Cohabitants and the law: should we regulate informal family relationships?

The ending of marriages and civil partnerships is highly regulated, with provisions in place to protect the interests of each party. However, cohabitants are not subjected to such protections, but the push for reform in this area is evident. Currently, there are no legal protections or regulations offered to cohabiting couples, even though 18% of couples who live together are in a cohabiting relationship. [i] This leaves separated couples at serious risk. Since the proposal for a Parliamentary Bill on the topic, a key discussion has arisen: should informal family relationships be regulated by the law?


At first glance, my answer was 'yes!'. Having seen separated cohabitants struggle to adjust to 'single life' with no legal support, I felt that the Bill was a necessary push to support financially weaker parties when leaving an informal relationship. Lord Marks, who proposed the Bill as a private member, adopted the same standpoint. [ii] Lord Marks suggested that creating a law that regulates cohabitation would support vulnerable parties, placing them in a much stronger legal position upon the breakdown of the relationship.


The proposed Cohabitation Rights Bill was intended to apply to 'either same-sex or opposite-sex couples who have lived together for three years or have at least one child together'. [iii] The Bill would implement an 'opt out' system in which cohabitants, who satisfy the above criteria, would be automatically affected unless they mutually agree to 'opt out'. [iv] It should be noted that as of 2021, the Cohabitation Rights Bill has reached its second reading in the House of Lords but is nowhere near enactment just yet as objections were raised.


At this point, it is important to acknowledge that many relationships suffer from a power imbalance, with some having a more prominent imbalance than others: i.e., where one party works full time on a high salary and the other is a stay-at-home partner. When they separate, cohabiting couples have no right to financial support, leaving the non-working partner in a vulnerable position. This is in stark contrast to divorcing couples who, in this instance, generally have their financial provisions decided prior to the granting of the ‘decree absolute’ dissolving their marriage. Implementing the Cohabitation Bill which allows financial provisions to be made for weaker parties, as well as intestacy rights, would protect vulnerable parties. [v]


It is also understood that the rights of children would be better protected by the Cohabitation Rights Bill. Furthermore, fathers would have automatic parental responsibility, giving cohabiting fathers more say in aspects of their children’s lives, such as medical care, etc. [vi] Currently, only fathers who are married or in a civil partnership have parental responsibility, unless they are listed on the child’s birth certificate. Allowing fathers better legal protection regarding their child would likely benefit both the parent and the child. [vii] The exception here being domestic abuse matters on which the Bill is silent, suggesting that not enough protection is being offered to victims in cohabitant relationships. It could, however, be argued that cohabitants are already sufficiently protected in these cases by the Family Law Act 1996 orders, and in future by the Domestic Abuse Act 2021 orders, making the silence on the matter a non-issue.


The Bill would also allow cohabitants to have automatic rights towards the family home, as opposed to the current system, based on which rights and interests must be proven. [viii] These would work as home rights do under section 30 of the Family Law Act 1996, which give a non-owning party the right to occupy the family home. [ix] This would provide stability and security for the non-owning partner as well as their children, preventing their sole protection from being founded in their relationship.


The above suggests that a Cohabitation Law would provide mass protection to what is becoming an increasingly standard type of relationship. [x] It would prevent financial abuse, or the parties being trapped in their informal relationship in order to provide protection to a surviving partner. Lady Hale agreed in Scottish Gow v Grant that cohabitation law 'redresses the gains and losses flowing from a relationship' and that the law is 'both practicable and fair'. [xi] This implies it would have a similar effect in England and Wales.

It must be noted that the Cohabitation Bill was much debated in Parliament, as Baroness Deech spoke against Lord Marks’ Bill in the second reading, raising important considerations. [xii] Upon review, my own opinion was swayed as the implications of such a law on cohabitants appear unduly restrictive. Baroness Deech suggested that regulating informal relationships only makes the law less liberal, forcing titles upon couples who have not chosen such commitment. [xiii] There are relationships of cohabitants that are not considered by the Bill, as cohabitants are defined within the constraints of same-sex or opposite-sex couples. This does not align with the liberal societal standard of relationship, which is steadily broadening, as it ignores polyamorous relationships involving multiple partners living together.

Would they be granted the same protections?


Similarly, those who are not in a relationship but choose to live together would not be protected, notably students in flat shares. Should the Bill be extended to apply to anyone living together? And more so, what does the Bill define as a couple? Some partners choose not to define their relationship, while others deny even being in a relationship at all. It is, clearly, unfair to impose legal restrictions on people who do not wish to enter formal agreements surrounding their relationship, particularly where they do not conform to the 'traditional' relationship.


Those who marry choose to enter that 'contract' and vow to uphold their duties to each other, as do those in a civil partnership. However, cohabitants have for whatever reason, chosen to not engage in a formal relationship, avoiding the imposition of such obligations on their relationship. Surely, it is not right to subject cohabiting couples to similar obligations to those imposed on married couples, as they have not expressly agreed to them. The law would be enforcing commitment to persons for simply participating in a sexual relationship.


We also need to consider that not everyone necessarily understands the law or how they may be affected by it. If the Bill proposed an opt-in system, then I would personally be in full support of it as it acknowledges the need to let people choose the definition and respective obligations of their relationship, making the law increasingly liberal. Having an opt-out system risks ignorance or misunderstanding of the law, allowing couples to become trapped by obligations they were unaware of until they separated. [xiv] If a couple does not know that the provisions apply to them, then how can they take the relevant steps to prevent this? Furthermore, it is necessary to have the capacity to enter a marriage, but cohabitation has no such requirement. This could lead to further misunderstandings and potentially the exploitation of vulnerable people whose relationship breaks down.


Overall, the proposed Cohabitation Bill appears to be raising significant issues. While the concept of providing protection to informal couples is a valid one, the actual enforcement of such law would be difficult. Similarly creating a law that does not restrict, or narrowly define relationships might turn to be a very difficult balance for Parliament to find.



Endnotes


[i] Seely A. and Others, ‘Common Law Marriage’ and Cohabitation' (Commons Library 2021).

[ii] Lord Marks of Henley-On-Thames, ‘Cohabitation Rights Bill [HL]’ (UK Parliament, 2019); HL Deb (15 March 2019) vol. 796, col 1258. Available at: https://library-guides.ucl.ac.uk/harvard/hansard (accessed 21 February 2022).

[iii] Cohabitation Rights Bill [HL] 97 pt1 para 2.

[iv] Ibid pt2 para 12.

[v] Ibid pt2 para 7, pt3 para 19.

[vi] Lord Marks of Henley (nii).

[vii] Caoimhe Sykes, 'Cohabitation Law: A United Kingdom only in name' [2019] Fam Law 1379.

[viii] Ibid.

[ix] Family Law Act 1996, S30.

[x] Seely A and Others, '’Common Law Marriage’ and Cohabitation' (Commons Library 2021).

[xi] Gow v Grant [2012] UKSC 29; HL Deb (15 March 2019) vol. 796, col 1261. Available at: https://library-guides.ucl.ac.uk/harvard/hansard (accessed 21 February 2022).

[xii] Baroness Deech, HL Deb (15 March 2019) vol. 796, col 1263. Available at: https://library-guides.ucl.ac.uk/harvard/hansard (accessed 21 February 2022).

[xiii] Ibid.

[xiv] Ibid.

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