Vardags Family Law Essay competition 2024/25 | Eleanor Ewing

Eleanor Ewing - University of Kent

The case for cohabitation legal reform

Cohabitation is a rapidly growing form of family structure, with 22.7% of people living as cohabitees in 2022, rising from 19.7% in 2012.(1) The Office for National Statistics considers a cohabitee someone 16 or over, living together as a couple but are not married or in a civil partnership.(2) Despite the growth of cohabitation, alongside the decrease in marriage,(3) little has been done to reform the current cohabitation law. Cohabitees do not have access to the same financial and property remedies in the event of a relationship breakdown as spouses do. For the purposes of this essay, spouses will be used to refer to both married couples and civil partners, as they receive the same remedies in the event of a relationship breakdown.(4) The lack of remedies for cohabitees can leave the financially-weaker party vulnerable. The law regarding cohabitees must be reformed to afford them greater protections. Academics such as Griffiths have identified the protective role family law is designed to fulfil,(5) therefore if cohabitees are being left more vulnerable than spouses, the laws regarding them must be reformed and expanded to protect cohabitees.

Issues facing cohabitees

The laws regarding cohabitees, and whether they are treated the same as spouses, are inconsistent across the law. For example, the Rents Act 1977 states ‘a person who was living with original tenant as if they were a married couple or civil partners is to be treated as the spouse or civil partner of the original tenant’,(6) or the Social Security Contributions and Benefits Act 1992 (7) treats cohabitants as though they are spouses when calculating means-tested benefits. However, as the House of Commons Women and Equality Committee (HoCWEC) identified, when it comes to laws regarding relationship breakdown, there are ‘no statutory scheme[s] offering remedies’ (8) and that cohabitants instead rely on existing laws across property and trust law. The HoCWEC also identified that ‘unmarried couples have no automatic rights to ownership of each other’s property upon relationship breakdown.’(9) Instead, they must often rely on the laws under the Trust of Land and Appointment of Trustees Act 1996 (TOLATA), to consider whether a cohabitee has a right to the property through a constructive trust. However, there has been much criticism that the laws surrounding constructive trusts (10) is that they heavily value financial contributions,(11) leaving the financially-weaker party vulnerable if they cannot prove they have made legally sufficient contributions to the property, and therefore cannot establish a constructive trust. Furthermore, Barlow points out that attempting a claim under TOLATA is ‘complex [and] very expensive’,(12) and the financially-weaker party is less likely to be able to afford to push for a trust in the first place. Cohabitants cannot access financial and property remedies that may be essential to their financial well-being in the way spouses can when relationships break down.

Gordon-Bouvier talked of the ‘relational vulnerability’ (13) theory, where she describes: ‘a form of situation vulnerability in that it is confined to those intimate relationships where the parties’ conduct has caused one partner to become economically disadvantaged.’(14) These relationship-generated disadvantages leave one party more vulnerable because of the relationship. The Law Commission pointed out how the primary carer of children is more likely to experience economic disadvantage after the relationship breakdown.(15) These disadvantages more heavily affect women, as they are more likely to give up career opportunities to be the primary carer or to take on the majority of domestic labour.(16) This is seen to be true regardless of the party’s beliefs on the division of domestic labour, due to the ‘logic of gendered choices’.(17) Couples will often ‘fall’ into these roles, regardless of their prior views because of existing cultural norms. The current cohabitation law leaves many women vulnerable. It does little to alleviate relationship-generated disadvantages in the way that divorce law does.

Issues with the government’s current approach

The Government’s current rejection of cohabitation reform hinges on two ideas: that those who do not marry do not want the law to infringe on their relationship and that doing so would violate their personal autonomy, and that recent reforms, such as the Civil Partnership, Marriages and Deaths (Registration) Act 2019 (CPMDRA), are sufficient in remedying cohabitees’ disadvantages.

