Women & Equalities Committee: end “inferior” protections for cohabiting couples

Calls for cohabitation law reform are being led by a group of cross-party MPs who say that cohabiting couples have “inferior” protections to those who are married or within a civil partnership.

The Women and Equalities Committee has published a new report titled “The Rights of Cohabiting Partners”, highlighting the lack of protection against the risks faced by cohabiting couples, with cohabitation being the fastest growing family type in England and Wales. In 2021, there were around 3.6 million cohabiting couples in the UK compared with 1.5 million in 1996.

A summary of the report reads, “Notwithstanding the legal reality, many people believe in the so-called ‘common law marriage myth’, which is the erroneous belief that after a certain amount of time of living together, the law treats cohabitants as if they were married”.

In reality, upon the breakdown of a family, cohabitants “must rely on complex property law and trusts principles”, adding that “Schedule 1 to the Children Act 1989 is outdated, mostly benefits the children of wealthy parents and is in need of reform. On death, cohabitants do not automatically inherit from their partner”.

Many of the risks faced by cohabiting couples affect women in the main. The report continued:

“The lack of legal protection on family breakdown means that women, including women from an ethnic minority background and those who have had a religious-only wedding, can suffer relationship-generated disadvantage.

It is time the law adapted to the social reality of modern relationships while still recognising the social and religious status of marriage.”

The report went on to make several key points and recommendations, including:

• The Government should legislate for an opt-out cohabitation scheme as proposed by the Law Commission. The Ministry of Justice should commission a refresh review of the recommendations to see if they need updating.
• Support for the Law Commission’s 2011 proposals concerning intestacy and family provision claims for cohabiting partners. The Committee calls on the Government to implement those proposals. The Government should also publish clear guidelines on how pension schemes should treat surviving cohabitants when claiming a survivor’s pension. The Committee recommends that Ministers review the inheritance tax regime so it is the same for cohabiting partners as it is for married couples and civil partners.
• Finally, the Government should launch a public awareness campaign to inform people of the legal distinctions between getting married, forming a civil partnership and living together as cohabiting partners.

Reacting to the publication of the report, Graeme Fraser, Chair of Resolution’s Cohabitation Committee, said:

“The lack of rights for cohabiting couples has seen millions of people – often women – at significant financial risk if their relationship ends or their partner passes away. Now is the time for ministers to finally grasp the nettle and reform laws to ensure cohabiting families have better legal protection.

Cohabiting families are the fastest growing family type in England and Wales and yet lack even the most basic legal protections. Ministers have a moral obligation to act now to protect them – otherwise, left unreformed, the current law will consign even more families to misery and dire financial hardship.”

Mr Fraser, who provided evidence to the Committee during its inquiry, concluded:

“Resolution members have been campaigning for the law to change for many years. With the publication of this report adding to the growing number of calls for reform – including from the Law Commission – we now call on the Government to take forward the committee’s recommendations and end the legal limbo faced by millions of families in England and Wales.”

Responding to the report, Emily Deane, Technical Counsel & Head of Government Affairs at STEP, said:

“STEP welcomes the publication of this report and supports many of the recommendations that it makes. We agree with the Committee that legal structures are needed to provide protection for people who co-habit but are not married.

We support the Committee’s call for a public information campaign that would help dispel the myth that ‘common law marriage’ exists in England, Wales or Northern Ireland. We would be happy to work with government on this and use our global network to dispel this damaging and longstanding misconception.

While each co-habiting couple’s situation is different, we called for a new model in our submission in which co-habiting families would be covered by legal structures giving them specific rights. Because one size does not fit all, families could also choose to opt-out of these arrangements and make their own financial plans. We are pleased that the report’s recommendations are in line with what we suggested.

We are also delighted that the report recommends that the inheritance tax regime should be reformed so it is the same for cohabiting partners as it currently is for married couples and civil partners.”

Neil Russell, Family Law Partner at Seddons, noted the risks that these couples face and the current impotence for them to get married:

“Cohabitees often believe that they are ‘common law spouses’. There is no such thing. It is a myth. You are either married or you are not. Unlike for married parties, entitlement to share in a home is not automatic for the non-owning party. Only strict property rights apply. There is no entitlement to maintenance, other than for children. Also, there is no entitlement to automatically inherit on death or to share a pension.

People need to be informed of the potential dangers of not securing their position in the event of a relationship coming to an end on the break up, or death of a party where they are not married. The number of cohabiting couple families continues to grow faster than married couples. Is it time for reform to provide cohabitants with greater legal protection?”