On the 4 August 2022, the House of Commons Women and Equalities Committee published The rights of cohabiting partners, HC 92, extracts of which are reproduced below. The Inquiry was launched in April 2021 and received just under 380 submissions from the public, academics, practitioners and campaign groups. A large number of submissions expressed religious objections to reform.
Cohabitation is the fastest growing family type in England and Wales. In 2021 there were around 3.6 million cohabiting couples in the UK compared with 1.5 million in 1996.
Whereas married couples and civil partners in England and Wales have certain legal rights and responsibilities upon divorce or death, cohabitants receive inferior protections. Notwithstanding the legal reality, many people believe in the so-called “common law marriage myth”, which is the erroneous belief that after a certain amount of time of living together, the law treats cohabitants as if they were married. On family breakdown, cohabitants must rely on complex property law and trusts principles. Schedule 1 to the Children Act 1989 is outdated, mostly benefits the children of wealthy parents and is in need of reform. On death, cohabitants do not automatically inherit from their partner.
The lack of legal protection on family breakdown means that women, including women from an ethnic minority background and those who have had a religious-only wedding, can suffer relationship-generated disadvantage. It is time the law adapted to the social reality of modern relationships while still recognising the social and religious status of marriage. The Government should legislate for an opt-out cohabitation scheme as proposed by the Law Commission. The Ministry of Justice should commission a refresh review of the recommendations to see if they need updating. We also support the Law Commission’s 2011 proposals concerning intestacy and family provision claims for cohabiting partners. We call on the Government to implement those proposals.
The Government should also publish clear guidelines on how pension schemes should treat surviving cohabitants when claiming a survivor’s pension. We also recommend that Ministers review the inheritance tax regime so it is the same for cohabiting partners as it is for married couples and civil partners. Finally, the Government should launch a public awareness campaign to inform people of the legal distinctions between getting married, forming a civil partnership and living together as cohabiting partners.
Conclusions and recommendations
- Modern relationships
“The Government should conduct a public awareness campaign to highlight the legal distinctions between getting married, forming a civil partnership, or choosing to live together as cohabiting partners. (Paragraph 24).
- Equalities issues
The Government should undertake a targeted information campaign aimed at women in religious communities where religious-only marriages are commonplace, highlighting the risks of not having a ceremony which meets legal formalities. Such a campaign will need to consider the Law Commission’s recommendations for weddings law reform. (Paragraph 32).
- Key features applicable upon relationship breakdown
The Government should reform family law to better protect cohabiting couples and their children from financial hardship in the event of separation. We recommend an opt-out cohabitation scheme as proposed by the Law Commission in its 2007 report on the financial consequences of relationship breakdown. The Government should make a commitment to publishing draft legislation for pre-legislative scrutiny in the 2023–24 Session of Parliament. In the meantime, the Ministry of Justice should commission a refresh review of the Law Commission’s 2007 proposals to see if they need updating. (Paragraph 64)
- Death of a partner
The Government should immediately: a) implement the Law Commission’s 2011 recommendations concerning intestacy and family provision claims for cohabiting partners; b) publish clear guidelines on how pension schemes should treat surviving cohabiting partners, including what those partners are entitled to, and what evidence they will need to access survivor’s pensions; and c) review the inheritance tax regime so it is the same for cohabiting partners as it currently is for married couples and civil partners. (Paragraph 73)
Dr Andy Hayward, Associate Professor at Durham Law School, Specialist Adviser to the Committee during this Inquiry, has posted a twitter thread summarizing the report.
The Women and Equalities Committee is appointed by the House of Commons to examine the expenditure, administration and policy of the Government Equalities Office (GEO).