line with the way that people choose to form relationships in society today.


Myths abound

Despite the number of cohabiting couples increasing rapidly over the last twenty years, there is still a widespread misunderstanding of the lack of legal rights that these relationships confer.

Worryingly, research carried out by the National Centre for Social Research shows that 46% of cohabiting couples believe that common law marriage exists. Worse still, amongst co-habiting couples with children, 55% wrongly believed that their relationship gave them legal rights.

For the estimated 3.3 million couples who live together but who aren’t married or in civil partnerships, the law as it stands can seem out of step and unfair. Regardless of how long they have lived together, they have few rights in relation to each other’s property. If a marriage or civil partnership breaks down, the law will attempt to ensure that the assets are divided as fairly as possible. By contrast, where a home or other property is in the sole name of one of the cohabitants, and there is nothing in writing to prove the other party’s entitlement, then they are likely to have no grounds for a claim. This can be particularly hard where the relationship is a longstanding one.


Fairer measures needed

Commenting on the current state of the law, Joytie Henchie, Partner and Head of Family, said: “As Family lawyers, we have long supported the campaign for an improvement in the legal position of cohabitants. Although it is possible to help couples put some safeguards in place, such as a cohabitation agreement that sets out amongst other things what should happen to any property or financial arrangements they have together if the relationship ends, and Wills in which they each specifically make provision for the other, these measures don’t put them on an equal footing with those who are married or in civil partnerships. It’s high time the law truly reflected the way our society works today.”

For cohabitants, everything from access to bank accounts and inheritance (if one partner dies without leaving a Will) to bereavement allowances and inheritance tax breaks, and even parental responsibility and next of kin status can be affected. Cohabitees can’t claim spousal maintenance or claim a share of each other’s pensions in the way those in marriages and civil partnerships can.

There would of course have to be restrictions. For instance, no one would expect those who have lived together for just a few months to have the same rights as those couples who have been together for many years, but there is now a groundswell of opinion that says that it’s time that the law in this area is reviewed and updated.

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