Following the closure of the government’s consultation on cohabitation reform, opponents of the proposals have shared concerns that imposing rights on an unsuspecting public with no clear mandate is unconstitutional. Earlier this week, it was suggested by one high-profile newspaper editor that the reforms had been engineered by the legal profession to boost dwindling fees. Barrister and mediator Jacob Gifford Head disagrees, and argues his experience of the family courts offers evidence that many vulnerable people will gain protection from the reforms.
There has been much coverage of the government’s recently-closed consultation A fairer end to relationships, which proposes changes to the law of financial remedies, intestacy and, most notably, cohabitation and separation.
The flagship proposal is that partners “living together as a couple in an enduring family relationship” for three years or more or who have had a child together would be able to bring a needs-based claim for financial relief within two years of separation.
Some of the commentary has not been positive. In the New Statesman, Rachel Cunliffe described it as a “mad idea”. On social media, the Financial Times associate editor and columnist, Stephen Bush opined that it was a “devil makes work for idle hands” campaign, suggesting that “[d]ivorce is way down, so a group of legal professionals instead campaign for a change that would, in practice, create more misery than it avoided.”
Common themes
Reading the criticism of the proposals, a number of themes emerge.
These include that a couple could marry for little cost or effort in a registry office – or register a civil partnership if they have a moral objection to marriage – and that the state should not intervene to protect those too indolent to do so. Some are worried about a limitation on their current ability to live together whilst strictly separating their finances. Others point to the risk of fraudulent or abusive claims: a person could force themselves on another and then bring a claim.
These points are fairly made. However, since many of them do not come from those with experience of practising in the related fields of family and civil cohabitation law, they seem to miss the real harm to the vulnerable that could be ameliorated by a rebalancing of the law.
My views, in particular, were changed by meeting two categories of people who would particularly benefit from reform which I would like to discuss here.
The endless engagement
I have met a number of women and smaller number of men who have been subject to a specific form of coercive control: they cohabit, moving into a house that is legally registered in the sole name of their partner, giving up work to bring up children, on the promise of marriage which never materialises and is forever postponed.
As a result, on separation, they are often left with few financial resources in their name, limited earning capacity and few legal remedies, especially if their partner waits until any children have turned 18 before ending the relationship, precluding both child maintenance and any claim under Schedule 1, Children Act 1989.
The civil courts have attempted to assemble remedies for people in these positions, put together from concepts such as common intention constructive trusts, proprietary estoppel and, in the case of formerly engaged couples, a patchwork of exotic statutory provisions including s. s.2(2) Law Reform (miscellaneous provisions) Act 1970.
However, often there is still nothing that can be done for them and so a bespoke remedy is needed.
Religious non-marriages
A related problem can arise if the couple have solely entered into a religious marriage which is not recognised by the state. Although some couples choose this option deliberately, in my experience this is relatively uncommon. I have met a number of people who realised that they were not regarded as married by English and Welsh law after separation.
The potential harm was outlined by the Law Commission in its 2022 paper Celebrating marriage: a new weddings law, which observed that: “Although not exclusively arising in the Islamic community, research suggests Islamic couples who have a nikah ceremony might be especially likely to be among those who do not have an additional, legal wedding ceremony”.
It suggested that the complex reasons for this may include “pressure” not to have a legal wedding ceremony and the consequences might include “individuals, disproportionately women and the children of these relationships, [suffering] serious financial difficulties when the relationship ends or when their partner dies.”
This is a scenario which I have seen several times and is compounded by the relative ease, according to most Sharia schools, of a husband ending such a marriage. In abusive relationships this can be used, coercively, as a threat to leave a wife with nothing: a harm that could be remedied by the reform proposed.
Additionally, this problem is why I also welcome the government’s proposals to reform the law relating to marriage. They are currently out for consultation under the name Tying the knot: reforming weddings law in England and Wales. I hope, if enacted, far fewer people will enter into a religious marriage which is not recognised by the state, unless they freely and knowingly choose to do so.
A bright line?
Whilst I accept that problems will inevitably arise if they changes are implemented, particularly with disputes about whether someone was, in fact, cohabiting, and that there is the potential for new forms of abuse, I also think some of the concerns may be overstated.
In particular, a cohabiting couples’ finances are already interlinked or capable of being interlinked by the law. A surviving partner may bring proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision from their deceased partner’s estate, and family lawyers will be familiar with claims under Schedule 1.
Additionally, some benefits are explicitly be means-tested against couples whether or not they are married.
Since there does not exist, and has existed not for many decades, a “bright line” between the treatment of unmarried and married couples’ finances over which this reform will trespass, I therefore think this principled objection cannot stand in the way of reform.
Final thoughts
It has been interesting to read criticism of something which the majority of family lawyers I meet think is both welcome and overdue. But this is a case where I think experience of meeting ordinary people who are left without much by the current law is helpful and shows why change is essential.
About the author
Jacob Gifford Head is a barrister and mediator who practises from Thomas More Chambers in London in family and civil law, with a particular interest in cases which overlap the two fields, including those involving cohabiting couples.