The government often criticises cohabitation reform proposals as placing ‘obligations on people who did not choose them’.(18) They want to uphold the current opt-in system of formalising a relationship through marriage or civil partnership. To impose obligations on those who have not formalised their relationships would be an overstep. However, this argument can be rebutted as around half of people in England and Wales believe cohabitants have the same rights, protections and obligations as married couples. Barlow and Smithson identified this issue as the ‘common law marriage myth’.(19) In 2001, 56% of people believed cohabitants have the same rights as spouses.(20) Little has been done to dispel this myth, in 2020 46% of people believed in this same myth.(21) If a significant amount of people already believe the obligations of cohabitants are the same as spouses, the idea that cohabitants actively reject having legal obligations placed upon them cannot be wholly true. Furthermore, if cohabitants believe they have these same protections, they are less likely to formalise their relationship, as they do not believe they need to do so. This, once again, leaves parties vulnerable when relationships break down.

Griffiths has criticised this view as being too simplistic, as it expects people to behave in a ‘legally rational’ way. She argues that spouses do not choose to formalise their relationships for protection, and cohabitants do not avoid marrying to evade obligations. She argues the government’s position is not backed up by research.(22)

Prior to the passing of the CPMDRA, a frequent suggestion for cohabitation was to allow opposite-sex couples to have a civil partnership. Those who are ideologically opposed to marriage, whether that be because of political reasons, or previous negative experiences with marriages, would have an option to gain the protections marriage would afford. However, there are two main reasons this has not been a sufficient reform to remedy the disadvantages cohabitants face: one, as explained above, many cohabitants do not believe they need to formalise their relationship in order to be protected, and will not formalise their relationship; two, this approach only accounts for cohabitants who oppose the institution of marriage.

Barlow and Smithson identified four types of cohabitants: the ideologues, who are opposed to the institution of marriage; the romantics, who want to marry and cohabit as a step towards marriage; the pragmatists, who take a ‘functional view’ on whether they marry or cohabit; and the uneven couple, ‘where one wants to marry, and one does not’.(23) Civil partnership for opposite-sex couples is only a suitable fix for ideologues.

The government’s current approach falls short in providing widespread protection as it overly focuses on the ideologues. Hayward argues this is in large part due to the Steinfeld (24) litigation in making the ideologues the ‘archetypal cohabiting couple.’(25) Any solution that requires couples to formalise their relationship will leave people vulnerable, particularly those in uneven couples.(26) When certain parties are reluctant to formalise their relationship, or where parties believe in the common law myth, some parties will always be left behind. Cohabitation law itself must be reformed to allow for adequate protection for vulnerable people.

Reform

Cohabitation law is currently failing to fulfil the protective role of family law. To remedy this it has been proposed to adopt an opt-out system, whereby cohabitants are treated akin to spouses but with the ability to remove these obligations if they wish to. This approach has been adopted in countries such as New Zealand (27) and Australia (28) which both have ‘de facto’ couples. When cohabitants who ‘have a relationship as a couple living together on a genuine domestic basis’ (29) separate, they have access to the same protections as divorcing spouses have. A similar approach is used in Scotland, under the Family Law (Scotland) Act 2006. Where cohabitants do not want these legal obligations, they can create a cohabitation contract to ‘opt-out’ of them.(30) This approach is endorsed by the Law Commission and the HoCWEC. A further protection proposed is to have independent legal advice for each party before creating a cohabitation contract.(31) This would help prevent financially-stronger parties from wielding this power to prevent the financailly-weaker party from accessing remedies. If both parties are fully aware of the consequences and have been adequately legally advised, then they may remove themselves from any obligations. The choice to opt-out may still be subject to court discretion, to add further protection if opting-out will cause one party unfair, determinantal effects. These reforms will allow for family law to fulfil its protective role, by providing financial and property remedies to those made more vulnerable due to relationship-generated disadvantages, while maintaining the party’s autonomy.

