Cohabitation reform: MPs call on government to rethink response to landmark report

The government has been urged to rethink its response to – and, in many cases, rejection of – the cohabitation law reform proposals put forward by the Women and Equalities Committee last year.

The report highlighted the lack of legal protection afforded to cohabiting couples, with Resolution describing their position as one of “legal limbo”.

Key recommendations included an opt-out cohabitation scheme, adoption of a framework concerning intestacy and family provision claims for cohabiting partners, reform to inheritance tax for cohabiting couples, and a public awareness campaign to inform people of the distinctions between getting married, being civilly partnered, and cohabiting.

However, in rejecting most of the proposals put forward by the Committee, the government said existing work on the law of marriage and divorce must conclude before it could consider changes to the law in respect of the rights of cohabitants.

Subsequently, Caroline Nokes MP, Chair of the Committee, penned a letter to Justice Secretary Lord Bellamy KC asking the government to rethink its response, pointing out that the current timetable for financial remedies reform – with a scoping paper not expected until late next year – means cohabitees could be waiting years for changes. Nokes said:

“We see no reason why reviewing divorce and weddings law should prevent the Government from pursuing a separate, bespoke regime for cohabitants now.

We ask the Government to reconsider its response and to provide basic legal protections for millions of people, many of whom face financial hardship if their relationship breaks down or their partner passes away.”

Nokes also took the opportunity to ask when the government will review the information currently available to the public on the legal rights afforded to spouses, civil partners, and cohabiting couples following relationship breakdown and death of a partner. She also queried what further action the government will take to raise awareness of the common law marriage myth that people who cohabit have equal rights to those who are married.

This comes as ONS data revealed in May that a pandemic-stricken 2020 saw the lowest number of marriages since 1838, falling by 61% from the previous year to just 85,770.

What’s more, inheritance claims arising from cohabiting relationships are on the rise. Specifically, the number of claims being made by those who wish to benefit from the estate of their deceased partner with whom they cohabited climbed 284% in the period 2007-2021 from 43 to 165, having reached a peak of 192 in 2020.

“Given the trend of declining rates of marriage, an increase in the age of those getting married and a rise in cohabitation, the WEC is absolutely right to be urging the Government to do more to address the lack of protection for cohabitees and not to put this issue to the back of the queue,” said Abby Buckland, Family Law partner at Kingsley Napley LLP, commenting on Nokes’ letter. She continued:

“A review of the Matrimonial Causes Act and how finances are divided between separating spouses on divorce is, the Government has said, to take priority, but if marriage is increasingly out of fashion, then this is not providing solutions to those families with arguably the greatest need.

Cohabitants have limited rights on relationship breakdown resulting in stark and often unfair outcomes for the individuals affected and their children, particularly when compared to the protection which would have been afforded to them had they been married. The Government has repeatedly failed to extend legal protection in this area but there is overwhelming evidence to suggest this should be a priority.

The WEC is right to highlight that progression is being side-lined with no sense of urgency or resolve.”