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Increase in cohabitation leaves many without legal protection

The Office for National Statistics released a bulletin this Autumn (2016) entitled Families and Households in the UK: 2016, illustrating trends in…

The Office for National Statistics released a bulletin this Autumn (2016) entitled Families and Households in the UK: 2016, illustrating trends in living arrangements in the UK including families (with and without dependent children), people living alone and people in shared accommodation, broken down by size and type of household.

Key findings include:

  • An increase in the total number of families in the UK.
    Unsurprisingly, the total number of families in the UK has increased from 16.6 million in 1996 to 18.9 million in 2016.
  • Marriage remains the most common type of family unit.
    There were 12.7 million married or civil partner couple families in the UK in 2016. This was the most common type of family unit.
  • Cohabitation is gaining in popularity.
    Cohabiting couple families were the fastest growing family type between 1996 and 2016, more than doubling from 1.5 million families to 3.3 million families.
  • Same sex couples accounted for 1% of all couple families.
    The largest number of same sex couple families were same sex cohabiting couple families, 87,000; this was followed by civil partner couple families, 47,000 and same sex married couple families, 29,000.

Families by family type

Increase in cohabitation

Although married couples remain the most common type of family unit, there has been a dramatic increase in cohabitation.

As Pamela Cobb of the Population Statistics Division, Office for National Statistics reports:

"In 2016, married or civil partner couple families remained the most common type of family in the UK although cohabiting couple families were the fastest growing family type over the last 20 years. The growth in cohabiting couple families may be due to couples choosing cohabitation as an alternative or precursor to marriage."

While many opposite sex couples cohabit with a view to marrying in the future, others choose deliberately to live together and ‘opt out’ of marriage. The same applies to same sex couples, who currently they have the option of civil partnership as well as marriage if they seek to formalise their relationship.

There remain significant distinctions between the legal status of a married and unmarried couple which are not always fully appreciated by the couple themselves, professionals advising those couples or society at large.

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The Myth of the Common Law Spouse

It remains a popular misconception‎, often erroneously promoted in certain aspects of the press and media, that once a couple have lived together for two, five or more years, they acquire the status of 'common law marriage' and with it, financial remedies on separation arising from their relationship. This is wrong, and we, as family law professionals, continue to work hard to dispel that myth.

It is wrong to say that in all situations, a cohabitant has no legal rights in the event of a relationship breakdown, but the legal remedies are extremely restrictive and based solely on the law of property and trusts, rather than any element of fairness/discretion, as would apply on a divorce. Unless the couple start a family together, when a different legal regime applies to cater for the financial needs of any children (albeit the regime is not as generous as that on divorce), there is no obligation for one party to support the other with maintenance payments, and there may well be no recourse to any property/a home.

The court is unable to consider the financial and housing needs of the parties and cannot take into account non-financial contributions to the relationship, such as looking after the home or caring for any children of the relationship. This can leave one partner extremely vulnerable if the relationship subsequently breaks down. As there is no obligation for one party to support the other financially post separation, even if one partner has given up work to care for dependent children they would not be entitled to maintenance payments for themselves. They would be entitled to child support from the other parent if the children made their main home with them.

One partner can also be placed in a precarious position if the couple have been living in rented accommodation but the tenancy is only in one partner’s name. Similarly one partner can be left vulnerable if the property the couple have been sharing is owned in the sole name of just one of them. In such circumstances they would not have an automatic right to continue living at the property if their partner asked them to leave. Although they could apply to the court for what is known as an “occupation order” in certain, limited, circumstances, litigation can be expensive and there are no guarantees that any such application would be successful.

Many cohabitees are also unaware that they are unable to claim a share of any savings or assets held in their partner’s sole name which they have acquired out of their own money. This will include any pension assets the other party may have acquired.

For many separated couples, in the absence of establishing a claim, the economically weaker party, often the woman, can face a poor financial future, possible homelessness, a lack of pension and no income.

As mentioned above, the law may be more generous in the event of the parties having children, when an alternative legal regime applies.

Families by type in 1996 and 2016

Law reform for cohabiting couples?

Given the rise in the number of cohabiting families in the UK, many family law professionals, organisations and individuals have been campaigning for reform in this area. Many argue that the law does not reflect the trends in modern society and that something needs to be done to ensure that cohabiting couples are offered a greater level of legal protection.