criticisms of reform

There has been criticism that adopting the proposed reform, bringing about a more protective regime towards cohabitants, would reinforce gender roles. Baroness Deech believes that the basis of reform is ‘based on gender stereotypes that portray the woman in the relationship as disadvantaged’ (32) and are ‘condemned to a life of housewifery, servitude and disadvantages.’ (33) Auchmuty fears that the protective nature of the proposed reforms will ‘discourage further efforts within society towards gender equality or by individual women to achieve financial independence.’(34) While there may be a stereotype that women need protection, the fact that more women are disadvantaged due to relationships is the reality of the situation, rejecting reforms will not fix this stereotype. If we allow fears of reinforcing gendered stereotypes to prevent cohabitation reform, women will be left financially vulnerable. Changing societal views on gendered stereotypes is a lengthy process, and the current reality is that women are more likely to give up formal work for domestic roles, and therefore are more vulnerable to relationship-generated disadvantages. There is a need to address greater gender inequalities more holistically, law itself will not fix these issues, but legal reforms should be a part of that holistic approach. Refusing reform increases the financial vulnerabilities of women, and improving the lived realities of these women should be the central factor. Cohabitation reform is the best way to immediately improve these lived realities.

Conclusion

Relationship-generated disadvantages affect cohabitants, mostly women, in the same way they do married parties. The financial vulnerability these disadvantages cause are worsened as cohabitants are not able to access the remedies marriage affords. The majority of law, as Professor Scherpe observes, infringes on autonomy to ‘address an imbalance of power’,(35) the law is frequently trying to strike the balance between providing protections without overly breaching personal autonomy. The proposed reform of adopting the Scottish system of cohabitation contracts is a far more sufficient way to balance these factors. It better protects vulnerable parties than the current English and Welsh system, while still providing an opportunity to exercise autonomy and opt-out of these obligations. The government’s rejections of reform are based on unfounded ideas that cohabitants do not want these obligations and leave many women financially vulnerable after the breakdown of a relationship. These reforms are necessary to allow family law to fulfil its protective role in regard to cohabitants. Cohabitation reform will not fix all the issues of relationship-generated disadvantages, but it is an essential step towards the greater protection of women during the breakdown of relationships.

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(1) ‘Population Estimates by Marital Status and Living Arrangements, England and Wales - Office for National Statistics’ (www.ons.gov.uk 25 January 2024) accessed 7 December 2024

(2) Ibid

(3) Ibid

(4) Civil Partnership Act 2004

(5) Kathy Griffiths, ‘Cohabitation Law Reform in England and Wales: The Case for Reform and Challenges of Definition’, in Rebecca Probert and Sharon Thompson (eds) Research Handbook on Marriage, Cohabitation and the Law (Edward Elgar Publishing 2024)

(6) Rent Act 1977, Schedule 1, paragraph 2(2)

(7) Social Security Contributions and Benefits Act 1992, ss124, 134, 136-7

(8) House of Commons Women and Equalities Committee, ‘The Rights of Cohabiting Partners: Second Report of Sessions 2022-23’ (2022)

(9) Ibid

(10) See Lloyds Bank v Rosset [1991] 1 A.C. 107, Burns v Burns [1984] Ch 317 and Stack v Dowden [2007] 2 AC 432

(11) Gillian Douglas, Julia Pearce and Hilary Woodward, ‘A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown’ (2007)

(12) HoCWEC (n8)

(13) Ellen Gordon-Bouvier, ‘Viewing Domestic Property Disputes from a Vulnerability Perspective’ (2017) 23(1) EJoCLI

(14) Ibid

(15) Law Commission, ‘Cohabitation: The Financial Consequences of Relationship Breakdown’ (2007)

(16) HoCWEC (n8)

(17) Barbara Risman, Gender Vertigo: American Families in Translation (Yale University Press 1998)

(18) Hansard, Lords Debates, vol 796, col 1268 (15 March 2019) (Baroness Chakrabarti)

(19) Anne Barlow and Janet Smithson, ‘Legal Assumptions, Cohabitants’ Talk and the Rocky Road to Reform’ [2010] CFLQ

