Lauren Lucas - University of York
An assessment of Resolution’s statement that “Government and Parliamentarians have a responsibility to address the discriminatory impact of our outdated law relating to cohabiting partners and to bring the rights and responsibilities of couples living together…into the 21st century.”
The saying ‘cohabitants ignore the law, so the law ignores them,’ summarises the current legislative approach towards unmarried cohabitation. The government has a responsibility to update the law, which is plagued by complexities and misunderstandings, with the prevalence of the ‘common law marriage myth’ further complicating matters. The reliance on trust law risks serious discriminatory impacts for weaker financial parties, notably women.This essay will address these issues and the failure of the law to reflect societal expectations. It will address autonomy arguments opposing reform, before analysing and favoring arguments for the protection of economically vulnerable partners. This essay will suggest how reform can mitigate concerns about undermining marriage.
Importance of reform
As the fastest growing family type, with around 3.6 million cohabiting couples in the UK in 2021, compared to 1.5 million in 1996, it is increasingly important to align cohabitation law with the public’s expectations and 21st century social norms. The greatest change in couples cohabiting is found in those aged 25 to 29, increasing from 56.5% in 2011 to 71.6% in 2021. This indicates a reduced marriage rate and increased age of marriage, leaving far more couples unprotected. Despite this, there seems to be little political will for reform.
Disputes under Trusts of Land and Appointment of Trustees Act 1996 (TLATA)
Due to the unformalized nature of cohabitants’ relationships, they must rely on ‘a patchwork’ of complex rules from property, trusts and contract law, upon separation. The crucial difference between relationship breakdowns under property law and divorce proceedings under Matrimonial Causes Act 1973, is that family law prioritises meeting needs, sharing the ‘fruits of the partnership’ and compensating for relationship-generated disadvantage, considering contributions to the welfare of the family. Comparatively, cohabitants have no automatic ownership rights to each other’s property, meaning that the starting point of all disputes is that beneficial ownership mirrors legal title.
This is the crux of the problem. The overemphasis on legal title leaves the economically weaker party in a fragile and inequitable position upon separation. Where a shared home is legally in the name of only one cohabitant, the other must establish a beneficial interest in trust, either by evidencing direct financial contribution to the acquisition of the property or a common intention of shared ownership which was relied on to their detriment. The discriminatory impact lies in the implausibility of proving common intention, with the majority of cases concerning contributions dating back decades. The struggle of proof unevenly falls to women, who have had a lesser financial but greater family responsibility, as non-financial contributions are not recognised for common intention. The case of Mrs Burns is a notorious example of injustice, where she failed to establish an interest in the family home, after seventeen years cohabitation, during which she bore two children. Within the judiciary, there is concerns, with judges ‘stretching things as far as possible,’ but being limited by the ‘history and weight of the case law.’
Therefore, the law is outdated, but it is also not fit for purpose. The nature of TLATA disputes leaves the law beset by judicial confusion, with the outcomes of litigation ‘far from certain and highly case specific.’ This generates serious issues of uncertainty. Seeking legal advice and the court process is very expensive, often leaving weaker economic parties without access to a fair outcome. As a result, the complexity of trusts allows cohabitants to exploit an inequality of bargaining power in negotiations. Even if parties can afford the legal costs, they often spend far more than is warranted by ‘honestly, but mistakenly reinterpreting the past in vengeful terms,’ leading to disproportionate costs in a full examination of the facts. Therefore, the government has a responsibility to clarify the law to address the discriminatory impact and generate greater confidence of vulnerable parties as to their position.
Autonomy
The autonomy versus protection debate is at the heart of the controversy over cohabitation law reform. The autonomy side argues that cohabitation should be a ‘law-free space,’ whereby those who choose not to marry should not have a marriage-like legal regime forced on them. It is argued that this would be an ‘unacceptable state interference and profoundly illiberal.’
A key proponent of the autonomy side is Baroness Deech, who argues it is an ‘issue of freedom.’ This is rooted in concerns that enforcing legal consequences would be a ‘violation of individual dignity, autonomy, privacy and the right to self-determination.’ This is a strong argument, given the importance of autonomy and freedom of choice in the 21st century. As John Stuart Mill argued, a person’s ‘own mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode.’ However, this is a grave oversimplification of the reality, attributing genuine intention to exist in a ‘legal vacuum’ as the only reason to not be married. This disregards many other considerations, such as the costs of marriage, unawareness of the legal differences or one party’s reluctance and exploitation of their stronger position.
It is arguable that if a couple chooses not to formalise their relationship, they have a responsibility to protect themselves. However, there is potential for law reform that respects parties’ autonomy in the use of an opt-in or opt-out scheme. Supporters of the autonomy side of the debate raise concerns over an opt-out scheme, due to the continued allowance of legal effects without the knowledge or will of the parties. In particular, Baroness Deech argues that the law should encourage cohabitants to make their own agreements. However, creating a law solely based on cohabitation agreements assumes a level of self-interest and common sense far above the reality of intimate relationships. This model of cohabitation law disregards the optimism bias that plays a crucial role in the start of relationships. In practice, opting out or forming agreements is very rare, as the law is plagued by lack of awareness and incorrect assessments of parties’ positions. Therefore, a specific legislative scheme is needed to protect against a knowledge gap in the law.