Although law reform is demanded, and the Cohabitation Rights Bill is in the early stages of passing through Parliament, there is little legal protection available to cohabiting couples in the UK. It has been suggested that civil partnership may offer a way to bridge the gap in rights of cohabiting opposite-sex couples but this in currently not possible in the UK.

Many cohabiting couples have no desire to enter into a formal marriage, but welcome legal recognition of their relationship and are keen to secure some financial protection in the event that their relationship breaks down.

Could civil partnership bridge a gap in the rights of cohabiting couples?

Adeline Cosson, 24 and Kieran Hodgson, 22 entered into the first opposite sex civil partnership in Douglas, the capital of the Isle of Man, after Manx legislation made civil partnerships available to everybody this summer. They were reported to be the first opposite sex couple to choose to cement their relationship via a civil partnership, as opposed to a traditional marriage.

Although the couple are open to the idea of marriage and have not ruled it out at some point in the future, they are reported as saying that marriage was not the right option for them at the present time.

Another opposite sex couple seeking to enter into a civil partnership are London based couple, Charles Keidan and Rebecca Steinfeld. They are argue that heterosexual couples face discrimination under the present law and that civil partnerships should be available to everyone. Like Cosson and Hodgson they do not wish to enter into marriage but crave the legal rights and financial safety net that civil partnerships have to offer. Whilst Keidan and Steinfeld recognise that marriage works for many, they simply did not feel that it was right for them. They advised The Telegraph that they “didn’t want all the social pressures and expectations that surround marriage”.

The couple claim that they realised very early on in their relationship that they wanted to commit to each other, but subsequently concluded that what they wanted was a civil partnership, as opposed to a traditional marriage.

Civil partnerships offer a lot of the same legal protections as marriage in terms of property rights and exemptions from inheritance tax, and are viewed by some as akin to a modern social contract.

Steinfeld and Keidan feel so strongly that the current law discriminates against them on the basis of their sexual orientation that they have launched a legal battle against the Government. Over the last 4 years they have devoted their time and energy to fighting this litigation. Notwithstanding their relentless determination and commitment, their claim was rejected by the Court of Appeal on 21 February 2017.

Although the Appeal Judges were critical of the law as it stands and acknowledged that there was a potential breach of their human rights, ultimately they concluded that the Government needed more time to decide the future of civil partnerships.

Following their defeat at the Court of Appeal they indicated that they are not prepared to give up their fight and have promised to appeal to the Supreme Court. They hope however that the Government will decide of its own volition to open up civil partnerships to everyone, regardless of sexual orientation. Meanwhile, over 70,000 people have signed a petition backing their case.

Steinfeld and Keidan have had to come to terms with the fact that they will not be able to enter into a civil partnership in the near future. They have no choice other than to wait and see whether the Government will be proactive in making a decision in this regard or whether it will wait until it is forced to make a decision by the Supreme Court.

Marriage takes preference among same sex couples as civil partnership figures fall

While civil partnerships still outnumber marriages among same sex couples, there has been a dramatic decrease in the number of same sex couples entering into civil partnerships following the introduction of same sex marriage in March 2014. The National Office of Statistics report that civil partnership formations have declined by 85% since 2013.

More same sex couples are choosing equal marriage over civil partnership, leading some commentators to suggest that civil partnerships could become obsolete at some point in the future and could either be phased out or completely abolished.

Despite the fall in interest amongst same sex couples, there is an increasing appetite amongst opposite sex couples to enter into a civil partnership.

Steinfeld and Keidan highlight the fact that 2,500 civil partnerships have been formed since same sex marriage was introduced. Accordingly they argue that there is still a demand for civil partnerships.

Cohabitation Agreements

In the meantime, pending any further developments in this area, it is prudent for all cohabitees to consider entering into a cohabitation agreement, if they have not already done so. Such an agreement can set out the couple’s intentions with regards to not only financial arrangements whilst they continue to live together, but also the ownership of assets upon separation.

If the couple decide to purchase a property together, they should always explore the possibility of a declaration of trust defining each partner’s share in the property.

Fiona Turner, Rachel Lim and Tania Derrett-Smith are all members of the family law team