Statistics published this month by the Office of National Statistics show that the number of couples in the UK who choose to live together without marrying (or entering a civil partnership) has doubled in the last 15 years, from 1.5 million to 3 million. These numbers will continue to rise as a new report from the centre for social justice predicts married couples will be in the minority by 2050. Yet this increasingly significant sector of society is left unprotected financially in the event that their relationship breaks down. These new statistics will reignite calls for law reform to give financial protection to cohabitants.
Recent surveys show that over half of those who cohabit still believe in the myth of common law marriage such that when they split they have automatic rights similar to those available divorce. The harsh reality is that unmarried couples have no rights arising from their relationship, be it long or short or whether they have children together.
Unless the home is jointly owned, it can be difficult as well as inordinately costly for cohabitants to argue that they have a share in the other's property. Claims of this nature are determined by reference to complex and esoteric trust law. Financial provision for children will inevitably be limited in duration and, unless the paying parent is wealthy, limited in amount.
In its 2007 report, the Law Commission recommending reform, described the current law as 'unsatisfactory, complex, uncertain, expensive to rely on, and....often gives rise to outcomes that are unjust'.
The effect is best highlighted by the case of Mrs Burns who lived with her partner for 19 years bearing and bringing up their two children but was left homeless and without income when he ended their relationship. The law was unable to assist her.
The judiciary too have added their voice for change, with Lord Justice Wall saying: 'I am in favour of cohabitees having rights because of the injustice of the present situation... Women cohabitees, in particular, are severely disadvantaged by being unable to claim maintenance and having their property rights determined by the conventional law of trusts.'
Although this quote is only a year old, the devil's advocate would say it's out dated. Do women or indeed any individuals really need this protection? More and more families have unconventional ways of distributing the labour of family life. Traditional roles are increasingly reversed with women as breadwinners and men staying at home to look after the children. Is it really true to say that people are ignorant of the rights attaching to their status or is this just a prop for the proponents of blanket protection?
Isn't the position that cohabitants find themselves in simply an expression of their autonomy - their right to choose not to be bound by the matrimonial legal framework? Those who argue against the need for reform will usually say 'if they want rights, they should get married'.
But sometimes one party wants to marry but the other doesn't. Should one of them walk away from an otherwise happy relationship simply because their other half won't commit legally? If cohabiting relationships represent the 'new marriage' (with over 40% of children being born outside wedlock) surely those in them should be entitled to protection from the state in the way that married couples are? If society is going to recognise and support families of all shapes and sizes then the legislature needs to make a stand in this area and to catch up with the reality of societal norms.
The Law Commission was very clear on this issue. In its 2007 report it unequivocally recommended reform and that recommendation was supported by various interest groups including Resolution (the national association of family law solicitors). This is not pioneering. Australia introduced cohabitation legislation 25 years ago, and other European countries, for example Holland, offer protection to their cohabitees.
However, successive governments have spurned the opportunity to reform the law. In 2008, the Labour Government responded to the Law Commission's report by stating that it wished to seek research findings on recently introduced cohabitation law in Scotland. Then, in September 2011 the Coalition Government kicked it further into the long grass by announcing that it did not intend to take forward the Law Commission's recommendations. The irony of this decision (accentuated by the current cut backs in welfare spending) is that those coming out of a cohabiting relationship unable to support themselves inevitably have to fall back on the state.
With the publication of these latest cohab stats the time is ripe for this issue to be revisited. In the meantime, cohabitating couples take note. Whilst the landmark divorce case of White v White [2000] emphasises 'there is no place for discrimination between husband and wife and their respective roles' there remains a clear distinction between the treatment of married couples and cohabiting couples under the English legal system.