Debate on Cohabitation Reform
On 7th December 2023 The Family Justice Council held its 16th annual debate. The full recording can be found here. The question was whether or not the law should be reformed so that unmarried couples (or ‘cohabitants’) have the same rights as married couples. It was chaired by Sir Andrew MacFarlane, President of the Family Division.
The Case for
Dr Andy Hayward took up the role of first speaker to make the case for the motion – arguing that this country’s laws on protection for cohabitees are inadequate in so far as they actually exist. We have summarised his argument below:
Principle
1. The cohabiting family is the fastest growing family form and currently 1 in 5 couples are cohabiting. That figure is expected to rise to 1 in 4 by 2031. For the first time since records began in 1845, over half of births last year were to unmarried mothers.
2. Cohabitants are prone to just the same sorts of relationship generated disadvantage on separation as married couples, without being able to rely on the same levels of protection.
3. The protection which does exist for unmarried partners is esoteric, costly and unpredictable to litigate; too easily bulldozed by the financially stronger party. The remedies are also considerably weaker.
4. Informing the public about these issues has been tried and has failed. Over half the population still believe in the concept of “common law marriage”; meaning they have a falsely inflated view of the protections which exist for them. There are also examples of people who have gone through non-binding religious marriages and find they do not have the legal status they expect on separation. The reforms would simply be bringing into reality the expectation of many.
5. The lack of protection impacts more women than it does men and can be seen as indirectly discriminatory. Women are more likely to be taking on the majority of domestic care. Children are also vulnerable to discrimination as a consequence of the relationship status of their parents.
6. The suggestion that granting rights to cohabitants waters down the institution of marriage fails to recognise the fundamental reality that most people do not get married with an eye on their statutory rights. In other countries that have introduced equivalent reforms, the marriage rate has not been affected.
7. Trigger points for a relationship to acquire these rights could relate to length of cohabitation or the having of a child. This firm would suggest the concept of a relationship generated financial detriment in a broader sense might also be helpful. Australia and New Zealand have allowed couples to access virtually the same rights as spouses based on de facto relationship laws for decades. In Australia it means living together for two years and having a child, and New Zealand raises the threshold to three years.
8. Introducing these protections can be done in a nuanced way. It does not need to cover any form of short relationship, or protect couples who have kept their finances entirely separate in the same way as it might do another couple. We can trust our judges to exercise a form of discretion in much the same way that we trust them to do so in the case of married partners.
Pragmatism
9. We should resist the temptation to introduce a significantly watered down regime for financial rights as compared with spouses. This has been tried in Scotland and in Ireland and has resulted in ineffective support. The Scottish commission is currently reviewing their laws in the area and Ireland only has 8 reported cases of the law in action.
10. We should recognise that for many cohabiting couples they are just as fundamentally committed and intertwined as married couples.
The Case against
First speaker for the opposition was Sir Paul Coleridge, who is chairman of a UK-based think tank known as The Marriage Foundation, speaking against the motion as follows:
1. Even if we accept that existing protections for cohabitants are inadequate, it does not follow that there should be no distinction between cohabitants and married partners.
2. He drew on recent personal experience when a family member had been joined in marriage and in doing so had taken solemn and explicit vows. The question he posed is should the State have the right to impose upon a couple a set of rules and responsibilities which they have not themselves chosen.
3. It is perfectly legitimate for many cohabitants such as young, dual earners, who might qualify for these additional protections, to simply go their separate ways on separation without entangling themselves in a formal legal mechanism.
4. This additional entanglement will have a compounding impact on the welfare of children who are so often the unintended victims of antagonistic separations. Unmarried cohabitants are 3x more likely than their married counterparts to separate.
5. Entering into marriage is a meaningful step which changes the character and commitment of a relationship. There is no longer any ambiguity about the intentions of either partner or the intended length of the relationship. The statistical probability is that people who do take the step to get married are more likely than not to stay together for life. This is not the case for cohabitants who are statistically more likely than not to separate before their children reach their teenage years.
6. Giving marriage rights to all cohabitants undermines commitment. The decision should be for the couple. Do they want to enter into the protections and legal responsibilities as married couples or do they not. The best way to safeguard the welfare of children is to allow their parents to make that choice.
Conclusion
This is a subject which clearly attracts strong feelings and everybody forms their own view on this subject.
We would tentatively suggest that there is a kernel of a consensus building amongst the family law profession (if not necessarily the wider public) that some form of additional protection for unmarried partners would provide a valuable safety net for people who are currently troublingly underserved by the prevailing statutory framework.