Common Law Marriage Myth
This frequent misunderstanding undermines the autonomy argument, suggesting that autonomous choices to avoid legal consequences are often not made in the first place. In the British Social Attitudes Survey 2019, 46% of people falsely believed in the ‘common law marriage myth,’ meaning the incorrect assumption that the law treats them as if they were married, after a certain amount of time. This is extremely concerning because many cohabitants are shocked to find they have lived ‘according to an assumption that is totally false,’ placing them at a significant disadvantage post-separation. As more couples live and parent as cohabitants without societal stigmatisation, more people expect the law to recognise this family reality. As Simon Duncan describes, ‘in their eyes they are as good as married’ given the ‘lived law’ of everyday life where cohabitation is equated with marriage. These are fair assumptions, as family decisions are generally made pragmatically based on everyday social norms. Therefore, the failure to reflect the social reality is a worrying gap in the current law. As a result, this essay argues that there is a need to update the law to take a function, rather than form approach to cohabitant relationships.
Form or function?
The differing outcomes of marriage and cohabitation show the current legal approach that the status of being married gives rise to the expectation of property sharing. This focus on form generates the discriminatory impact, ignoring the reality that cohabitation ‘often fulfils all the functions of marriage.’ Alternatively, a functional approach considers that a partner earns their share of their partner’s assets by their equal contributions, regardless of whether this is in different spheres. This idea of earning is more deeply embedded in modern social attitudes, which question the ‘legal monopoly’ held by marriage in law. A functional approach has been reflected in other aspects of family law. For example, in Ghaidan v Godin-Mendoza, it was held that same-sex partnerships should be treated the same as heterosexual ones, due to the shared ’qualities of intimacy, stability and interdependence.’ Deciding outcomes based on valuing the qualities of the relationship could equally be applied to asserting the functionally similar nature of cohabitation to marriage.
Protection
A functional approach favours the protection side of the debate. A legal regime aimed at protection is principally concerned with the discriminatory impact of prioritising financial contributions over domestic contributions, leaving the financially weaker party with nothing upon separation. Non-discrimination between the roles within a relationship is a well-established principle in divorce and dissolution, following the decision in White v White in 2000. Yet, the same decisions in cohabitant’s relationships leave women at risk of exploitation, from the inherent danger of unequal bargaining power in contract law.
Interestingly, a higher proportion of cohabitating couples have an age difference of five years or more (33.7% in 2021) than married couples (31.1%). This exacerbates the effects of relationship-generated disadvantage and economic power imbalance. As a result, the narrative of cohabitation being a mutual and autonomous choice is inaccurate, disregarding the potential power imbalances where one party refuses to formalise the relationship, leaving the other with the illusory choice of an informal relationship or no relationship at all. It overlooks ‘the misinformed couples, the no-choice couples, and the inertia couples.’ This leaves an unjust gap in the law that fails to redress relationship-generated disadvantage that is ‘more of a reality than a myth.’ Therefore, reform of the law is necessary to recognise the social reality of modern families, where slight infringements of autonomy are justifiable to ‘pursue an important social policy aim’ of addressing this power imbalance.
Baroness Deech vehemently opposes the need for reform based on protection, in arguing that it is based on outdated gender stereotypes portraying women as perpetual dependents, ‘condemned to a life of housewifery, servitude and disadvantage.’ She argues that laws to address gender imbalances are unnecessary, as women are now just as capable as men at becoming economically independent. This takes a form approach, unrealistically overlooking systemic inequalities, with the continuance of a gendered divide in paid and unpaid work within the household. In reality, as Sutherland notes, ‘equality of opportunity, employment and income remains an elusive aspiration’ for many women. Consequently, protective laws are still important in the 21st century to modernise outcomes.
Undermining marriage
An area of concern is that automatically assigning marriage-like rights to unmarried couples undermines commitment. The government has indicated its preference for promoting marriage, as providing a ‘strong foundation for stability.’ This is likely due to concerns of increasing the risks of family breakdowns, as cohabitant relationships are more prone to breakdown. However, in counter, Katherine O’Donovan has argued that aligning the two relationship structures may help to ‘stabilize and discipline’ informal relationships, by only offering protection to those who mimic marriage. With rising divorce rates, it is difficult to measure the impact alignment would have.
In spite of this, there are reasonable ways to introduce reform, without undermining the ‘gold standard’ of marriage. For example, the Law Commission has moved away from a ‘marriage-like’ definition of cohabitation to a more neutral definition based on co-residence as a couple, with a minimum duration for non-parenting cohabitants. The Scottish reform in Family Law (Scotland) Act 2006 was designed to ‘provide safeguarding protection’ while ‘not bringing cohabitant rights in line with those for spouses.’ This was achieved by limiting financial orders to capital sum orders based on economic advantage and disadvantage, seeking a straightforward ‘clean break.’
Conclusion
In conclusion, this essay agrees that the government has a responsibility to update the outdated and discriminatory law on cohabitation, which disproportionately disadvantages women. It concludes that reform to protect economically vulnerable parties and to reflect the social reality of the functional similarities between cohabitant relationships and married partners is needed. This essay considers concerns over autonomy and the undermining of marriage to be minimal, reasoning that reform respecting such concerns is still possible, through the use of opt-out schemes and avoidance of marriage-like definitions, and justifiable in the pursuance of non-discrimination.
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Bibliography
Table of Cases
Burns v Burns [1984] Ch 317, [1984] 2 WLR 582
Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557
Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432
White v White [2001] 1 AC 596 (HL)
Table of Legislation
Family Law (Scotland) Act 2006 Matrimonial Causes Act 1973
Trusts of Land and Appointment of Trustees Act 1996
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