(20) Anne Barlow, ‘Modern Marriage Myths: The Dichotomy between Expectations of Legal Rationality and Lived Law’, Cohabitation and Religious Marriage (Cambridge University Press 2021)

(21) Ibid

(22) Griffiths (n5)

(23) Barlow and Smithson (n19)

(24) R (Steinfeld & Anor) v Secretary of State for International Development [2018] UKSC 32

(25) Andy Hayward, ‘The Steinfeld Effect : Equal Civil Partnerships and the Construction of the Cohabitant.’ [2019] CFLQ

(26) Barlow and Smithson (n19)

(27) Property (Relationships) Act 1976, ss2C-2D

(28) Family Law Act 1975 (Cth), s4AA(1)

(29) Ibid

(30) Sharon Thompson, ‘Cohabitation contracts and gender equality’, in Rebecca Probert and Sharon Thompson (eds) Research Handbook on Marriage, Cohabitation and the Law (Edward Elgar Publishing 2024)

(31) Elaine Sutherland, ‘From “Bidie-In” to “Cohabitation” in Scotland: The Perils of Legislative Comprimise’ (2013) 27 IJoLPF

(32) HoCWEC (n8)

(33) Ibid

(34) Rosemary Auchmuty, ‘The Limits of Marriage Protection in Property Allocation When a Relationship Ends’ (2016) 28(4) CFLQ 303

(35) HoCWEC (n8)

Bibliography

Auchmuty R, ‘The Limits of Marriage Protection in Property Allocation When a Relationship Ends’ (2016) 28(4) Child and Family Law Quarterly 303

Barlow A, ‘Modern Marriage Myths: The Dichotomy between Expectations of Legal Rationality and Lived Law’, in Akhtar R, Nash P and Probert R (eds) Cohabitation and Religious Marriage (Cambridge University Press 2021)

Barlow A and Smithson J, ‘Legal Assumptions, Cohabitants’ Talk and the Rocky Road to Reform’ [2010] Child and Family Law Quarterly

Civil Partnership Act 2004

Civil Partnership, Marriages and Deaths (Registration) Act 2019

Douglas G, Pearce J and Woodward H, ‘A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown’ (2007)

Family Law Act 1975

Family Law (Scotland) Act 2006

Gordon-Bouvier E, ‘Viewing Domestic Property Disputes from a Vulnerability Perspective’ (2017) 23(1) European Journal of Current Legal Issues

Griffiths K, ‘Cohabitation Law Reform in England and Wales: The Case for Reform and Challenges of Definition’, in Probert R and Thompson S (eds) Research Handbook on Marriage, Cohabitation and the Law (Edward Elgar Publishing 2024)

Hansard, Lords Debates, vol 796, col 1268 (15 March 2019) (Baroness Chakrabarti)

Hayward A, ‘The Steinfeld Effect : Equal Civil Partnerships and the Construction of the Cohabitant.’ [2019] Child and Family Law Quarterly

House of Commons Women and Equalities Committee, ‘The Rights of Cohabiting Partners: Second Report of Sessions 2022-23’ (2022)

Law Commission, ‘Cohabitation: The Financial Consequences of Relationship Breakdown’ (2007)

Property (Relationships) Act 1976

Rent Act 1977 R (Steinfeld & Anor) v Secretary of State for International Development [2018] UKSC 32

Social Security Contributions and Benefits Act 1992

Trust of Land and Appointment of Trustees Act 1996

‘Population Estimates by Marital Status and Living Arrangements, England and Wales - Office for National Statistics’ (www.ons.gov.uk25 January 2024) accessed 7 December 2024

Risman B, Gender Vertigo: American Families in Translation (Yale University Press 1998)

Sutherland E, ‘From “Bidie-In” to “Cohabitation” in Scotland: The Perils of Legislative Comprimise’ (2013) 27 International Journal of Law, Policy and the Family

Thompson S, ‘Cohabitation Contracts and Gender Equality’, in Probert R and Thompson S (eds) Research Handbook on Marriage, Cohabitation and the Law (Edward Elgar Publishing 2024)